The Appellant herein was aggrieved by the Ruling of Hon. C.N.C Oruo (PM) delivered on the 22nd of March 2024 in Rongo Misc. Application No. E007 of 2020 and it lodged the appeal herein vide Memorandum of Appeal dated 12th April 2024 on the following grounds:
1. THAT the Learned Magistrate erred in law by granting the orders sought in the 1st Respondent's application dated 23rd October 2023, without considering in totality the grounds in the Appellant's Replying Affidavit, submissions thereof and the evidence on record.
2. THAT the Learned Magistrate erred in law in unreasonably and unjustifiably allowing the 1st Respondent to be joined as an interested party in an already heard and determined suit.
3. THAT the Learned Magistrate erred in law in unreasonably and unjustifiably ordering that the Appellant herein was liable to pay Auctioneers costs on recalled warrants.
4. THAT the Learned Magistrate erred in law by failing to consider that the warrants of attachment and proclamation dated 22/4/2022 had been held unenforceable and recalled.
5. THAT the Learned Magistrate erred in law by allowing and applying the wrong procedure for the assessment of Auctioneers costs.
6. THAT the Learned Magistrate erred in law by failing to consider the submissions and evidence on record duly produced by the Appellant in making it determination.
7. THAT the Learned Magistrate erred in law by misdirecting himself that the Appellant had not made a meritious case disproving the 1 st Respondent's case.
IT IS PROPOSED TO ASK THIS HONOURABLE COURT:
1. THAT the instant appeal be allowed.
2. THAT the Ruling of Hon. C.N.C Oruo dated and delivered at Rongo on 22 nd of March 2024 be reviewed/set aside.
3. THAT the Respondents to bear costs of this Appeal.
Uon the Appellants filing Records of Appeal as directed by the court the Respondents filed a preliminary objection dated 10th February 2025 on the grounds that the 1 st Respondent will contend as a preliminary point of law, to be determined in limine that the Appellant's Appeal is incompetent, amorphous, hopelessly misconceived, frivolous, totally devoid of merit and mala fides for the reason inter alia, that the Appellant have not complied with the mandatory provisions of Rule 55 (5) of the Auctioneer's Rules of 1997 (Rev.2009) that states that " The memorandum of appeal by way of chamber summons setting out the grounds of appeal SHALL befiled within 7 daps from the decision ofthe Registrar or Magistrate". In this case the purported appeal was filed on the 12th April, 2024-21 days from the date of the ruling on the 22nd March, 2024 without the leave of the court and in a form not provided for.
Further that by virtue of the mandatory provision of Rule 55 (5) of the Auctioneer's Rules of 1997 (Rev.2009) that states "The næmorandum of appeal by way of chamber summons setting out the grounds of appeal SHALL befiled within 7 daps from the decision of the Registrar or Magistrate". In this case the purported appeal was filed on the 12th April, 2024-21 days from the date ofthe ruling on the 22nd March, 2024 without the leave of the court and in a form not provided for.
2. This is an Appeal from an order of a Magistrate on the assessment of the auctioneer's cost with clear provisions under Rule 55 (5) of the Auctioneer's Rules of 1997 (Rev. 2009) and in so far as the issues appealed therein touch on the assessment of the auctioneer's costs and the subsequent orders therein.
3. The aforementioned pure points of law raised herein will no doubt terminate this proceedings.
4. This Appeal be dismissed with
Directions were taken for hearing of the objection by way of written submissions
Parties did not however file submissions.
ANALYSIS AND DETERMINATION
Having considered the Preliminary Objection, this court finds that the appeal offends the provisions of Rule 55 (5) of the Auctioneers Rules 1997(Revised 2009) and therefore the same cannot be sustained in the form filed without leave of the court. The appeal is therefore struck out and the objection is upheld. Parties will however bear their own costs of the objection and the appeal.
DATED, SIGNED AND DELIVERED AT MIGORI, THIS 14TH DAY OF MAY, 2026.
.
1. THAT the Learned Magistrate erred in law by granting the orders sought in the 1st Respondent's application dated 23rd October 2023, without considering in totality the grounds in the Appellant's Replying Affidavit, submissions thereof and the evidence on record.
2. THAT the Learned Magistrate erred in law in unreasonably and unjustifiably allowing the 1st Respondent to be joined as an interested party in an already heard and determined suit.
3. THAT the Learned Magistrate erred in law in unreasonably and unjustifiably ordering that the Appellant herein was liable to pay Auctioneers costs on recalled warrants.
4. THAT the Learned Magistrate erred in law by failing to consider that the warrants of attachment and proclamation dated 22/4/2022 had been held unenforceable and recalled.
5. THAT the Learned Magistrate erred in law by allowing and applying the wrong procedure for the assessment of Auctioneers costs.
6. THAT the Learned Magistrate erred in law by failing to consider the submissions and evidence on record duly produced by the Appellant in making it determination.
7. THAT the Learned Magistrate erred in law by misdirecting himself that the Appellant had not made a meritious case disproving the 1 st Respondent's case.
IT IS PROPOSED TO ASK THIS HONOURABLE COURT:
1. THAT the instant appeal be allowed.
2. THAT the Ruling of Hon. C.N.C Oruo dated and delivered at Rongo on 22 nd of March 2024 be reviewed/set aside.
3. THAT the Respondents to bear costs of this Appeal.
Uon the Appellants filing Records of Appeal as directed by the court the Respondents filed a preliminary objection dated 10th February 2025 on the grounds that the 1 st Respondent will contend as a preliminary point of law, to be determined in limine that the Appellant's Appeal is incompetent, amorphous, hopelessly misconceived, frivolous, totally devoid of merit and mala fides for the reason inter alia, that the Appellant have not complied with the mandatory provisions of Rule 55 (5) of the Auctioneer's Rules of 1997 (Rev.2009) that states that " The memorandum of appeal by way of chamber summons setting out the grounds of appeal SHALL befiled within 7 daps from the decision ofthe Registrar or Magistrate". In this case the purported appeal was filed on the 12th April, 2024-21 days from the date of the ruling on the 22nd March, 2024 without the leave of the court and in a form not provided for.
Further that by virtue of the mandatory provision of Rule 55 (5) of the Auctioneer's Rules of 1997 (Rev.2009) that states "The næmorandum of appeal by way of chamber summons setting out the grounds of appeal SHALL befiled within 7 daps from the decision of the Registrar or Magistrate". In this case the purported appeal was filed on the 12th April, 2024-21 days from the date ofthe ruling on the 22nd March, 2024 without the leave of the court and in a form not provided for.
2. This is an Appeal from an order of a Magistrate on the assessment of the auctioneer's cost with clear provisions under Rule 55 (5) of the Auctioneer's Rules of 1997 (Rev. 2009) and in so far as the issues appealed therein touch on the assessment of the auctioneer's costs and the subsequent orders therein.
3. The aforementioned pure points of law raised herein will no doubt terminate this proceedings.
4. This Appeal be dismissed with
Directions were taken for hearing of the objection by way of written submissions
Parties did not however file submissions.
ANALYSIS AND DETERMINATION
Having considered the Preliminary Objection, this court finds that the appeal offends the provisions of Rule 55 (5) of the Auctioneers Rules 1997(Revised 2009) and therefore the same cannot be sustained in the form filed without leave of the court. The appeal is therefore struck out and the objection is upheld. Parties will however bear their own costs of the objection and the appeal.
DATED, SIGNED AND DELIVERED AT MIGORI, THIS 14TH DAY OF MAY, 2026.
.