Kariuki & 11 others v Afya Sacco Society & 10 others (Tribunal Case 157 of 2006) [2026] KECOPT 248 (KLR) (4 June 2026) (Ruling)

Kariuki & 11 others v Afya Sacco Society & 10 others (Tribunal Case 157 of 2006) [2026] KECOPT 248 (KLR) (4 June 2026) (Ruling) Neutral citation: [2026] KECOPT 248 (KLR) Republic of Kenya In the Cooperative Tribunal Tribunal Case 157 of 2006 J Mwatsama, Ag Chair, B Sawe, F Lotuiya, M Chesikaw & PO Aol, Members June 4, 2026 Between Peter Kariuki & 11 others Claimant and Afya Sacco Society Applicant and Cash Gate Auctioneers & 9 others Respondent Ruling DIVISION - Notice of Motion Application dated 21ST APRIL, 2026 1.The Notice of Motion Application dated 14th April, 2026 is brought by the Applicants for Orders:1.Spent2.That the Auctioneers be directed and ordered by this Honourable Court to release motor vehicle registration number KBZ xxxN- Ford Ranger held at their behest at Leakey’s Storage Limited.3.That the Auctioneers be directed to file their Bill of Costs with this Honourable Court within the next three days from the date of this order.4.That the costs of this application be borne by Cash Gate Auctioneers. 2.The Application is supported by the Affidavit of Peter Kimotho Maina on 21st April, 2026 and grounds on the face thereof. The grounds of the application are that:a.The Applicant has paid the decretal sum in the amount of Ksh. 303,000/= into the account of the Decree Holder, being account number 0123xxxxxxxxx on 16th March, 2026 to the satisfaction of the Decree Holder and his Advocates MS Madahana & Co. Advocates;b.The Auctioneers had obtained warrants of attachment and proceeded for proclamation at the Applicant’s offices on 13th March, 2026 claiming a sum of Ksh. 427,375/= of which Ksh, 95,000/= was purported to be auctioneers’ fees;c.A dispute arose and the Applicant paid only the sum of Ksh. 303,000/= which was the decretal sum payable to the Decree-Holder and the Auctioneers’ excessive fees which was not paid;d.The Auctioneers, on 20th April, 2026, in the company of Police Officers carted away the Applicant’s motor vehicle registration number KBZ xxxN Ford Ranger, claiming non-payment of auctioneers’ charges and fees;e.The auctioneers are now claiming Ksh. 200,000/= being the reason they have taken the Applicant’s said motor vehicle;f.The attachment by the auctioneers is illegal and unlawful and contrary to the law and in particular, the Civil Procedure Rules and Auctioneers Act as the auctioneers’ charges and fees are still in dispute and have not been determined by any court of law;g.There is a likelihood of auctioneers’ illegally and unprocedurally disposing the applicant’s motor vehicle registration number KBZ xxxN in violation of the law; 3.In the Supporting Affidavit of Peter Kimotho Maina, the Risk Recovery Manager of the Applicant Society, depones that:1.the decretal sums herein were settled except for the sums due to Michael Mutuku, despite participating in the proceedings was left out of the judgement and decree;2.on 30th September, 2025, the advocates for the Applicant realized that the said Michael Mutuku was omitted and made an application, which was allowed by consent and the Tribunal subsequently issued a decree in the sum of Ksh, 332,375/-.3.Thereafter, the auctioneers proclaimed the Applicant’s goods on account of warrants issued by the Tribunal on 13th March, 2026 claiming outrageous amounts in fees which ought to have been only Ksh.30,000/=.4.In the further affidavit sworn on 28th April, 2026, the deponent reiterates that the award of the Tribunal was Ksh. 303,000/- per party and the Applicant could not justify paying any of the Claimants a sum over 303,000/=. Respondent Response 4.In response to the application, the Respondent filed a Replying affidavit sworn by James Kimani on 27th April, 2026, who depones that:1.He is a business man carrying on business as Cash gate Auctioneers, the Respondent.2.the decretal sum together with Respondent’s fees as per the warrants of attachment have not been settled;3.the proclamation notice was served upon the Applicant on 13th March, 2026 after almost two months;4.there existed no dispute to cause the filing of a bill of costs by the parties as per Rule 55 of the Auctioneers Rules;5.It is within the rights of the Decree Holder to seize the vehicle and the Applicants were aware at the point of proclamation of the total decretal sum due as per the warrants;6.A party should not be allowed Court orders and / or warrants to comply with and which to ignore as indicated by the actions of the applicants;7.The costs of seizing the motor vehicle have gone up as the Applicant forcibly refused access to the attached vehicle parked in its basement necessitating the use of the police as provided for in section 9 of the Auctioneers Act;8.Further, a complaint that the amount has escalated is unwarranted as there has been actual seizure of the motor vehicle;9.The only time the advocates for the Decree-Holder and the Decree Holder would be satisfied is when the Applicants have fully satisfied the warrants of attachment and sale in the terms and manner indicated in the warrants which they have ignored;10.The warrant allowed him to collect his fees and the part payment directly to the Claimant was a clever attempt to deprive me of my fees;11.The application has not been served upon the Claimant’s Advocate, possibly to conceal the fact that the Applicant has been delinquent in obeying the court and this gives the lie to ground 1 of the main grounds of the application that the Advocates of the Decree Holder were satisfied with the payment by the Applicant;12.The argument by the Applicants that the said motor vehicle was physically seized due to Respondent’s fees is meant to hoodwink the Court as this has been confirmed by the Applicants in their application and also the warrants of attachment and sale confirms that the Applicants have not fully complied;13.The physical seizure of the said motor vehicle is within the legally court sanctioned process for the recovery of the total decretal sum together with the Respondent’s fee/cost as indicated in the warrants of attachment and sale and the Respondents cannot be blamed for executing their legal mandates to completion;14.The Applicants inflicted pain on themselves and their prayer for release of the said motor vehicle is a mockery to justice and the Applicant who being well aware of the cost implication and legal consequences in the event of failure to comply with orders;15.It is in the interest of justice that the Applicant’s application dated 21st April, 2026 be dismissed in its entirety with costs as it provides no evidence of any dispute and it is only meant to disturb the already commenced recovery process of the total decretal sum mentioned in the warrants of attachment. Analysis and Determination 5.It is not in dispute that the decretal sums due to the various decree holders herein were settled at the sum of Ksh. 303,000/= per Decree-Holder, save for the payment due to Alex Mutuku who was left out by error; neither is it in dispute that the parties agreed to include his name on the decree. 6.Further, whereas it is not in dispute that the said Michael Mutuku was entitled to the said sum of Ksh. 303,000/=, the parties nevertheless consented to a sum of Ksh. 330,000/= in November 2025, which amount was added to the Decree. 7.It followed that the Warrant of attachment issued on 13th March, 2026 was issued for the aforesaid decretal amount of Ksh. 330,000/= plus further costs of Ksh. 875/= and collection fee of Ksh. 1,500/=. 8.We note that the Advocates for the Decree Holder had demanded payment of the said sum of Ksh. 330,000/= earlier on 27th January, 2026 and warned that execution would issue in the event of failure to pay the amount. 9.We note that the proclamation of the Applicant Society’s assets was carried out on the same date on 13th March, 2026. On the Proclamation form, the Respondent cited the amount due as Ksh. 332,375/= and Auctioneers fee of Ksh. 95,000/=. 10.Despite that the Proclamation was carried out on 13th March, 2026, the Decree-Holder’s Advocates wrote a letter to the Applicant Society and its advocates on 16th March, 2026, demanding for payment of the sum of Ksh. 427,375/= which was the total of the proclamation sums contained on the Respondent’s proclamation form issued on 13th March, 2026. In the said letter, the Advocates of the Decree Holder directed the Advocates for the Applicant to pay the said money to them. It is therefore no wonder that the settlement cheque for the sum of Ksh. 303,000/= paid was paid to the Decree Holder’s Advocates on 16th March, 2026. 11.It is the Applicant Society’s uncontroverted evidence that the Applicant did pay the sum of Ksh. 303,000/= instead of the Ksh. 330,000/= consented to by the parties and contained in the decree and warrant. 12.The Applicant avers in its evidence that it cannot justify paying any sum beyond the said Ksh, 303,000/= to the Decree Holder, in a case where every Decree holder was paid Ksh. 303,000/=. The question therefore begs as to why the parties agreed to the additional amounts beyond the said sum due.It would appear however, that the Decree Holder has acquiesced to the said payment as there is no evidence of further demand to pay the additional decretal sums and the pending issue is that of the Auctioneer’s charges as can be discerned from the Respondent’s evidence. 13.Under Rule 7 of the Auctioneers Rules, the Auctioneer is entitled to recover his charges from the Debtor. 14.Rule 55 of the Auctioneers Rules provides:(1)Except as may be provided by any other written law or by contract the fees set out in the Fourth Schedule payable to the auctioneer for the attachment, repossession and sale of movable and immovable property under court warrants or letters of instructions shall be charged in accordance with these Rules.(2)Where a dispute arises as to the amount of fees payable to an auctioneer—(a)in proceedings before the High Court; or(b)where the value of the property attached or repossessed would bring any proceedings in connection with it within the monetary jurisdiction of the High Court, a registrar, as defined in the Civil Procedure Rules (Cap. 21, Sub. Leg.), may on the application of any party to the dispute assess the fee payable.(3)In any other case where a dispute arises as to the amount of fees payable to an auctioneer a magistrate or the Board may, on the application of any party to the dispute, assess the fees payable.(4)An appeal from a decision of a registrar or a magistrate or the Board under subrules (2) and (3) shall be to a judge in chambers.(5)The memorandum of appeal, by way of chamber summons setting out the grounds of the appeal, shall be filed within 7 days of the decision of the registrar or magistrate. 15.Rule 55 (3) therefore brings a dispute on auctioneers charges before Tribunal. 16.In the present case, the Respondent argues that there is no dispute as regards, the auctioneers charges. It is our finding that the moment the Applicant failed to settle the amount of auctioneer’s charges stated in the Proclamation form, the same was open to recovery from the Applicant. The fact that the Auctioneer proceeded to seize the Applicant’s motor vehicle with the help of police, claiming non-payment of its charges, it could not be deemed that there was no dispute. This Tribunal can therefore assess the Auctioneers Charges herein as per Schedule 4 of the Auctioneers Rules. It is however important to understand the tasks undertaken by the Auctioneer beforehand. 17.It is not in dispute that the Auctioneer herein received instructions to proclaim/attach and repossess the movable assets of the Applicant herein. The Proclamation herein was issued upon the Applicant, on 13th March, 2026, giving the Applicant Fourteen (14) days, at the expiry of which date the proclaimed goods including motor vehicle registration number KBZ xxxN would be removed from the Applicant’s premises to the Auctioneers premises and sold by public auction. 18.It is not disputed that the motor vehicle was taken from the premises of the Applicant on 20th April 2026 and not upon the expiry of 14 days as per the proclamation. 19.It is also not disputed that the said removal of the motor vehicle was done by the auctioneer with the assistance of police. Whereas an auctioneer is entitled to obtain police assistance as argued by the Respondent, the same must be done according to the procedure laid down by the law. 20.Rule 9 of the Auctioneers Rules states:(1)Where an auctioneer has reasonable cause to believe that—(a)he may have to break the door of any premises where goods may be seized or repossessed; or(b)he may be subject to resistance or intimidation by the debtor or other person; or(c)a breach of the peace is likely as a result of seizure, repossession or attempted seizure or repossession of any property, the auctioneer shall request for police escort from the nearest police station in order to carry out his duties peacefully.(2)An application under this rule shall be by motion by way of a miscellaneous application support by an affidavit and may be heard ex parte. 21.The Tribunal notes that the Respondent has not produced any evidence that an order was issued for the removal of the Applicant’s motor vehicle from its premises and finds that the removal was unprocedural.Further, we take note that there was no sale of the property advertised or undertaken after the seizure. 22.The Respondent is therefore entitled to tax its bill of costs for consideration of the Tribunal in terms of part II of the Fourth Schedule of the Auctioneers Rules. 23.Consequently, we are inclined to find that the Notice of Motion Application dated 21st April, 2026 has merit and the same is allowed as prayed. RULING DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 4TH DAY OF JUNE, 2026.HON. J. MWATSAMA AG.CHAIRPERSON SIGNED 4.6.2026HON. BEATRICE SAWE MEMBER SIGNED 4.6.2026HON. FRIDAH LOTUIYA MEMBER SIGNED 4.6.2026HON. MICHAEL CHESIKAW MEMBER SIGNED 4.6.2026HON. P. AOL MEMBER SIGNED 4.6.2026Tribunal Clerk MutaiMoraa for the ClaimantMuriuki for the Respondent/ApplicantHON. J. MWATSAMA AG. CHAIRPERSON SIGNED 4.6.2026.