https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6974

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI COMMERCIAL AND TAX DIVISION CORAM: F. MUGAMBI, J MISC APPLN NO. E118 OF 2024 BETWEEN PETER M GATHOGO T/A DAYSTAR AUCTIONEERS ……….…..……………… RESPONDENT VERSUS CARES CATERING & SUPPLIES LTD …………..… 1ST APPLICANT ESTHER NJERI ……………………….……………..… 2ND APPLICANT RULING Background and Introduction 1. This Court is called upon to determine the application dated 14th July 2025. In the said application, the applicants pray that the taxed costs of Kshs. 331,340/= be set off against sums amounting to Kshs. 3,026,000/=, which they contend had already been paid to the respondent. MISC APPL. NO E118 OF 2024 RULING Page 1 They further seek a declaration that the taxed costs have thereby been settled in full. 2. The applicants confirm that the respondent had filed a Bill of Costs dated 14th February 2024, which was taxed at Kshs. 336,340/=. It is the applicants’ case that prior to taxation, they had already remitted to the respondent amounts in excess of Kshs. 3,026,000/=, which sums were not disputed by the respondent during the taxation proceedings. On this basis, the applicants urge the Court to order that the taxed costs be offset from the said payments and deemed satisfied. 3. Despite service of the application, the respondent neither filed a response nor placed any written submissions before this Court. The application therefore stands unopposed. Nevertheless, this Court is duty bound to consider the application on its merits, for the absence of opposition does not automatically entitle the applicants to the orders sought. Analysis and Determination 4. Order 23 Rule 10 of the Civil Procedure Rules, under which the application has been brought, MISC APPL. NO E118 OF 2024 RULING Page 2 provides for costs of proceedings in any application for an attachment of debts and of any proceedings arising from or incidental to such application. That provision does not represent the correct provision applicable to the matter before this Court. The proceedings herein arise out of taxation of costs, which are governed not by Order 23, but by Rule 55 of the Auctioneers Rules. Rules 55(2), 55(4), and 55(5) are pertinent and provide as follows: “(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 MISC APPL. NO E118 OF 2024 RULING Page 3 on the application of any party to the dispute assess the fee 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.” 5. It is therefore clear that the application before this Court has been filed under the wrong procedure. More critically, I note that the Ruling in question was delivered on 18th December 2024, whereas the present application was filed almost seven months thereafter. This delay places the application well outside the strict timelines prescribed under Rule 55(5) of the Auctioneers Rules, which require MISC APPL. NO E118 OF 2024 RULING Page 4 that an appeal be lodged within seven (7) days of the decision of the registrar or magistrate. The applicants have neither sought nor obtained leave of this Court to enlarge time for the filing of such an appeal. 6. Jurisdiction is a creature of statute, and it is trite law that where legislation prescribes a specific procedure and timeframe for invoking the jurisdiction of the Court, parties must adhere to it strictly. Failure to comply with the prescribed timelines and procedure deprives the Court of jurisdiction to entertain the matter. In the present case, the applicants’ omission to seek extension of time or to properly invoke Rule 55 renders the application incompetent ab initio. This Court cannot arrogate to itself jurisdiction where none exists, for jurisdiction flows from the law and not from the acquiescence of parties. Disposition 7. Accordingly, the application dated 14th July 2025 is hereby struck out with no orders as to costs. MISC APPL. NO E118 OF 2024 RULING Page 5 DATED, SIGNED AND DELIVERED IN NAIROBI THIS 21 ST DAY OF MAY 2026. F. MUGAMBI JUDGE Delivered in presence of: Parties absent Court Assistants: Lillian & Gloria MISC APPL. NO E118 OF 2024 RULING Page 6