[2022] KEHC 3273 (KLR)

Crown Bus Services v Richard Wanaina t/a Crown Bus Services Ltd (Miscellaneous Application E 010 of 2022) [2022] KEHC 3273 (KLR) (20 July 2022) (Ruling)

Neutral citation: [2022] KEHC 3273 (KLR)

Republic of Kenya

In the High Court at Eldoret

Miscellaneous Application E 010 of 2022

RN Nyakundi, J

July 20, 2022

Coram: Hon. Justice R. Nyakundi Mambua Kigamwa & CO. Adv for the respondent Kimondo Gachoka & CO. Adv for the applicant

Between

Crown Bus Services

Applicant

and

Richard Wanaina t/a Crown Bus Services Ltd

Respondent

Ruling

1. By chamber summons dated January 28, 2022 filed on January 31, 2022 brought pursuant to Rule 55(5) of the Auctioneers Rules 1997 and section 3A of the Civil Procedure Act, the Applicant seeks the following orders:i)Spentii)Spentiii)Spentiv)This Honourable court be pleased to set aside the ruling delivered on January 26, 2022 awarding the Auctioneer Kshs 176,000v)This honourable court be pleased to declare that the Auctioneer can only be paid fees on attachment, as per the Auctioneer’s Act upon an actual attachment.vi)This Honourable court be pleased to find that the learned trial magistrate erred in law and in fact by proceeding to wrongly apply the principle of stare decisisvii)This Honourable court be pleased to find that the learned trial magistrate erred in law and in fact by failing to apply the correct interpretation of Part II(4) of the Auctioneers Act No. 5 of 1996. viii)This honourable court be pleased to find that the learned trial magistrate erred in law and in fact by to consider all the issues raised in the appellant’s replying affidavit aswell as submissions thereby disregarding part of the submissions and response.ix)That the costs of this application be provided for.

2. The summons is premised on the grounds that in his ruling, the learned trial magistrate awarded auctioneers costs of Kshs 170,000 on attachment of Motor vehicles KDA 134V, KCP 016Z and KBX 874R; that the aforementioned motor vehicles were only proclaimed but were never attached and that the Auctioneer is not entitled in law to charge fees on work not done but expected to have been done at a future date.

3. The summons is supported by an affidavit sworn by Mohammed Ahmed on January 28, 2021which he reiterates the grounds on the face of the application

4. The appeal was opposed vide a replying affidavit sworn on February 7, 2022by the respondent where he contends that the appellant cannot change the settled law on a proclamation amounting to an attachment; that the fees was properly computed based on the Auctioneers schedule of charges which clearly graduates the fees based on percentages as it advances upwards based on the remaining value of the subject matter.

5. The appeal was canvassed by way of written submissions. The appellant filed its submissions on March 25, 2022whereas the respondent filed his on March 28, 2022.

Analysis and Determination 6. I have considered the chamber summons, the replying affidavit as well as the submissions filed on behalf of the both parties and the cited authorities and I find that issue that I am called to determine is whether proclamation amounts to an attachment.

7. From the rival authorities submitted by the parties herein, it is evident that there is no consensus by the courts on what attachment means in the auctioneers language. Some courts have held that proclamation involves attachment and as such the fees payable to an auctioneer after proclamation is made will include the fees for attachment under Item 4 of Part II of the Fourth Schedule of the Auctioneer Rules No. 5 of 1996 which provides for fees on attachment/repossession/distraint and expenses whereas other courts have taken the literal interpretation as to what attachment means that is, the actual seizure of the judgment debtor’s goods.

8. The Court of Appeal in the case of National Industrial Credit Bank Limited v S. K. Ndegwa Auctioneer[2005] eKLR while dealing with an issue similar with this case held as follows;“…The purpose of the attachment is the execution of the decree. The essence of the attachment is to remove the goods from the possession of the judgment-debtor and place them in the custody of the law so that they can be sold to satisfy the judgment debt if the judgment-debtor does not pay the debt. To place the goods in the custody of the law it is not necessary, as Mr. Gatonye correctly submitted, that the goods must be carried away from the premises of the judgment-debtor. In the commentary to Order 21 Rule 43 of the Indian rule which is in pari materia to Order 21 Rule 38, the authors of Mulla, The Code of Civil Procedure16th Edition state in part at page 2667:“where a warrant of attachment is executed by affixing it to the out door of the warehouse in which goods belonging to the judgment debtor are stored, it amounts to “actual seizure” within the meaning of the present rule”.It is clear from Rule 12 as read with Rule 14 of the Auctioneers Rules and the contents of the prescribed form, that is, Sale Form 2 that the proclamation of the movable goods is legally and effectively an attachment. From the moment the goods are proclaimed, the judgment-debtor is deprived of the legal possession and physical control of the goods and instead the goods are placed in the custody of the law and the court through the auctioneer. The judgment-debtor can only redeem them by the payment of the debt. If the judgment-debtor fails to pay the auctioneer moves to the second stage of conducting the sale of the attached goods.We are satisfied that the learned Judge correctly construed the word “proclamation” in the context in which it is used in the Auctioneers Rules and reached the correct decision that the auctioneer was entitled to fees for attachment prescribed in paragraph 4 of Part II of the Fourth Schedule.……….We think that it is reasonable that the auctioneer’s charges for attachment should be based on the value of the goods attached and not on the decretal sum. It is to be remembered that the auctioneer is to be remunerated for the actual work done and not on the basis of what he could have done had be attached goods equivalent in value to the decretal sum.”

9. In the instant case, the applicant has argued in his submissions that there was no actual attachment and as such the fees on attachment under item 4 is not applicable. On the other hand, the respondent argues that the fees on attachment is application since proclamation was made.

10. From the National Industrial Credit Bank Limited case(supra), it is apparent that the interpretation of, Sale Form 2 in Rule 12 as read with Rule 14 of the Auctioneers Rules and the contents of the prescribed form is that the proclamation of the movable goods is legally and effectively an attachment.

11. In light of the above, it is my finding that the trial court applied the correct principles in taxing the respondent’s bill of cost and particularly on Item 4 of Part II of the Fourth Schedule of the Auctioneer RulesNo. 5 of 1996 and as such the chamber summons dated January 28, 2022 is unmeritorious and it is dismissed with no orders as to costs.

DATED, SIGNED AND DELIVERED VIA EMAIL AT ELDORET THIS 20THDAY OF JULY, 2022. ............................R. NYAKUNDIJUDGE