https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7794

Arisi t/a Credible Auctioneers v Cooperative Bank of Kenya Ltd & another (Miscellaneous Civil Application E281 of 2024) [2026] KEHC 7794 (KLR) (3 June 2026) (Ruling) Neutral citation: [2026] KEHC 7794 (KLR) Republic of Kenya In the High Court at Eldoret Miscellaneous Civil Application E281 of 2024 E Ominde, J June 3, 2026 Between Dennis Ombori Arisi t/a Credible Auctioneers Applicant and Cooperative Bank of Kenya Ltd 1st Respondent Kingdom Securities Ltd & Dennis Rop 2nd Respondent Ruling 1.The Applicant herein being dissatisfied with the Ruling of the Hon P. Areri delivered on 17th October 2024, filed an Appeal by way of a Memorandum of Appeal by way of Chamber Summons’ dated 24th October 2024 under the provisions of Rule 22 of the Auctioneers Act Cap 526, Rule 5 Sub rule 4 5 and all other enabling provisions of the Law seeking the following orders;1.That this Honourable Court be pleased to set aside the Orders of Honourable P. Areri in Eldoret CMCC Misc. Civil Suit No. E090 of 2024 Dennis Ombori Arisi T/A Credible Auctioneers versus Cooperative Bank Kenya Limited & Anor made on 17th day of October 2024 and order for reassessment of the Auctioneers Bill of Costs before a different taxing master.2.That this Honourable Court be pleased to set aside the decision of the Honourable P. Areri in Eldoret Taxing Officer.3.That the costs of this application be borne by the Respondent. 2.The Application is premised on the grounds on the face of it and the averments of Dennis Ombori Arisi in the Supporting Affidavit. He deponed that he is a licensed Class B auctioneer duly licensed under the provisions of Auctioneers Act No. 5 of 1996 trading in the name and style of Credible Auctioneers. Further, that in Eldoret CMCC Misc. Suit No. E090 of 2024 he filed an Application dated 21st March 2024 seeking assessment of Auctioneers Bill of Costs dated 21st March 2024 and the Respondent responded vide Replying affidavit dated 22nd August 2024. 3.That on 17th October 2024 in Eldoret CMCC Misc. Suit No. E090 of 2024 Dennis Ombori Arisi T/A Credible Auctioneers versus Cooperative Bank of Kenya Ltd & another, the court made a Ruling dismissing the Application in its entirety. He urged that the taxing master erred in failing to tax or assess the bill of cost dated 21st March 2024 despite having attached a letter between his instructing firm who is the Counsel for the plaintiff and that of the respondent stating that the decretal amount had been settled leaving the Auctioneers fee unsettled which was a clear indication that the said firm had instructed him to commence execution on their behalf. 4.The deponent averred that the Court erred in dismissing the said Application without considering the fact that the Bill of Costs was drawn as required under Rule 55 sub rule 3 of the Auctioneers Rules 1997 and further, in failing to award costs of attachment and those of the suit which costs were supported by documentary evidence annexed to the Application. He further deponed that the respondent did not challenge the validity of the Application as their main contention save to state that the Applicant had failed to prove the Auctioneer’s bill of cost as drawn and that the applicant was not entitled to some items as drawn. 5.He urged that he was apprehensive that should the ruling delivered on 17th October 2024 not be vacated and be substituted by an order of this court reassessing the Bill afresh or issue an order directing the reassessment of the Auctioneers’ Bill of Cost by a different taxing master, he will suffer gross injustice. In the alternative, he urged the Court to issue an order directing the re-assessing of the Auctioneer’s Bill of Costs before a different taxing master. 6.The 1st respondent filed Grounds of opposition in response thereof dated 2nd July 2025 premised on the following grounds;1.That no demand for payment of fees was made by the Applicant to the 1st Respondent.2.That no execution was carried out by the Applicant as the 1st Respondent paid the decretal sum before the lapse of the proclamation notice.3.That by the time the Applicant filed its bill of costs, no dispute existed as envisaged by Rule 55(2) of the Auctioneers’ Rules.4.That the Applicant’s bill of costs was prematurely filed.5.The Applicant has not forwarded its fee note to the 1st Respondent as directed by the Honourable Court in its ruling of 17/10/2024. Applicants’ submissions 7.Learned counsel for the applicant submitted that the Honourable Magistrate erred in law and fact by failing to assess the Bill of cost as required under Rule 5 sub- rule 3 of the Auctioneers Rules 1997, that the Magistrate erred in fact and law by disregarding his submissions on items of his Bill of Costs which is clearly provided for under in Schedule 4 part II of the Auctioneers Rules 1997. Further that the learned magistrate erred in failing to award the applicant costs of items listed in the Bill of Costs which costs were supported by documentary evidence. 8.Counsel urged that the fees and disbursements payable to an auctioneer are provided for under Rule 55 (1) of the Auctioneers Rules as follows;“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.” 9.That in drawing a Bill of Costs the auctioneer is confined to only what is provided for in the Auctioneers Rules. The actual fee due to an auctioneer are provided for in PART II of the Fourth Schedule. Counsel cited the decision in the case of Flannery vs Halifax Estate Agencies Ltd (2000) 1 W.L.R. 337 AT 381, and Cunningham (1991) 4 All E.R 310 on the need by a Taxing Master to give reasons for a decision and urged that in the instant matter, all the Applicant complaints and criticism of the Taxing Master is on what was done to the application on assessment of the auctioneers’ bill of cost. 10.That even as there may be a good reason for the court to strike out the bill as it did, but without reasons for the decision, the aggrieved party who intends to appeal or review is left in precarious situation in absence of such reasons. Counsel urged that the Magistrate had a duty to give considerable thought on the auctioneers’ bill of cost as provided for under Rule 55(1) of the Auctioneers Rules. 11.Counsel urged that it is noteworthy that in the instant case there exist no means of ascertaining the rationality of the decision of the taxing master used to arrive at a conclusion that the applicant’s application was premature. The decision on the costs was so important to the Applicant because it deals with substantial money decree capable of being enforced and executed as a judgment of the court. 12.That further, the Respondent was served/ issued with the auctioneer’s fee note alongside the proclamation notice and their Advocates confirmed that the Auctioneer’s fees was not paid hence necessitating filing of Notice of Motion before the Trial Court. That the Taxing Master disregarded the contents of the affidavit sworn by Dennis Ombori Arisi which already established unpaid dues. 13.Counsel submitted that although the Magistrate had jurisdiction to enter into the inquiry of the items in the bill of cost, he failed to do so by the nature of the decision that he rendered. Further, that in every case whatever the character of the Bill of Costs on the wide range of questions remitted to the Taxing Master, it is essential that he derives authority from statute which is exercised within permissible margins of judicial reasoning. 14.That the breakthrough of any taxation is for the Taxing Master whose jurisdiction is to determine the issues raised to exercise discretion on the correct legal basis. He urged that it must be acknowledged that this question on the facts of this case can be answered in the affirmative and invited this Court to reassess the auctioneer’s bill of costs. Counsel cited the holding in Zachariah Barasa vs Dubai Bank Kenya Limited (2015) eKLR, on jurisdiction to interfere with a taxation. 15.Counsel urged that the Auctioneers Bill of Costs was drawn to scale and that the auctioneer was entitled to his fee as follows: Item No.1: Instruction Fee of kshs.1000 is reasonable and drawn to scale as per Fourth Schedule, Part 11(1) of Auctioneers Act. Item No. 2. Investigation Fee; though the Respondent is a renowned bank in Kenya, it is it’s only well known to those carrying out business with the said company. 16.That the Applicant is not one of them and as such had to carry out investigations to trace the Respondent’s place of business. The Applicant further submits that it had to carry out investigations to ascertain the ownership of properties before proclamations for it to avoid attaching third parties’ properties that may be leased to the Respondent. He urged that from the foregoing, the Applicant incurred expenses while carrying out the said investigations. 17.He cited Paragraph 12 of part II of Schedule 4 of the Auctioneers Rules 1997 and urged that the schedule also provides that the court may consider other expenses and disbursements and that additionally, that it is prudent to note that the Appellant’s office is situated at “Kisii Town "while the Respondent’s properties were situated in “Nairobi County” and during the investigation process, the Appellant had to travel to Nairobi to carry out the investigations and incurred further expenses. He urged that item no 2 being Investigation fees be allowed as drawn. 18.On Item No. 3; Fee before Attachment, Counsel urged that the Applicant has claimed fees before attachment at Kshs. 4000/= as per provisions of Fourth Schedule Part 11(3) of Auctioneers Rules 1997 and the same is drawn to scale. He urged that it be allowed as drawn. On Item No. 4: To Commission Fee on Attachment, Counsel urged that Part 11 of the Fourth Schedule provides that “where attachment or Re-possession is stayed, the Auctioneer is entitled to attachment or repossession charges in addition to expenses.” That item No. 4 is the Auctioneers income and it is from the same that the Auctioneers submits its VAT and as such VAT in the Bill of Costs is charged on items no 1, 3 and 4 only. He urged that the same be allowed as drawn. 19.He further submitted that under the same said Fourth schedule on the fees on attachment, repossession and attachment provides that “where attachment or re-possession is stayed, the Auctioneer is entitled to attachment or repossession charges in addition to expenses.” He submitted that the Auctioneer is entitled to charges tabulated herein above as drawn on item no. 4 of the Bill of costs and urged that it be allowed as drawn. 20.On Item 5; Travelling to proclaim, Counsel submitted that the Applicant’s offices are situated in Kisii Town and the proclamation took place in Nairobi. It is very clear that the Auctioneer had to travel that had to travel to Nairobi; 365 Kms to be able to carry out proclamation exercise where the Respondent’s properties were located. 21.He cited Paragraph II part 11 of Schedule 4 of the Auctioneers Rules 1997 which provides that travelling expenses as published in the Automobile Association shall be allowed up to 3 times to scale. And the same should be calculated as follows: 365 x65 kms x3 x 2= Kshs, 25,740/=Kshs.l42,350/=. He prayed that the same be allowed as drawn. 22.On Item No.6 Labour and Personnel, Counsel urged that from the proclamation notice annexed to the supporting affidavit the Auctioneer proclaimed 50 office chairs, 30 office computers, 3 office printers, 3 office photocopy machines, 35 office desks and 3 television set (40 inches) which required personnel to inspect the subject properties and confirm the initial value of the subject properties. 23.That it is therefore in the interest of justice that he be awarded, labour and personnel cost as calculated item No.6 as expenses incurred on personnel to proclamation as per Part II of the Fourth Schedule of the Auctioneer Rules 1997. On Item No.10 Taking Inventory, he urged that Part 11(10) of the Auctioneers Rules 1997 provides that the Auctioneer is entitled to costs of taking inventory and gives the court discretion to consider a reasonable amount. He urged that the amount raised in item No.10 being Ksh.45, 500/= is reasonable in the circumstances. 24.Counsel urged that Rule 55 of the Auctioneers Rules provides for fees and disbursements payable to an Auctioneer. That Schedule 4 part II provides that an auctioneer is entitled to other disbursements and expenses. He urged that the items drawn at Nos. 11, 12 and 13 are expenses incurred by the auctioneers while in the cause of his duty. Further, that the items drawn in Nos. 14, 15, 16, 17 and 18 are disbursements. 25.The application seeking taxation of the Auctioneers Bill of costs was filed before court and the court file can bear witness that filing fees were paid, together with service of the same upon the Respondent and further commissioning of the various affidavits was also done by the Applicant. He cited the case of Kenya Tea Packers Company Limited v Kenya Tea Packers Company Limited vs Hezron Cetuma T/a Heceons Auctioneers (2021) eKLR and urged that the Bill of Cost dated 21st March 2024 be referred for reassessment in reference to the Auctioneers’ Act and Rules. 26.He prayed that the court allows the instant appeal be allowed and the ruling by the Learned Magistrate be set aside. As far as the bill of cost is concerned, it is fair that Auctioneers Bill of Costs be remitted to another Magistrate for assessment and determination. 1st Respondents’ submissions 27.Counsel submitted that the 1st Respondent maintains that the Bill of Costs filed by the Applicant was premature and incapable of sustaining taxation. That Rule 55(2) of the Auctioneers Rules is couched in mandatory terms and prescribes a clear sequence before the court’s jurisdiction is invoked. The auctioneer must first render a fee note, allow reasonable time for settlement and only approach the court where a dispute arises. From the record, it is not disputed that no fee note or invoice was tendered to the 1st Respondent prior to the filing of the Bill of Costs. That the Applicant moved the court directly without first complying with this statutory procedure. 28.In doing so, the Applicant bypassed the very foundation upon which taxation proceedings are anchored. The Taxing Officer therefore correctly held that the bill had been filed prematurely and could not be entertained. He urged that the court's ruling on "prematurity" wasn't a minor technicality but a fundamental jurisdictional issue. Without following Rule 55(2) which typically requires specific steps like notice to the party affected or a formal originating process, the court lacked jurisdiction over the case. It therefore couldn't legally advance to taxing costs. 29.Counsel urged that no dispute existed at the time the bill of costs was filed. That a dispute under Rule 55(2) can only arise after a fee note has been rendered and contested. In the absence of a fee note, there was nothing capable of being disputed. The factual position before the trial court was straightforward. The Applicant never demanded payment of auctioneer’s fees from the 1stRespondent. No correspondence was exhibited showing rejection, negotiation, or contestation of any fee note. 30.That the filing of a Bill of Costs was therefore not preceded by any disagreement between the parties. The trial court properly found that objections raised in response to a bill already filed cannot constitute the dispute contemplated by the Rules. Jurisdiction cannot be created retrospectively. On this basis alone, the Bill of Costs was incompetent and rightly struck out. 31.Counsel cited the decision of the Court of Appeal in Equity Bank Limited V Bruce Mutie Mutuku t/a Diani Tour Travel (2016) eKLR and urged that in the same vein, the suit before the subordinate was found to be incompetent and cannot be sanctified on appeal. Further, Counsel submitted that no execution was carried out by the Applicant. Upon service of the warrants of attachment, the 1st Respondent promptly settled the decretal sum in full before the lapse of the proclamation notice period. 32.No proclamation was served, no inventory of goods was drawn and no attachment or sale took place. Execution was therefore arrested at inception by voluntary compliance on the part of the 1st Respondent. He urged that the absence of execution further underscores why the matter ought not to have escalated to taxation proceedings without prior engagement between the parties on fees. This position was correctly appreciated by the trial court that the nature and extent of the Applicant’s involvement did not justify immediate resort to court. 33.Counsel urged that the issue of quantum was never ripe for determination. That jurisdiction to assess quantum only arises once a competent bill of costs is properly before the court. Having found that the bill was premature and that no dispute existed, the Taxing Officer could not lawfully interrogate the amounts claimed. The ruling appealed from did not determine the reasonableness or otherwise of the fees. It determined that the statutory threshold for taxation had not been met. In those circumstances, the Taxing Officer correctly declined to engage with quantum, as doing so would have amounted to exercising jurisdiction where none existed. 34.Counsel urged that this appeal is bad in law as its foundation is an incompetent suit. The ruling of 17th October 2024 did not shut the Applicant out from recovery of fees. On the contrary, the court expressly directed the Applicant to forward a fee note to the 1st Respondent and only return to court if a dispute arose. To date, the Applicant has not complied with that direction and has elected to invoke the appellate jurisdiction of this Court to cure a procedural defect of his own making. 35.That the appeal is misconceived because the Applicant is trying to jump straight to appellate review without having followed the procedure or the directions set by the Taxing Officer. That even if the Bank already paid the principal sum, the Applicant must still comply with Rule 55(2) for taxation of their fees. That is not a proper basis for appellate intervention. 36.Counsel urged that the trial court applied the correct legal principles, considered the material before it and reached a conclusion firmly supported by both the law and the facts. There was no misdirection, no application of a wrong principle and no miscarriage of justice. He urged that the appeal does not meet the threshold for interference with a trial court’s decision and ought to be dismissed in its entirety, with the ruling of 17th October 2024 upheld. Analysis & Determination 37.Having considered the pleadings as well as the submissions, it is my considered opinion that the only issue that arises for determination; Whether the Trial Court in dismissing the Applicant’s Bill of Costs for gave no reasons for the dismissal warranting the setting aside of the orders of the Trial Court with an order for the re-assessment of the said Bill 38.The guiding legal provision on when an auctioneer should approach the court seeking that their cost be taxed is provided under Rule 55(2) of the Auctioneers’ Rules and it provides as hereunder;(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. 39.In the instant case, it is common ground that there was no execution conducted as the decretal sum was paid by the judgment debtor before the lapse of the proclamation notice. This being the case, and in any event, it was imperative that the Auctioneer sends a fee note to the Respondent Bank on the work done so that the parties discuss the amount payable and only move the court if they fail to agree as is provided under Rule 55(2) herein cited that the court should only be moved where a dispute arises. 40.However, in his pleadings, the Applicant has not only not alluded to the fact that he did comply with this requirement and a dispute arose hence the need to file his Bill of Costs, but he has also not demonstrated to court in any way that he did comply by annexing the relevant correspondence. 41.Further to the above, having read the impugned Ruling, I note that contrary to the assertion by the Applicant that the Learned Trial Magistrate did not give any reasons for his decision to strike out the Applicant’s Bill of Costs, the reasons were actually given in the said and they are as hereunder;i.That there was no evidence that orders were made by the Trial Court in the primary that the auctioneer was entitled to costs for the pre-empted execution when the Respondent Bank payed the entire decretal sumii.That under Rule 55(2) of the Auctioneers Rules herein cited, before a Bill of Costs is filed for taxation, the party so filing must demonstrate that a dispute has arisen. The Appellant herein did not show that he sent a fee note to the Respondent Bank and/or that the said Bank disputed the fee note hence the need to file a Bill of Costs and that in this regard, the same was prematurely before the courtiii.The Applicant was therefore directed to first forward his fee note /invoice to the Bank for consideration and in the event of a dispute as envisaged under the Rules, he was at liberty to file his Bill of Costs before any court of competent jurisdiction. 42.The above being the case, I am satisfied that the Learned Trial Magistrate did not at all misdirect himself and/or err in his Ruling in relying on the provisions of Rule 55(2) of the Auctioneers Rules in striking out the Applicants Bill of Costs for being premature. Accordingly, I find merit in the said decision and the same is upheld. 43.From the pleadings filed before this court, I note that despite being clearly directed by the Learned Trial Magistrate on how to proceed as in (iii) above, the Applicant failed to do so. In this regard, having upheld the decision of the Hon Magistrate as being legal and proper, it is my finding that this Application is misconceived and lacks merit and the same is now hereby dismissed with costs to the Respondent READ DATED AND SIGNED VIRTUALLY AT BUNGOMA ON 3RD JUNE 2026E. OMINDEJUDGE