https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7721

Development Bank of Kenya Limited v Mutune & another (Commercial Appeal E183 of 2025) [2026] KEHC 7721 (KLR) (Commercial and Tax) (2 June 2026) (Ruling) Neutral citation: [2026] KEHC 7721 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Commercial Appeal E183 of 2025 RC Rutto, J June 2, 2026 Between Development Bank Of Kenya Limited Appellant and Protus Mutuku Mutune 1st Respondent Joseph Gikonyo t/a Garam Investments 2nd Respondent (Being an appeal against the Ruling of Hon. Lucy Njora (SPM) dated and delivered on the 9th day of June 2025 in Milimani MC Miscellaneous Application No. E1308 of 2022) Ruling 1.This matter arises from an appeal challenging the taxation of the Auctioneer’s Bill of Costs under Rules 54 and 55 of the Auctioneers Rules, 1997. The Appellant, being dissatisfied with the ruling delivered on 9th June, 2025, in Milimani Miscellaneous Application No. E1308 of 2022, filed a Chamber Summons application dated 16th June, 2025, seeking, inter alia, that the ruling and any resultant certificate of taxation of the Auctioneer’s Bill of Costs dated 9th September, 2022, be varied and/or set aside, and that the auctioneer’s bill of costs be dismissed with costs. 2.When the matter came up before this Court on 11th May, 2026, for directions on the hearing of the appeal, Counsel for the Appellant sought leave to file a Record of Appeal. Learned Counsel for the Respondent, Mrs. Okulo, raised an objection to that course, submitting that this being an appeal governed by Rule 55 of the Auctioneers Rules, the filing of a Record of Appeal is neither necessary nor contemplated in law. Counsel argued that the proper procedure is the filing of a Chamber Summons setting out the grounds of appeal, supported by an affidavit, with the Respondent being at liberty to file a replying affidavit and submissions. She emphasized that the proceedings are not an “appeal” in the conventional appellate sense but rather a special statutory procedure, akin to a reference determined by affidavit evidence and submissions. 3.In response, Counsel for the Appellant contended that, since the impugned ruling was delivered by a Magistrate’s Court and not by a Deputy Registrar of the High Court, the Record of Appeal is essential to place before this Court the proceedings of the lower court. 4.Thus, this Court is to provide directions on whether, under Rule 55 of the Auctioneers Rules, the filing of a Record of Appeal is a proper and necessary procedural step. 5.Rule 55 of the Auctioneers Rules provides, in material part:-55(4)An appeal from a decision of a registrar or a magistrate or Board under sub rules (2) and (3) shall be to a judge in chambers.”55(5)The memorandum of appeal, by way of chamber summons setting out the grounds of the appeal, shall be filed within seven days of the decision of the Registrar or Magistrate.” 6.The language of the rule is plain and mandatory. It prescribes not only the right of appeal but also the specific procedure to be followed when invoking that right. This position has been judicially considered. In Opportunity Kenya v Margaret Wanjala t/a Mako Auctioneers (Civil Appeal 60 of 2020) [2024] KEHC 2876 (KLR), the Court held:-“Rule 55(5)… clearly prescribes the procedure to be followed… the only prescribed way is through a memorandum of appeal by way of chamber summons.” 7.The Court further emphasized that this procedure is mandatory, echoing the earlier holding in Ezekiel Kiminza t/a Auto Land Auctioneers v Mistry Valji Naran Mulji [2017] eKLR. The same decision clarified an important distinction: that a Reference under paragraph 11 of the Advocates Remuneration Order is a distinct procedure; it is not synonymous with an appeal under Rule 55 of the Auctioneers Rules. 8.From the foregoing statutory provisions and jurisprudence, several conclusions emerge: The procedure under Rule 55 is special.The Rule expressly provides that an appeal is to be mounted “by way of chamber summons” setting out the grounds of appeal. This is not an optional procedural path—it is the exclusive mechanism contemplated by the law. 9.The concept of a Record of Appeal is not provided for.Unlike appeals governed by the Civil Procedure Act and Rules, where a Record of Appeal is a fundamental requirement, Rule 55 does not make any provision for such a record. Introducing it would amount to importing procedural requirements not envisaged by the Rules. 10.The Appellant’s argument regarding the Magistrate’s Court record is unpersuasive. While it is true that the decision appealed from originated in the Magistrate’s Court, Rule 55(5) does not distinguish between decisions of a Registrar and those of a Magistrate in terms of procedure. The same mechanism applies uniformly. Any relevant material from the lower court can be annexed to the supporting affidavit. 11.In light of the clear provisions of Rule 55 of the Auctioneers Rules and the binding judicial pronouncements on the matter, this Court directs that:-a.The filing of a Record of Appeal is not contemplated under Rule 55 and is therefore procedurally improper.b.The Record of Appeal filed by the Appellant is hereby expunged from the record.c.The Appellant is granted 14 days leave to file a further affidavit, together with all relevant annexures if need be. Thereafter the Respondent shall file its response within 14 days.d.Upon receipt of the Respondent response the Appellant shall file its submissions within 14 days corresponding leave granted to the Respondente.The file no. E182 of 2025 be the lead file. DELIVERED, DATED AND SIGNED VIRTUALLY THIS 2ND DAY OF JUNE, 2026RHODA RUTTOJUDGEIn the presence of;Court Assistant: WabwireMr. Lundi for the AppellantJane Gachuiga for the Auctioneer Respondent