https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10785

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAKURU** **MISC. CIVIL APPLICATION NO. E385 OF 2023 AND 405 OF 2023** **IN THE MATTER OF TAXATION OF AUCTIONEERS BILL OF COSTS IN NAKURU MISCCIVIL APPL NO. E214, E215, E216, E217, E218, 219, 220 ,221, 222, 223 AND E224 ALL OF 2023** **AND** **IN THE MATTER OF AUCTIONEERS ACT** **AND** **IN THE MATTER OF THE AUCTIONEERS RULES 1997** **BETWEEN** **HEZRON GETUMA ONSONGO T/A** **HEGEONS AUCTIONEERS……………………………………….. APPLICANT** **VERSUS** **FRANCIS MWANGI…………………………………………….....RESPONDENT** **RULING** 1. The background of the two matters being **Misc. No. 385 of 2023** and **Reference Misc. 405 of 2023** is that the Applicant in both files moved the Magistrate’s Court by filing Six (6) Notices of Motion dated 1st August, 2023 but in separate files being Civil Misc. Applications Nos. **E214, E215, E216, E217, E218, E219, E220 ,E221, E222, E223** and **E224** all of **2023** wherein he sought assessment of the Auctioneers’ Bills of Costs on each of the said Miscellaneous files and upon assessment, the Taxing Officer to enter judgment in favour of the Applicant in terms of the Certificate of Taxation. 2. In her Ruling on taxation dated 22nd November 2023, the Learned Magistrate ( Hon. Priscah Nyota) held:- ***“ ...the six files are consolidated and this ruling will apply to all of them.”*** She then allowed item 1 and 3 and proceeded to tax the rest of the items . 3. The Learned Magistrate then proceeded to tax each of the rest of the items giving reasons on each item and finally stated: - ***“The six bills re taxed at a total of Kshs. 239, 460 plus 1% VAT on fees (Kshs. 70,000) totaling to Kshs. 250,660. A single Certificate of costs to issue in Misc. 224 /2023.*** ***Judgment in favour of the Applicant is entered accordingly.*** ***The Applicant to bear his own costs of the applications.”*** 1. Aggrieved, the Applicant filed Reference Misc. Appeal No. 405 of 2023 being the ***“Memorandum of Appeal by way of Chamber Summons”*** expressed to be brought under Section 22 of the Auctioneers Act (Cap 526), Rules 55 Sub Rule 4 and 54 and 5 seeking Orders that: - 2. ***The Orders issued by the learned Magistrate in Nakuru CMCC Misc. Civil Suit Nos. 214, 215, 216, 217, 218 & 224 all of 2023 made 22nd November, 2023 be set aside and an order for re-assessment of the Auctioneers Bills of Costs for the entire series before a different taxing master.*** 3. ***The Order directing consolidating the series of Bills herein be substituted with an order directing that each matter be assessed independently on its own merit.*** 4. ***In the alternative, the Order of 23nd November 2023 be substituted with an Order of this Court re-assessing the auctioneers Bills of Costs.*** 5. ***The Order directing for a single Certificate of Costs be set aside be substituted win an Order directing that each matter in the series be issued with its own certificate.*** 6. Those grounds are emphasized in the Supporting Affidavit swoon on even date. He also deponed that the Respondent did not challenge the validity of the various applications and therefore, the same were unopposed. 7. The Applicant also filed High Court Reference Misc. Applicating No. 385 of 2023 seeking setting aside of the Ruling dated 22nd November 2023 in regard to Nakuru CMCC Misc, Civil Suit No. 214, 215,216,217,218 and 224 all of 2023 and substitution with an order that the bills be taxed separately and that the same be taxed before a different taxing officer and a Certificate for costs be issues on each file. 8. By consent of parties, the two files being Misc. 385 of 2023 and Reference Misc. No. 405 of 2023 were consolidated as they raised similar issues. Parties also agreed that the Reference No. 405 of 2023 be the main file. 9. In response to that Reference, the Respondent filed grounds of opposition dated 10th June 2025 arguing that: - the application lacks merit as there was no error in principle committed by the Taxing Master during taxation of the Bill of Costs; that Taxing Master took all relevant factors and therefore reached a just and fair decision. 10. The Respondent argued that the Applicant’s attempt to tax the bills of costs separately is intended to unjustly benefit the Applicant in respect of the same work. The Respondent therefore urged the Court to dismiss the applications dated 19th December 2023 with costs. **Applicant’s submissions** 1. Emphasizing on the application, the Applicant submitted that the Master erred in disregarding the valid warrants of attachment for Nakuru CMCC MISC. Civil Suit No. E214, E215, E216, E217, E218 and E224 all of 2023, and therefore arrived at an erroneous assessment. 2. Further it was submitted that Taxing Master failed in her duty of assessing the Bill of costs as required under Rule 55 sub rule 3 of the Auctioneers Rules. It was his submissions that the Taxing Master erred in principle and fact in failing to award costs of attachment and those of various suits in Nakuru CMCC Mise Civil Suit No. E214^215, E216, E217, E218 and E224 all of 2023, which costs are supported by documentary evidence as per schedule 4- Part II of the Auctioneers Rules 1997. 3. The Applicant further submitted that though the bill of costs is never granted without giving the reason for of each item upon reliance on the Auctioneers Act and Rules, the Taxing Master never gave reasons for her decision yet reasons for any decision is a hallmark of good administration of justice. 4. In support of this argument, the Applicant cited several cases including ***Kenya Commercial Bank Ltd & Samore & 3 others vs Pamela Joy Ouko t/a Sadique Enterprises Auctioneers***where it was held thus: ***“The taxing master did not exercise her discretion judicially and in the wrong manner taxed the Auctioneer bill of cost as presented. She also failed to give reasons for the same. Prudence demanded that she looks at each item on merit and explained why the same was justified and/or where not justified to reduce and/or tax down the same. Therefore, the Appellant objection to the mode of taxation has merit and the same has to be set aside. "*** 1. In this case, it was submitted that there was no way of ascertaining the rationale behind the award of Kshs. 250,660 said to have been incurred by the Applicant in the series of the Bills as stated herein. 2. It was submitted that at no point were the trial files consolidated as each file had its own decree in which the miscellaneous file emanated and the instructions were separate, applications filed together with bills in each and even submissions done on each file. Therefore, they were district ought to have been considered separately. 3. Acknowledging that Item 1 and 3 were allowed as drawn, the Applicant moved to justify the rest of the items in Bills and urged the Court to remit the Bills to another Taxing Master on the rest of the items. **Respondent’s Submissions** 1. It was submitted that the Applicant has failed to demonstrate that the Taxing Master committed any error of Principle in taxing the Bill. That on the contrary, the she properly analyzed the bills of costs placed before her and properly found that the Auctioneer had duplicated his bills of cost despite attaching the same household goods and motor vehicle hence, it was not possible for the Auctioneer to attach the very same household goods and motor vehicle multiple times in execution of different decrees. 2. The Respondent placed reliance on case of ***First American Bank of Kenya v Shah & others [2002]EA 64*** for the settled principle that the court cannot interfere with the decision of the taxing master unless it is shown that the decision was based on an error of principle or the fee awarded was manifestly excessive or low as the case may be, to justify an inference that it was based on an error of principle. 3. In this case, it was submitted that there was no error in principle and the award made by the Taxing officer was neither excessively high nor low but was commensurate with the work done in the circumstances. The Respondent therefore urged the Court to dismiss the application with costs; the court to summarily assess the cost in exercise of the court’s discretion. **Analysis and determination** 1. This Court has considered the material placed before this court and noted the six miscellaneous files each containing a bill of costs. These bills were identical. They arose from the same case being CMCC Mo. 1565 of 2018, involving the same parties as in these Bills of Costs. 2. The activity in the bills was on the same day and involved the same goods. It would not matter that there was no response in the taxation. The taxing officer can nevertheless proceed to tax bills as was done in this case. 3. In this case, the impugned Ruling by the Taxiing Officer shows that contrary to the argument by the Applicant, the taxing offer considered each of the bills and found them to be a duplication and therefore consolidated then in one Ruling. In doing so, the taxing officer stated: - ***“Curiously in all the six files, the applicant proclaimed the same household goods and motor vehicle valued ‘over’ Kshs. 800,000 in total but decided to charge his fees separately. The same work was done in all the six files on the same day. As such the mode of charging amounted to duplication of charges for the same work, was unreasonable and unjustified able. For this reason, the six files are consolidated and this ruling will apply to all of them.”*** 1. This Court is satisfied that a duplication of the same work done was untenable and would amount to unjust enrichment. Regarding the assessment done the items in the bills, this Court has considered the analysis done as reflected in the said Ruling by the taxing officer and is satisfied that she was properly guided by both the Auctioneers Act and Rules as well as case law while issuing the award on each of the items. This Court finds no reason to interfere with the said awards. She properly exercised her discretion in the whole matter. 2. In conclusion, there is no merit in the applications by the Applicant herein. Consequently, they are dismissed with costs to the Respondent. **Dated and signed at Nairobi this 13th Day of July, 2026.**  **PATRICIA GICHOHI** **JUDGE** **Delivered at Nakuru this 14th Day of July 2026.** **................………………………...........................** **DR. JOSEPH SERGON** **JUDGE**