https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9140

Hezron Getuma Onsongo t/a Hegeons Auctioneers v Mutua & another (Miscellaneous Civil Application E1046 of 2024) [2026] KEHC 9140 (KLR) (Civ) (29 June 2026) (Ruling) Neutral citation: [2026] KEHC 9140 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Miscellaneous Civil Application E1046 of 2024 LP Kassan, J June 29, 2026 IN THE MATTER OF TAXATION OF AUCTIONEERS BILL OF COSTS AND IN THE MATTER OF AUCTIONEERS ACT. Between Hezron Getuma Onsongo t/a Hegeons Auctioneers Applicant and Jackson Muinde Mutua 1st Respondent Daniel Muthenya Katua 2nd Respondent Ruling 1.The Applicant filed an ex-parte chamber summons dated 21st November,2024, for orders;a.The court be pleased to set aside the Milimani Misc Civil Suit No. E1178 of 2024 Hezron GetUma Onsongo T/A Hegeons Auctioneers vs Jackson Muinde Mutua and Daniel Mutenya made on 15th November 2024 and an order for re-assessment of the Auctioneers Bill of Costs before a different taxing master.b.The court to set aside award in items 1,2,3,5,6,9,10,12,14,15,16 and 17 of the Applicant’s bill.c.Such further orders as the court may deem fit.d.Costs to be borne by the Respondent. 2.The ex parte Chamber Summons was premised on the fact that the Respondent did not file a response, but filed submissions acknowledging that indeed a proclamation was done and that warrants of sale had been issued against the Respondent. 3.That taxing master only allowed item 4 and 20 on the Bill and did not tax/assess the Bill of costs dated 29th April 2024 and the court erred in not giving reasons for the decision. 4.The Respondent filed grounds of opposition dated 22nd January 2025 on the grounds that :-i.The taxing officer did not commit any error of principle in taxing the item objected toii.The Respondent's insurer has since settled the taxed amount plus costs and closed its file. 5.The Applicant filed written submissions dated 4th March,2025, and submitted on Rule 55(1) of the Auctioneers Rules which states “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, the repossession and sale of movable and immovable property under court warrants or letters of instructions shall be charged in accordance with these rules” and thus when drawing a Bill of Costs the Auctioneer is confined to what is provided in the Auctioneers rule. 6.As regards the issue of failure by the trial court to give reason for the ruling, the Applicant relied on the case of Flannery vs. Halifax Estate Agencies Ltd (2000) 1 W.L.R 337 at 381 Henry LJ stated that,“The duty is a function of due process and therefore justice.” It is submitted that constitutional justice implies a requirement of procedural fairness and consequentially, this necessitates a duty to give reasons in the very essence of arbitrariness as one's states could be redefined without adequate explanation as to why this was done. Secrecy creates suspicion, justly or unjustly. The secrecy may also be described as the hallmark of inefficient and corrupt administration. Reasons must therefore be disclosed. Besides giving reasons would inevitably earn respect for the decision maker.” 7.The Applicant also relied on, among other cases Zacharia Barasa -vs. Dubai Bank Kenya Ltd (2013) eKLR where Justice L. Gacheru in First American Bank of Kenya Vs. Shah & other (Nairobi) Milimani HC Civil Case No. 2255 of 2000 the court held that,The court cannot interfere after the taxing master's decision on taxation unless it is known that either the decision was based on an error of principle or the fee awarded was manifestly excessive as to justify interference that it was based on an error of principle” 8.In the case of Bank of Uganda -vs Bonce Arabe Epanai (1999) 2 EA 45 (2020) 2 EA 297 (SCU), it was held that: ”even if it is shown that the taxing officer erred in principle, the judge should only interfere on being satisfied that the error substantially affected the decision on quantum and that upholding the amount would cause injustice to cue of the parties, ‘ It is written the discretion of the taxing officer to increase or reduce the instruction fees and the award of increase or reduction is discretionary.” 9.The Respondents also filed written submissions dated 22nd January 2025 stating that the applicant proclaimed goods belonging to the Respondents in execution of the decree issued in Nairobi CMCC No. 1178 of 2024 Hegeons Auctioneers -vs. Jackson Muinde Mutua & Another. 10.The Respondent submitted as the issue that the court has jurisdiction to disturb the taxing officer ruling only if it is shown that she committed an error of principle which the Applicant has not shown to the court. The Respondent further submitted as items 1,2,3,5,6,9,10,12,13,14,16 & 17 which the Appellant is entitled to under the Auctioneers Rule 1997 paragraph 2 of the ruling of the taxing officer held“… Again, for the avoidance of doubt the items which require proof to demonstrate they were received and which proof has not been annexed are all dismissed.” 11.That the taxing officer decision to dismiss the said items in the bill of costs is in line with judicial precedent as set out in the case of Njuguna Kahari & Kia’s Applicants V. Gacangu (Environment and Land) Miscellaneous Application E040 of 2023.“Consequently, and logically so the Applicants/Respondents Bill of Costs should be accompanied by supporting documents especially where there is no written agreement between the Applicant and his/her respondents.”Thus, the taxing officer carefully considered the Bill of Costs. 12.I shall proceed to look at the Auctioneers Bill of Costs dated 24th April, 2024, vis-à-vis the ruling of the learned Trial Magistrate. 13.As regards instruction fees being item 1, it is not in doubt that the Applicant was instructed to attach property, a fact acknowledged by the Respondent in their sub mission. Item 1 is drawn to scale per Schedule 4 part (ii) (1) of the Auctioneers Rules. Item 2 is taxed off as it is not supported. Item 3 is taxed as drawn at 4,000 as per Schedule 4 Part II (30 of the Auctioneers Rules. Item 4 as the commission of Kshs 924,595, 14.In the case of National Industrial Credit Bank Limited vs. S.K Ndegwa Auctioneers (2025) eKLR,“The Respondent based his fees on the decretal sum and the Deputy Registrar assessed the fees on the basis of the decretal sum. The wording of paragraph 4 of Part II of the Fourth Schedule does not say that percentages stated apply to the decretal amount because in some cases, the value of the attached good may be many times less the decretal amount shown in the warrant of attachment and sale.” 15.The value indicated in paragraph 4, part II of the fourth schedule on the basis for which the fees for attachment are assessed are no doubt obscure. Nevertheless, it is a canon of construction of statutes, that if possible a statute should be construed in a manner which make it operative and that where a statute has several meanings, even though there is little to choose between then, the courts must decide what meaning the statute is to bear, rather than reject the provision as a nullity (see paragraph 582 Halsbury: Laws of England Vol 36. 3rd Edition).. ..It is to be remembered that the auctioneers are to be remunerated for actual work done.” 16.Attachment was done by the Auctioneer. The court finds that to allow the Auctioneer to get a commission, yet no evidence has been placed in court to support that indeed the attached items were sold, would be irregular. 17.The warrants speak to the sum of Kshs 9,245,952 at 2% as per schedule 4 part II that entitled to 184,919 thus since sale did not happen ½ of 184,919.04 = 92,459.52 thus 832,135.48 is taxed off. Item 6 is taxed off 20,000 as it is not supported by any receipts. Items 7 and 8 are not provided for and a party is bound by their pleadings. Item 9 is taxed off 10,000 as it is. Item 10 is not supported 15,000 is taxed off. Item 11 is not provided for. Item 12 is not supported by receipts 8,500 is taxed off. Item 13 is not provided for under Schedule 4 Rule 2 of the ARO 2014. Item 14 is not supported by receipts, thus 1,000 is taxed off. Item 15 is taxed off 1,000 as it is not provided for under Schedule 4 Rule 2 of the ARO, 2014. Item 16 is taxed off 1,000 as it is not supported by receipts. Item 17 is taxed off 3,000 as it is not provided for under Schedule 4 of the Auctioneers rules. Item 19 is taxed as drawn at 1,500 Item 20 is taxed as drawn at 25,000/-Total =1,080,020Taxed off = (960,560.48)=119,459.52 18.The ruling dated 15th November,2024 is set aside and substituted with 119,459.52. each party to bear their respective costs. DATED, DELIVERED VIRTUALLY AND SIGNED ON THIS 29TH DAY OF JUNE 2026HON L. P. KASSANJUDGE