[2024] KEHC 15954 (KLR)
The court held that the appeal was not properly before it because the appellant failed to comply with the mandatory procedure set out in Rule 55 of the Auctioneer's Rules. Specifically, the appeal was not filed by way of chamber summons and was filed outside the prescribed 7-day period without leave of the court. As...
Source-derived case information.
- Citation
- [2024] KEHC 15954 (KLR)
- Parties
- Appellant: Impact Finance Sacco; Respondent: Billy Oscar Lutta T/A Lufree Auctioneers
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E031 of 2021
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed as incompetent
- Judges
- REA Ougo
- Legal Topics
- Appeals Procedure, Auctioneer Costs, Time Limits for Appeals
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Impact Finance Sacco
Appellant
Billy Oscar Lutta T/A Lufree Auctioneers
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the appeal was properly filed in accordance with Rule 55 of the Auctioneer's Rules.
- 2 Whether the appellant was the correct party to be sued for the auctioneer's costs.
- 3 Whether the trial magistrate erred in taxing the auctioneer's costs against the appellant.
Ratio Decidendi
The court held that the appeal was not properly before it because the appellant failed to comply with the mandatory procedure set out in Rule 55 of the Auctioneer's Rules. Specifically, the appeal was not filed by way of chamber summons and was filed outside the prescribed 7-day period without leave of the court. As a result, the court found the appeal incompetent and dismissed it without considering the merits of the substantive grounds raised by the appellant.
Court Disposition
appeal dismissed as incompetent
Orders
- The appeal is dismissed for non-compliance with Rule 55 of the Auctioneer's Rules.
- There shall be no orders as to costs.
Full Case Text
Judgment text and source record
24 paragraphs
Impact Finance Sacco & another v Auctioneers (Civil Appeal E031 of 2021) [2024] KEHC 15954 (KLR) (4 November 2024) (Judgment)
Neutral citation: [2024] KEHC 15954 (KLR)
Republic of Kenya
In the High Court at Bungoma
Civil Appeal E031 of 2021
REA Ougo, J
November 4, 2024
Between
Impact Finance Sacco
Appellant
and
Amos Wekesa Barasa
Debtor
and
Billy Oscar Lutta T/A Lufree Auctioneers
Respondent
(Being an appeal from the ruling of Hon. C.A.S Mutai Senior Principal Magistrate delivered in 28th May 2021 at Bungoma CMCC Misc Application No 311 of 2019)
Judgment
1. The respondent at the magistrate’s court sought to have his bill of costs assessed and the trial magistrate in his ruling dated 22nd July 2019 was of the view that the appellant gave instructions to the respondent and taxed the auctioneer’s costs at Kshs 19,985/-.
2. The appellant has now preferred this instant appeal on the following grounds:1. That the learned trial magistrate erred in law and fact in ruling that Impact Trust is the same as Impact Finance Sacco.2. That the trial learned Magistrate erred in law and fact when he disregarded the appellant’s submissions and evidence on record, thus arriving at a wrong conclusion.3. That the learned Magistrate erred in law and fact by proceeding to tax the respondent at 19,953/- when there was no cause of action against the appellant.
3. The parties have each filed their respective submissions on the appeal. The appellant in its submission argues that the respondent sued the wrong party. The respondent attacked the competency of the appeal on the grounds that the appellant failed to extract and annex a certified order from which it was being appealed.
4. Before I delve into the merits of this case, I must first consider whether the appeal before the court is proper. The appeal before the court challenges the amount of fees payable to the auctioneer and is governed by Rule 55 of the Auctioneer’s Rules which provides as follows:“55 (2)where a dispute arises as to the amount of fees payable to an auctioneer –a.in proceedings before the High Court; orb.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.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.5. The memorandum of appeal, by way of chamber summons setting out the grounds of the appeal, shall be filed within 7 days of the decision of the Registrar or Magistrate”
5. The appellant should have filed this appeal by way of chamber summons within 7 days. The magistrate's ruling was delivered on 28/5/2021, and the appeal was filed on 11/6/2021 after the lapse of 7 days. The appellant did not file any application seeking leave to file the reference out of time. The appeal is not competent as the appellant has failed to observe the procedure set out in Rule 55 of the Auctioneer’s Rules and is therefore dismissed. There shall be no orders as to costs.
DATED, SIGNED, AND DELIVERED AT BUNGOMA ON THIS 4TH DAY OF NOVEMBER 2024. R.E. OUGOJUDGEIn the presence of:Appellant AbsentMr Maloba For the RespondentWilkister -C/A