[2007] KEHC 82 (KLR)
The court held that the Auctioneer, having failed to comply with the Auctioneers Act and the instructions of the principal by conducting the auction prematurely, could not be allowed to benefit from an exercise that was of no benefit to the principal. The failure to adhere to the statutory requirements rendered the...
Source-derived case information.
- Citation
- [2007] KEHC 82 (KLR)
- Parties
- Respondent: James Francis Kariuki t/a Ndarugu Merchants; Applicant: Savings & Loans (K) Limited; Applicant: Kimmessy Enterprises Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 761 of 2006
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Strike Out Bill of Costs
- Outcome
- application allowed; bill of costs struck out
- Judges
- GG Okwengu
- Legal Topics
- Auctioneer Costs, Bill of Costs Striking Out, Compliance With Auctioneers Rules, Nullity of Auction, Costs Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Francis Kariuki t/a Ndarugu Merchants
Respondent
Savings & Loans (K) Limited
Applicant
Kimmessy Enterprises Limited
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Application to Strike Out Bill of Costs
Legal Issues
- 1 Whether the Auctioneer is entitled to costs where the auction was conducted in contravention of the Auctioneers Act and Rules.
- 2 Whether the Bill of Costs filed by the Auctioneer should be struck out for failure to comply with statutory requirements.
Ratio Decidendi
The court held that the Auctioneer, having failed to comply with the Auctioneers Act and the instructions of the principal by conducting the auction prematurely, could not be allowed to benefit from an exercise that was of no benefit to the principal. The failure to adhere to the statutory requirements rendered the auction a nullity, and as such, the Auctioneer was not entitled to any costs for the services rendered. The Bill of Costs filed by the Auctioneer was therefore struck out, and each party was ordered to bear their own costs.
Court Disposition
application allowed; bill of costs struck out
Orders
- The Auctioneer's Bill of Costs filed on 1st August 2006 is struck out.
- Each party shall bear their own costs.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Civil Misc. Cause 761 of 2006
JAMES FRANCIS KARIUKI
t/a NDARUGU MERCHANTS……....………AUCTIONEER/RESPONDENT
V E R S U S
SAVINGS & LOANS (K) LIMITED........….1ST RESPONDENT/APPLICANT
KIMMESSY ENTERPRISES LIMITED….2ND RESPONDENT/APPLICANT
R U L I N G
By a Chamber Summons filed on 28th August 2006, Savings & Loans (K) Limited hereinafter referred to as 1st respondent/applicant, has come to this court under Order VI Rule 13 (1) (d) of the Civil Procedure Rules, Rules 55 (2) of the Auctioneers Rules 1997, and Section 3A of the Civil Procedure Act, seeking to have the Auctioneer’s Bill of Costs filed pursuant to the Auctioneers Act Number 5 of 1996 and the Auctioneers Rules 1997 struck out with costs.
The main ground upon which the application is grounded is the fact that contrary to the Auctioneers Act and the express instructions given to the Auctioneer by the 1st respondent, the Auctioneer conducted the auction sale only two days after the date of the advertisement of the sale thereby rendering the sale a nullity. The advocate for the 1st respondent has urged the court not to allow the Auctioneer/Applicant to benefit from an illegal auction caused by the Auctioneer’s own failure to comply with the rules. Although the date for the hearing of the application was taken by counsel neither the Auctioneer nor his advocate attended the court for the hearing of the application which therefore proceeded ex-parte.
I have considered the application and cannot but concur with the 1st respondent’s advocate, that the Auctioneer cannot be allowed to benefit from an exercise which has ended up being of no benefit to his principal due to the Auctioneer’s negligence and failure to comply with the law.
I find that the Auctioneer having failed to provide the required services strictly in accordance with the instructions given and the laid down rules, He is not entitled to any costs for these services. Accordingly, I strike out the Bill of Costs filed on the 1st August 2006. Each party shall bear their own costs.
Orders accordingly.
Dated, signed and delivered this 12th day of November 2007.
H. M. OKWENGU
JUDGE