https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7695

Ndirangu t/a Cashgate Auctioneer v Thiga (Civil Appeal E680 of 2025) [2026] KEHC 7695 (KLR) (Civ) (2 June 2026) (Judgment) Neutral citation: [2026] KEHC 7695 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E680 of 2025 AN Ongeri, J June 2, 2026 Between James Kimani Ndirangu t/a Cashgate Auctioneer Appellant and Robin Wangombe Thiga Respondent (Being an Appeal from the Ruling of Auctioneers Licensing Board in Disciplinary Cause No. 80 of 2023 delivered vide letter dated 22/10/2024) Judgment 1.The Auctioneers Licensing Board delivered a Ruling vide letter dated 28/10/2024 in the absence of the parties. 2.The complaint was placed before the board on 27/8/2024 by the Respondent in this appeal on behalf of Sigma Engineering Company Ltd. 3.The Complaint was that the appellant was paid a total of Kshs.6,005,000/- to conduct an eviction which he never did, the cheques were attached. 4.The Appellant did not file any response despite the hearing moved from January 17th 2023 and the Appellant being granted leave to file his response. 5.When the case was mentioned on 20/3/2024, the Appellant did not appear and the board directed the Respondent to file submission as he opted to do and the Ruling would be delivered on notice. 6.The Appellant filed an application dated 30/4/2024 to set aside the order of 20/3/2024. 7.The Board declined to set aside the order on the basis that the application only attempted to explain why the Appellant’s Counsel failed to appear to the Board but did not explain why no response was filed within 14 days from 17/1/2024. 8.The Board also found that the Respondent’s complaint was unchallenged. 9.The Board directed the Appellant to refund the Respondent the amount of Kshs.6,005,000/- for the eviction that was never conducted. 10.Further, the Board suspended the Appellant’s licence for 3 months from the date of the Ruling. 11.The Board also fined the Appellant Kshs.50,000/- and ordered him to pay costs of Kshs.20,000/- to the Respondent. 12.The Appellant has appealed against the said Ruling on the following grounds.i.That the Honourable Board erred in law and in fact by failing to communicate on time, its decision delivered on 28th October, 2024.ii.That the Honourable Board erred in law and in fact by venturing into matters that deal with contracts.iii.That the Honourable Board erred in law and in fact in breaching the Appellant’s right to be heard which is a law of natural justice that is enshrined in Article 25, 50 and 159 of the constitution.iv.That the Honourable Board erred in law and in fact in suspending the appellant without hearing his strong defence; that included;a.Complaint filed after expiry of one year statutory limitation.b.That the same was subjudice in light of a similar case pending the Nairobi MCCOMMSU E783 of 2023; Sigma engineering Company Limited -vs- James Kimani Ndirangu T/A Cashgate Auctioneers. 13.The parties filed written submissions as follows; The Appellant submitted that he has appealed against the entire ruling delivered by the Auctioneers Licensing Board on 28th October, 2024, in Disciplinary Cause No. 80 of 2023. 14.The disciplinary action arose from a complaint filed by the Respondent, Robin Wang'ombe Thiga. 15.In that decision, the Board ordered the Appellant to refund Kshs. 6,005,000 meant for an unconducted eviction, suspended his auctioneering license for three months, and imposed a fine of Kshs. 50,000 plus costs of Kshs. 20,000. 16.The Appellant seeks to have the appeal allowed, the Board's decision entirely set aside, and costs awarded to him. 17.The background of the dispute was that the Respondent initially filed a complaint via an affidavit sworn on 4th October, 2023. 18.Although the Appellant instructed an advocate who appeared before the Board on 17th January, 2024, the advocate was absent during the scheduled hearing on 20th March, 2024. 19.The Board subsequently made an ex-parte determination. Although the Appellant filed an application on 30th April, 2024, to set aside the decision and seek leave to file a response, this application was never heard, and the Board ultimately proceeded to issue its final ruling. 20.Parallel to the disciplinary cause, the Respondent filed a civil suit over the same subject matter in Nairobi MCCOMMSU E783 of 2023, where judgment has been delayed by an application to arrest it. 21.Notably, the Appellant only became aware of the Board's October 2024 decision eight months later, on 26th May, 2025, during a routine visit to the Board’s offices because the ruling had been reserved on notice but no ruling notice was ever served upon him or his advocate. 22.The Appellant raises four primary grounds to contest the Board's decision. 23.First, he contends that the Board violated the tenets of administrative justice, Article 47 of the Constitution of Kenya, and the Fair Administrative Action Act by failing to communicate its decision within a reasonable time, creating an unfair procedural delay of eight months. 24.Second, the Appellant argues that the Board acted ultra vires and exceeded its statutory mandate under Section 4 of the Auctioneers Act. 25.He submits that the Board's jurisdiction is confined strictly to licensing and disciplinary oversight and does not extend to enforcing or determining contractual obligations, making the order to refund eviction fees a matter that properly belongs to a court of competent jurisdiction. 26.Third, the Appellant asserts that the Board fundamentally breached his constitutional right to a fair hearing and the principles of natural justice by proceeding ex-parte. Citing various judicial precedents, the Appellant argues that an advocate's procedural slip or absence should not permanently lock the door of justice against a litigant or prevent a matter from being heard on its merits. 27.He contends that the Board should have exercised alternative options, such as an adjournment with an order for costs, rather than condemning him unheard. 28.Fourth, the Appellant maintains that the Board wrongfully suspended him without evaluating his strong statutory defenses. 29.These defenses include the fact that the complaint was barred by the one-year limitation period stipulated under Section 24(1) of the Auctioneers Act, given that the service agreement was dated April 2021 and the complaint was filed in October 2023, and that the dispute was sub judice due to the active, identical suit pending before the magistrate's court. 30.In conclusion, the Appellant submitted that the High Court that as a first appellate court holds an expansive mandate and a valuable right of rehearing to subject the entire record to a fresh, exhaustive, and independent evaluation on both questions of law and fact. 31.He urges the Court to thoroughly scrutinize the evidence, reverse the unjust findings of the trial tribunal, and grant the orders setting aside the disciplinary ruling with costs. 32.The Respondent did not file any submissions in this appeal. 33.The issues for determination in this appeal are as follows;i.Whether the Auctioneers Licensing Board had jurisdiction to order a refund of Kshs. 6,005,000/- being contractual fees for an unconducted eviction.ii.Whether the Board’s decision violated the Appellant’s right to a fair hearing under Articles 25, 50 and 159 of the Constitution and the Fair Administrative Action Act.iii.Whether the Board erred by failing to consider the Appellant’s defence on limitation (Section 24(1) of the Auctioneers Act) and sub judice. 34.Having carefully considered the record, the grounds of appeal, and the written submissions (the Respondent having failed to file any submissions), this Court sitting as a first appellate court has a duty to re-evaluate the evidence and the law. 35.On the first issue, the Auctioneers Licensing Board derives its powers from the Auctioneers Act, Cap 526. Section 4 of the Act establishes the Board and outlines its functions, which include licensing auctioneers, hearing disciplinary complaints, and imposing sanctions such as suspension, fines, or cancellation of a licence. 36.However, the Board is not a civil court. Its disciplinary jurisdiction does not extend to adjudicating pure contractual disputes or ordering recovery of debts arising from an alleged breach of a service agreement. 37.The complaint by the Respondent was that the Appellant was paid Kshs.6,005,000/- to conduct an eviction which he never performed. 38.That is fundamentally a claim for refund of money paid under a contract for services. 39.The proper forum for such a claim is a court of law, not a disciplinary tribunal. 40.The Board’s mandate is regulatory and disciplinary, not commercial or contractual transactions. 41.The order directing the Appellant to refund Kshs.6,005,000/- was therefore ultra vires the Board’s statutory powers and is hereby set aside. 42.The Respondent is at liberty to pursue that refund claim in the subordinate court where MCCOMMSU E783 of 2023 is pending or by way of a fresh civil suit. 43.On the second issue, the Appellant’s right to a fair hearing was breached. 44.While the Appellant’s counsel failed to appear on 20/3/2024 and no response to the complaint was filed on time, the Board proceeded ex parte and delivered its ruling by letter dated 28/10/2024 (the judgment erroneously states 22/10/2024 and 28/10/2024). 45.The Appellant filed an application dated 30/4/2024 to set aside the order of 20/3/2024 and seek leave to file a response. 46.The Board declined that application, reasoning that the Appellant had not explained why no response was filed within 14 days from 17/1/2024. 47.However, the Board did not address the Appellant’s argument that the ruling had been reserved to be delivered on notice, yet no notice was ever served, and the Appellant only became aware of the ruling eight months later on 26/5/2025. 48.That delay and lack of notice contravenes Article 47 of the Constitution and Section 4 of the Fair Administrative Action Act, which require administrative action to be expeditious, efficient, and procedurally fair. 49.The Board’s refusal to set aside its ex parte directions and hear the Appellant’s response, coupled with the failure to notify the Appellant of the ruling date, rendered the proceedings procedurally unfair. 50.The suspension of the Appellant’s licence for three months and the fine of Kshs.50,000/- cannot stand where the Appellant was denied a hearing on his substantive defence. Those sanctions are therefore set aside. 51.On the third issue, the Board erred in law by failing to consider the Appellant’s limitation defence. Section 24(1) of the Auctioneers Act provides that a complaint against an auctioneer shall be lodged within one year from the date of the act or omission complained of. 52.The service agreement was dated April 2021, and the complaint was sworn on 4/10/2023, well beyond one year. 53.The Board did not address this statutory bar. Additionally, the Appellant raised the defence of sub judice, noting that MCCOMMSU E783 of 2023 (Sigma Engineering Company Ltd v James Kimani Ndirangu T/A Cashgate Auctioneers) was pending before the magistrates’ court over the same subject matter. 54.The Board ignored that defence. While the sub judice rule under Section 6 of the Civil Procedure Act applies strictly to courts, a disciplinary tribunal ought to show restraint where a parallel civil suit over identical facts is ongoing. 55.The Board should not pre-empt or contradict findings that may be made by a court of competent jurisdiction. The Board’s failure to consider these two key defences is a reversible error. 56.Consequently, this appeal is allowed in the following terms;i.That the orders of the Auctioneers Licensing Board in Disciplinary Cause No. 80 of 2023 directing the Appellant to refund Kshs.6,005,000/- to the Respondent are set aside for want of jurisdiction.ii.That the suspension of the Appellant’s auctioneering licence for three months and the fine of Kshs.50,000/- are set aside for breach of fair hearing.iii.That the order for costs of Kshs.20,000/- before the Board is set aside. (4)iv.For the avoidance of doubt, the Respondent may pursue the refund claim in the pending civil suit MCCOMMSU E783 of 2023 or in any other competent court. 57.Each party shall bear their own costs of this appeal, given that the Respondent did not participate and the Appellant succeeded on jurisdictional and procedural grounds. 58.This file is marked as closed. 59.Orders to issue accordingly. 60.It is so ordered. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 2ND DAY OF JUNE 2026.ASENATH ONGERIJUDGEIn the presence ofMiss Obina holding brief Muhatia Pala for the AppellantNo appearance for RespondentChrispine - Court Assistant HCCA E680/2025 0