https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11252
The appeal failed because the Appellant did not prove a regular execution process: the attachment was found to have occurred in Machakos County outside the auctioneer’s licensed jurisdiction, the proclamation service was not satisfactorily proved, and the defects in the proclamation and absence of corroborating...
Source-derived case information.
- Citation
- [2026] KEHC 11252 (KLR)
- Parties
- Appellant: Julus Nyakiangana & Co Advocates; 1st Respondent: Eric Kyalo Mutuku; 2nd Respondent: John Mutuku Kioko & 3 others
- Court
- High Court
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E231 of 2023
- Procedural Posture
- Civil Appeal / Judgment on First Appeal
- Outcome
- Appeal dismissed with costs to the Respondents
- Judges
- ["JM Gandani"]
- Legal Topics
- Execution of Decree, Warrants of Attachment and Sale, Auctioneer Jurisdiction, Service of Proclamation, Burden of Proof, Loss of Motor Vehicle, Assessment of Damages, Irregular Auction Sale
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julus Nyakiangana & Co Advocates
Appellant
Eric Kyalo Mutuku
1st Respondent
John Mutuku Kioko & 3 others
2nd Respondent
Procedural Posture
Civil Appeal / Judgment on First Appeal
Legal Issues
- 1 Whether the warrants of attachment and sale were irregular
- 2 Whether the Appellant complied with the Auctioneers Act and Rules
- 3 Whether the trial court shifted the burden of proof
Ratio Decidendi
The appeal failed because the Appellant did not prove a regular execution process: the attachment was found to have occurred in Machakos County outside the auctioneer’s licensed jurisdiction, the proclamation service was not satisfactorily proved, and the defects in the proclamation and absence of corroborating evidence showed non-compliance with the Auctioneers Rules. The trial court did not shift the burden of proof; it correctly assessed that the Respondents established a prima facie case and the Appellant failed to displace it. The damages award was upheld because it was supported by the evidence of a working commercial vehicle and was not excessive.
Court Disposition
Appeal dismissed with costs to the Respondents
Orders
- The appeal is dismissed
- Costs of the appeal awarded to the Respondents
Full Case Text
Judgment text and source record
1 paragraphs
Julus Nyakiangana & Co Advocates v Mutuku & 4 others (Civil Appeal E231 of 2023) [2026] KEHC 11252 (KLR) (17 July 2026) (Judgment) Neutral citation: [2026] KEHC 11252 (KLR) Republic of Kenya In the High Court at Machakos Civil Appeal E231 of 2023 JM Gandani, J July 17, 2026 Between Julus Nyakiangana & Co Advocates Appellant and Eric Kyalo Mutuku 1st Respondent John Mutuku Kioko & 3 others 2nd Respondent Judgment 1.The Appellant being aggrieved by and dissatisfied with the judgement and decree of the Hon. R. Gitau Resident Magistrate in Mavoko CMCC No Rag, 831 of 2019 Erick Kyalo Mutuku & Anor –vs Occidental Insurance Co. Ltd & 3 Others delivered on 15th August, 2023 appeals to this Honourable Court against the findings and the said judgement on the following grounds: - 1.The Learned Magistrate erred in law and in fact in making a finding and holding that the Appellant’s execution of the warrants of attachment and sale issued by the court in Mavoko CMCC No. 1399 of 2018 was irregular without any supporting evidence and against the weight of the evidence on record. 2.The Learned Magistrate erred in law and in fact in making a finding that the Appellant executed the warrants of attachment and sale issued by the court in Mavoko CMCC No. 1399 of 2018 in Syokimau, Machakos County without any supporting evidence and when the evidence on record supported the fact that the warrants were executed by the Appellant in Nairobi County. 3.The Learned Magistrate erred in law and in fact in making a finding and holding that the Appellant had not complied with the Auctioneers Rules when from the evidence on record, the Appellant had followed due process in the execution of the warrants of attachment and sale issued by the court in Mavoko CMCC No. 1399 of 2018. 4.The Learned Magistrate erred in law and in fact in making a finding and holding that the 1st Respondent was not served with the proclamation, against the evidence on record. 5.The Learned Magistrate erred in law and in fact in placing a lot of weight on an inadvertent and excusable mistake in the court case number/court in the proclamation issued by the appellant. 6.The Learned Magistrate erred in law and in fact in shifting the burden of proof to the Appellant. 7.The Learned Magistrate erred in law and in fact in finding and holding that the Appellant is liable to pay the 1st Respondent Kshs. 1,600,000/= plus costs and interest. 8.The Learned Magistrate erred in law and in fact in failing to consider the Appellant’s evidence and submissions. 9.The Learned Magistrate erred in law and in fact in making adverse findings and entering judgement against the Appellant against the weight of the evidence on record. Brief facts 2.The 1st and 2nd Plaintiff/1st and 2nd Respondents through an Amended Plaint dated 24 October 2020, sued the Defendants for the damages. 3.The plaintiff’s claim is that on 7th April, 2018 motor vehicle KBP 619K was involved in an accident where one Felix Muchoki Mugendi (a minor) was severely injured. 4.Consequently, the minor though his next friend Patrick Mugendi (the 3rd Defendant filed Mavoko SPMCC No. 1399 of 2018 (Felix Muchoki Mugendi (Suing Through Next Friend and father Patrick Mugendi Njue) vs Erick Kyalo & Speed Capital Limited on the 25th September, 2018. 5.The plaintiff upon being served with the summons, he delivered them to the 1st Defendant together with the original documentation relating to the policy. He did not retain a copy. 6.The 1st Plaintiff states that on 15th October, 2019 his vehicle KBP 619K was waylaid by the 2nd defendant at Syokimau, acting on 3rd defendant, he was removed from the vehicle and was served with a Notification of sale Form and the lorry driven to an unknown place. He had not received due notice or proclamation served. Moreover, he alleged that he was neither invited to participate in the proceedings in Mavoko SPMCC No. 1399 of 2018 nor made aware of the outcome thereof or the part payment of Kshs. 3,000,000 by the 1st Defendant in breach of the provisions of Cap 405 as read with Cap 486 and the constitution of Kenya. 7.The plaintiffs pray for judgement against the defendants for:1.A declaration that the 1st Defendant as the 1st Plaintiff’s insurer was duty bound to issue notice and inform the 1st Plaintiff of the judgement in CMCC No 1399 of 2018 Mavoko including the 1st Plaintiff's liability emanating thereto.2.A declaration that the attachment of motor vehicle registration number KBP 619K by the 2nd Defendant was illegal, unlawful and unwarranted, the subsequent alleged sale fraudulent and incompetent and an order to issue for the said motor vehicle ‘s return and release unconditionally to the Plaintiff and/or in the alternative an Order for the payment of the worth of the said motor vehicle KBP 619K to the 2nd Plaintiff as determined by the court.3.Damages for breach of duty as against the 1st Defendant.4.Damages for unlawful attachment and detention of the said motor vehicle KBP 619K.5.Damages for loss of use of motor vehicle KBP 619K.6.Cost of the suit with interest as from the date of filing of the suit. 8.The 1st Defendant entered appearance and filed a statement of defence dated 15th November, 2019 in which it admitted being the insurer of motor vehicle KBP 619K, the occurrence of the accident, existence of Mavoko SPMCC No. 1399 of 2018 and to having paid Kshs. 3,000,000/ in partial satisfaction of the judgement being the limit of its insurance policy. 9.The 2nd and 4th Defendant entered appearance and filed an amended statement of defence dated 2nd February 2021 in which the 2nd Defendant admitted being served with warrants of attachment issued in Mavoko SPMCC No. 1399 of 2018 by the advocates of the 3rd Defendant and proceeded to proclaim the Plaintiff's goods. 10.The 3rd Defendant entered appearance and filed a statement of defence dated 15th October 2020 in which he admitted the occurrence of the accident resulting to his son sustaining serious injuries and the case of Mavoko SPMCC No. 1399 of 2018. 11.The case proceeded for hearing, parties testified and they filed submissions. On 15th August, 2023, the court delivered judgment as follows:a.The Plaintiff’s claim against the 1st, 3rd and 4th defendants fails and is dismissed with costs.b.The Plaintiff’s case against the 2nd defendant succeeds to the extent herein before stated.c.The 2nd Defendant shall pay the Plaintiff’s cost of the suit. The appellant proceeded to appeal the decision of the trial court. In the primary suit the evidence was as follows: Plaintiffs case 12.(PW1 – Erick Kyalo Mutuku). He adopted his witness statement and produced documents. He testified that the vehicle (registered in his name, beneficially owned by the 2nd Respondent) earned Kshs. 15,000–20,000 daily. He was never served with a proclamation. On 15th October, 2019, the vehicle was waylaid in Syokimau, Machakos County; he was removed, and only then was a notification of sale served on the driver. He identified the Nairobi-Machakos boundary near Kapa Oil Refineries but maintained the attachment occurred in Machakos. He conceded the driver (Justus Nzioka) was served on the attachment day but denied prior proclamation. He lodged a complaint with the Auctioneers Licensing Board. No documents supported daily earnings. Defence case 13.The defence was mounted primarily through the evidence of DW1, DW2, DW3, and DW4. DW1, Mathew Okiring, a representative of Occidental Insurance Co. Ltd (1st Defendant), confirmed that the company had insured the motor vehicle KBP 619K, that it had duly appointed advocates to represent the insured in the primary suit (Mavoko SPMCC No. 1399 of 2018), and that it had paid its full policy limit of Kshs. 3,000,000/= towards the judgment sum. He emphasised that the Plaintiffs had been represented by their own advocates (Simiyu Opondo) in the primary proceedings and that any outstanding balance was the responsibility of the vehicle owner. 14.DW2, Kangeri Wanjohi (the Appellant and 2nd Defendant trading as Kindest Auctioneers), gave detailed evidence on the execution process. He testified that on 11th September 2019 he received instructions from Mwathi Njue & Company Advocates on behalf of the 4th Respondent. He applied for and obtained warrants of attachment and sale from the Mavoko court. On 1st October 2019, he proclaimed the vehicle by serving the Plaintiffs’ driver, Justus Nzioka, thereby giving the required seven days’ notice. After the notice period expired without payment, he attached the lorry at a location between Kapa Oil Refineries and Embakasi Railway Station, which he maintained was within Nairobi County and therefore within his licensed jurisdiction (Nairobi, Kiambu, and Kajiado). The vehicle was subsequently advertised and sold by public auction on 30th October 2019 to the highest bidder for Kshs. 1,200,000/=. He produced various documents in support (DEX 1–16) and insisted that he had followed due process under the Auctioneers Rules and the Civil Procedure Rules. On cross-examination, he acknowledged minor discrepancies such as the proclamation referring to “CMCC 1399” without the year and “Court at Nairobi,” and that the licences he produced were for subsequent years, but he maintained these did not invalidate the process. 15.DW3, Patrick Mugendi Njue (the 4th Respondent and father of the minor judgment creditor), corroborated the auctioneer’s account. He confirmed that he had instructed the Appellant, pointed out the vehicle in Syokimau on the Nairobi side, reviewed the documents, and was satisfied that proper procedure had been followed. The vehicle was proclaimed for seven days, attached, advertised in The Star newspaper, and sold, after which he received full payment. 16.Finally, DW4, Harun Muthoni (the 5th Respondent), testified that he had purchased the lorry at the public auction for Kshs. 1,200,000/= as the highest bidder, with other participants present, and had been using it since. He disputed the Plaintiffs’ suggested open-market value of Kshs. 3–3.5 million. Appellant submissions 17.The Appellant’s major complaint in the grounds of appeal is that the learned magistrate erred in law by making a finding that the Appellant’s execution of the warrants of attachment and sale issued in the Mavoko CMCC No. 1399 of 2018 was irregular. Further, the learned magistrate is faulted for making the finding that the attachment of the motor vehicle registration numbers KBP 619K, Isuzu lorry occurred in Syokimau within Machakos County without any supporting document. 18.The Appellant also hold the position that the notice of proclamation was served on 01.10.2019 as required under the Auctioneer’s rules and that the mistake on the proclamation documents showing wrong case details was/is excusable and the lower court should have excused the same. In summary, the Appellant faults the learned magistrate for arriving at a conclusion that the 1st and 2nd Respondents had proved their case for compensation to the required legal threshold. 19.The Appellant’s oral testimony in court was that service of the proclamation notice was effected upon the said driver on 01.10.2019 and that the attachment occurred between Kapa Oil and Embakasi Railway Station near City Cabanas in Nairobi when the suit motor vehicle was in transit being driven by the said Justus Nzioka. They respectfully submit that the said oral testimony was not challenged by the 1st and 2nd Respondents’ evidence in court because PW1 (1st Respondent) did not witness both the proclamation and the attachment events and his account is hearsay evidence which as a matter of general rule is inadmissible. Consequently, the lower court fell in error by placing reliance on the uncorroborated oral testimony of PW1. 20.On pages (7) and (8) of the lower court judgment, the learned magistrate held as follows; A proclamation notice was produced as DEX 1. The document whose date is not legible, referred to a case before a court at Nairobi and the case number cited did not indicate the year the case was instituted…This goes to confirm that indeed the Plaintiff was never served with a proclamation.” 21.The appellant submits that the admitted mistake appearing on the proclamation notice documents regarding the case file number was inadvertent and excusable and could not, the erroneous finding by the learned magistrate that no service of proclamation notice was effected on 1st October, 2019 upon the driver. 22.On shifting the burden of proof, the appellant submits that the 1st and 2nd Respondents ought to have called Mr. Justus Nzioka who had witnessed the attachment incident to give his account by oral testimony and the learned magistrate fell in error by shifting the burden of proof to the Appellant. The burden of proof rested with the Plaintiffs to prove the exact place where the attachment occurred. 23.The appellant faults the trial magistrate for making a finding that the Appellant was liable to compensate the 1st Respondent Kshs. 1,600,000 against the weight of the evidence on record and in so doing failed to consider the Appellant’s evidence and submissions. There is no valuation report that was produced as evidence at the hearing by the 1st and 2nd Respondents (Plaintiffs) or the Appellant. The learned magistrate made a finding that no valuation report was tendered by ‘the Plaintiffs. The appellant submit that the learned magistrate erred in relying on a valuation report dated 29.10.2019 which was not produced as exhibit by any party. 24.This was the position in the case of Kenneth Nyaga Mwige v Austin Kiguta & 2 Others (2015) eKLR where the court held;“ 16.The fundamental issue for our determination is the evidential effect of a document marked for identification that is neither formally produced in evidence nor marked as an exhibit. Is a document marked for identification part of evidence" What weight should be placed on a document not marked as an exhibit"….in our view the trial judge erred in evaluating the evidence on record and basing his decision on ‘MFI2’ which was a document not formally produced as an exhibit. It was a fatal error on the part of the respondents not to call any witnesses to produce the documents marked for identification…’ 25.Consequently, the appellant submits that the only evidence available in court was the certificate of sale dated 31st October,2019 showing that the suit motor vehicle was sold at a public auction at Kshs 1, 200,000 and had the Plaintiff proved their case, the compensation should have been Kshs 1, 200,000 and not Kshs 1,600,000. 4th Respondent submissions 26.On whether the warrants of attachment and sale issued by the court in Mavoko CMCC No. 1399 of 2018 was irregular. On 3rd September 2019, the 4th respondent in a letter informed the 1st respondent of the entry of judgment and a balance of Kshs, 972,969.69 and included a formal notice of execution if the same was not paid within 14 days. The 4th respondent then went ahead and started the execution process against the 1st respondent by appointing the appellant Kindest Auctioneers to execute on 1st September, 2019. The appellant subsequently acquired the warrant of attachment and sale their proclaimed against motor vehicle KBP 619K belonging to the 1st respondent. After the lapse of prescribed period without payment the motor vehicle was duly sold to the 5th respondent after all the legal requirements were met. 27.On whether the Appellant complied with the Auctioneers Act. The respondent submission that the appellant was qualified for the job and performed it as per the law. He would have declined this appointment and rejected the undertaking had he not be qualified and licensed. 28.On whether the 1st respondent was served with proclamation. The appellant by a letter dated 4th October, 2019 forwarded a proclamation form No. 132 to the 4th respondent advocates for record. The form was served upon the driver of the 1st respondent Julius Nzioka. He was properly represented in court by his lawyer who should have advised on execution proceedings call him as a witness to deny the proclamation. However, Julius Nzioka the 1st respondent’s driver did not testify to shed light as what transpired on that day and where the proclamation took place. The appellant evidence of where and when proclamation took place remains uncontroverted. 29.Further, the 4th respondent corroborated the appellant’s testimony that he pointed out the plaintiff's motor vehicle at Syokimau which transcends two counties Machakos and Nairobi. He stated that the motor vehicle driven by the 1st respondent’s agent was on the Nairobi side of Syokimau within the jurisdiction of the appellant. He hired the appellant who is a licensed auctioneer. He proclaimed the same for seven days and after no payment he attached the lorry advertised it for sale in the classified section of The Star newspaper. 30.Finally, the motor vehicle was sold to the 5th respondent Mr. Harun Muthomi as the highest bidder through public auction. 31.The appellant followed order 22 Rule 27 of the Civil Procedure Rules on execution of a decree and Order 22 Rule 65 on the sale of moveable property by auction. 32.The 4th respondent submits that he can’t be held liable for the actions of the appellant as no evidence has been adduced by the 1st and 2nd respondent of illegality in the execution of the decree. 33.Lastly, on who bears the burden of proof the 4th respondent submits that the court verified that the appellant was a licenced auctioneer before processing the warrants of attachment and sale. Hence, the burden to prove that the execution was done within the law lies on the appellant not the 4th respondent. 34.1st , 2nd 3rd and 5th submissions There are no submissions on record. Issues1.Whether the warrants of attachment and sale issued by the court in Mavoko CMCC No. 1399 of 2018 was irregular.2.Whether the Appellant complied with the Auctioneers Act.3.Whether the court shifted the burden of proof to the applicant.4.Whether the quantum of damages should be interfered with.. Analysis 35.Since this is a first appeal, I am required to re-evaluate the entire evidence on record, draw my own inferences and conclusions, and interfere with the trial court’s findings only if they are based on no evidence, a misapprehension of evidence, or if the court applied a wrong principle of law (Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 at p. 126; Peters v Sunday Post Ltd [1958] EA 424). 36.I have carefully considered the pleadings, the witness statements and oral evidence of PW1 (Erick Kyalo), DW1 (Mathew Okiring of the insurer), DW2 (the Appellant), DW3 (Patrick Mugendi Njue), and DW4 (Harun Muthoni), the documents produced (including DEX 1–16), and the submissions. 1. Whether the warrants of attachment and sale issued by the court in Mavoko CMCC No. 1399 of 2018 was irregular. 37.Rule 3 of the Auctioneers Practice Rules provides Application for a licence(1)The Board shall issue two kinds of licences—a.a class "A" licence which shall be a general auctioneering licence limited to specific districts;b.a class "B" licence which shall be a general auctioneering licence which shall enable the holder to realize charged securities, repossess and sell any property throughout Kenya, execute court orders, and to levy distress within specific districts. 38.The Appellant admitted in cross-examination that his licence in 2019 covered Kiambu, Nairobi and Kajiado counties and that execution outside licensed areas generally requires special authority. PW1 testified credibly that the attachment occurred in Syokimau, Machakos County, while the vehicle was at work. The Appellant and DW3 claimed it was on the “Nairobi side,” but this was not conclusively proved with boundary evidence or any other records. 39.It was the appellant’s evidence that they proclaimed the motor vehicle between Kapa Oil and Embakasi Railway Station which is within Nairobi County. 40.The learned Magistrate correctly found, on the weight of evidence, that the attachment took place in Machakos County, outside the Appellant’s jurisdiction. This rendered the execution irregular. Auctioneers must strictly adhere to licensing limits when physically seizing property. 2. Whether the Appellant complied with the Auctioneers Act 41.Under Rule 12 of the Auctioneers Rules, 1997, a proper proclamation (Sale Form 2) must be issued and served, giving at least seven days’ clear notice before attachment. Service on the judgment debtor or his authorised agent/representative in possession is required. 42.Rule 12 of the Auctioneers Rules 1997: Movable goods other than perishable goods and livestock(1)Upon receipt of a court warrant or letter of instruction the auctioneer shall in case of movables other than goods of a perishable nature and livestock—a.record the court warrant or letter of instruction in the register;b.prepare a proclamation in Sale Form 2 of the Schedule indicating the value of specific items and the condition of each item, such inventory to be signed by the owner of the goods or an adult person residing or working at the premises where the goods are attached or repossessed, and where any person refuses to sign such inventory the auctioneer shall sign a certificate to that effect;c.in writing, give to the owner of the goods seven days notice in Sale Form 3 of the Schedule within which the owner may redeem the goods by payment of the amount set forth in the court warrant or letter of instruction;d.on expiry of the period of notice without payment and if the goods are not to be sold in situ, remove the goods to safe premises for auction;e.ensure safe storage of the goods pending their auction;f.arrange advertisement within seven days from the date of removal of the goods and arrange sale not earlier than seven days after the first newspaper advertisement and not later than fourteen days thereafter;g.not remove any goods under the proclamation until the expiry of the grace period. 43.PW1 denied proper service; he stated the driver was only notified on the attachment day. The Appellant claimed service on the driver (Justus Nzioka) on 1st October 2019, but produced no signed acknowledgement or called the driver. The proclamation form itself contained errors (referred to “Court at Nairobi CMCC 1399” without year or full particulars). These defects undermined the notice’s validity and the Plaintiffs’ ability to respond or redeem the vehicle. 44.Courts demand strict compliance with auction procedures. In UAP Insurance Company Limited v Alfred Mdeizi t/a Pave Auctioneers & Another [2023] KEHC 22683 (KLR), the High Court emphasised adherence to statutory processes in execution. 45.The Rules provide that the inventory of proclaimed goods should be signed by the owner of the goods or an adult person residing or working at the premises where the goods are attached. The interested party did not disclose who declined to sign. Furthermore, the Rules require that if the person served declines to sign on the inventory, the Auctioneer must prepare and sign a certificate to that effect. No such certificate was exhibited to court. 46.The learned Magistrate rightly held that the Appellant failed to prove due service and compliance. The error was not merely “inadvertent” but went to the root of proper notice, especially combined with the jurisdictional issue. Auctioneers, as officers of the court executing decrees, are held to strict standards; deviations expose them to liability for wrongful interference with goods. 47.The following decision buttress the principle that auctioneers must execute statutory sales with absolute transparency, strict adherence to the Auctioneers Rules, and an unwavering duty of care to secure the best reasonable price Maina Wanjigi & Another v Bank of Africa Kenya Ltd & 2 Others [2015] eKLR, the court held that: deviations render sales irregular. The Appellant, as an officer of the court, bore responsibility for regularity. 3. Whether the court shifted the burden of proof to the applicant 48.In civil proceedings, the burden of proof lies on the party who asserts the affirmative of the issue. Under Sections 107, 108, and 109 of the Evidence Act, Cap 80, he who alleges a fact must prove it to the required standard on a balance of probabilities. 49.Order 22 rule 6 of the Civil Procedure Rules provides that:Where the holder of a decree desires to execute it, he shall apply to the court which passed the decree, or, if the decree has been sent under the provisions hereinbefore contained to another court, then to such court or to the proper officer thereof; and applications under this rule shall be in accordance with Form No. 14 of Appendix A…" 50.In this case, the Plaintiffs (1st and 2nd Respondents) bore the initial legal burden of proving that the attachment and sale of motor vehicle KBP 619K were irregular, unlawful, and that the Appellant (auctioneer) was liable for damages. 51.They pleaded and led evidence through PW1 that: no proper proclamation was served; the attachment occurred in Syokimau, Machakos County (outside the Appellant’s licensed jurisdiction); and the proclamation documents contained material defects that prevented effective notice. 52.Once the Plaintiffs established a prima facie case of irregularity, the evidential burden shifted to the Appellant to demonstrate that he had complied with the Auctioneers Rules, 1997 (particularly Rule 12 on proclamation and service), the Civil Procedure Act (Order 22 on execution), and that the process was regular. 53.The Appellant (DW2) asserted service on the driver Justus Nzioka on 1st October 2019 and attachment within Nairobi County, but his evidence was weakened by admission on cross- examination: the proclamation referred only to “CMCC 1399” without the year and cited the “Court at Nairobi” instead of Mavoko; he produced licences for 2021 and 2022 rather than 2019; and no signed acknowledgement of service or valuation report was produced. 54.Further, the star eyewitness, Mr. Justus Nzioka, the driver who allegedly received the proclamation and was present at attachment of the vehicle was not called to testify bey either party. 55.The trial court did not erroneously shift the burden onto the Appellant but weighed the totality of the evidence and found the plantiffs case more probable. 56.The Appellant, as a licensed professional and officer of the court executing a judicial process, had a duty to prove strict or substantial compliance with statutory requirements. 4. Whether the quantum of damages should be interfered with. 57.Thee appellant submitted that no valuation report that was produced as evidence at the hearing by the 1st and 2nd Respondents (Plaintiffs) or the Appellant to guide the court to compensate the 1st Respondent Kshs. 1,600,000. 58.This was the position in the case of Kenneth Nyaga Mwige v Austin Kiguta & 2 Others (2015) eKLR where the court held; It was a fatal error on the part of the respondents not to call any witnesses to produce the documents marked for identification…’ 59.The Appellant’s argument that the award should be pegged strictly at the auction price of Kshs. 1,200,000/= or that no damages should be awarded at all (because no valuation report was formally exhibited by the Plaintiffs) is misconceived. 60.PW1’s unchallenged testimony on its usage, the Appellant’s own admission that it was a working vehicle, and the permanent loss to the Plaintiffs justified the award. 61.The award of Kshs. 1,600,000/= was reasonable on the evidence. The lorry was a commercial transport vehicle earning income. No formal valuation report was strictly required from the Plaintiffs where the court could assess general damages for loss based on the circumstances, purchase or usage context, and the Appellant’s own documents. The public auction price of Kshs. 1,200,000/= reflected forced-sale undervaluation rather than true market value. The lower court’s figure was not excessive and requires no interference. 62.In conclusion, it is my finding that the learned Magistrate properly evaluated the evidence, applied the correct legal principles, and reached sound findings on irregularity, non- compliance with the Auctioneers Rules, and liability. There is no basis to interfere. The appeal is hereby dismissed with costs to the respondents. READ AND PUBLISHED IN THE CTS THIS 17TH JULY 2026 IN THE PRESENCE OF: NO PARTY PRESENTBEFORE HON JOYCE GANDANI, JUDGE HIGH COURT COURT ASSISTANT BENSIGNED BY/FOR:★ THEJUDICIARY OF KENYA★HON. LADY JUSTICE JOYCE MKAMBE GANDANIMACHAKOS HIGH COURT High Court Div Date: 2026-07-17 12:08:29The Judiciary of KenyaDoc IDENTITY: 27003392831829118219724669137Tracking Number:OOS73T2026