[2022] KEHC 582 (KLR)

Kamuya v Honda Motorcycle Kenya Ltd (Civil Miscellaneous Application E051 of 2021) [2022] KEHC 582 (KLR) (4 May 2022) (Ruling)

Neutral citation: [2022] KEHC 582 (KLR)

Republic of Kenya

In the High Court at Kitui

Civil Miscellaneous Application E051 of 2021

RK Limo, J

May 4, 2022

Between

Philip Makao Kamuya t/a Crater View Auctioneers

Plaintiff

and

Honda Motorcycle Kenya Ltd

Defendant

Ruling

1. Before me is a reference filed by the applicant, Philip Makao Kamuyo T/A Crater View Auctioneers through a Notice of Motion dated 18th January 2022.

2. The applicant was aggrieved by the decision of the taxing officer dated 11/1/2022 and delivered on 12/1/2022. In that decision the taxing officer taxed the applicant’s bill of costs dated 7th July 2021 as follows: -i.Item 4 was taxed offii.Item 5 taxed at Kshs. 30,000iii.Items 6 & 7 taxed offiv.Item 9 taxed off.v.Item 10 taxed at Kshs. 10,000

3. The applicant has moved this court to set aside the above decision of the taxing officer and remit the bill of costs back for re-taxation.

4. The grounds upon which this application/reference is made are listed as follows namely: -a)That the applicant filed auctioneers bill of costs under Part II of the forth schedule of the auctioneers Rules 1997 dated 7th July 2021b)That the learned taxing officer erred in fact and principle in failing to put into consideration the auctioneers rules guiding principles while taxing items numbers 4,5,6,7,8,9,&10 of the auctioneer’s bill of costs and more particularly item no. 4 the taxing officer taxed that item off regardless of the fact that the auctioneer had provided the distance he had covered from Nairobi to Kitui Law courts to obtain the warrants of sale and to Nairobi where he effected the proclamation and therefore the taxing officers decision is in contravention with auctioneers Rule 12(b) of the auctioneers’ rules.c)That the taxing officer’s taxation of item no. 5 on the commission at Kshs 30,000/- based on the decretal sum of Kshs. 2,958,663/- and the auctioneer having proclaimed goods worth Kshs 4,500,000/- as per the proclamation dated 30th March 2021 and annexed and marked PMK-3 in the affidavit in support of the auctioneer’s bill of costs dated 7th July 2021 then on that basis the commission of Kshs 30,000/- was grossly low and totally in disregard of the applicable principles.d)That the ruling dated 11th January 2022 and delivered on 12th January 2022 is wholly flawed and unjust for being founded on the wrong principles of lawe)That it is in the interest of justice that the ruling of the taxing officer dated 11th January 2022 on items 4,5,6,7,8,9 & 10 be set aside and the auctioneers bill of costs dated 7th July 2021 be remitted back for re-taxation.

5. The applicant has supported the above grounds with an affidavit by his Counsel sworn on 18. 01. 2022. The deponent has reiterated the above grounds adding that the taxing master erred by taxing off items disregarding that the applicant had travelled from Nairobi to Kitui to obtain the warrants and proclaim the goods. He avers that the taxing officer breached the provisions of Rule 12(b) of the Auctioneers Rules.

6. The Respondent on the other hand has opposed this application through a replying affidavit sworn by the Respondent’s Administrative Manager Eric Ngugi on 3rd February 2022.

7. The Respondent avers that the taxing officer exercised her discretion and arrived at a fair decision. On the disputed items, the Respondent avers that the court had issued a stay on attachment hence item 4 was correctly taxed off. On item 5, the Respondent avers that the value of the attached property was 1,500,000/- hence the item was properly taxed. The Respondent further avers that items 4, 6 and 7 were not particularized properly or pleaded hence correctly taxed off.

8. This court has considered this matter. The items in contention and which the applicant in seeking to have them re-taxed are items 4,5,6,7,8,9 & 10 in the applicant’s bill of costs dated 7th July, 2021. I will consider the items separately as listed.

9. In item No. 4, the applicant had listed travelling charges from Nairobi to Kitui and claimed that he had covered a total of 323Km and charged Kshs. 43 per kilometer which totals to Kshs. 41,667.

10. The taxing officer taxed off the item and the reason given is that proclamation was done in Nairobi where the Auctioneers and the Judgement Debtor are both based. The taxing master reasoning is as follows: -‘‘For item 4 and 9 it has been opposed. The auctioneer charged for the distance between Nairobi and Kitui but from the record the auctioneers firm is in Nairobi and the proclamation was done in Nairobi evidenced by the stamp on exhibit PMK-. It is not clear how many kilometers were covered between the two offices in Nairobi so that the tax master can work it out as per the Automobile Association Charges hence the same is taxed off.’’

11. The applicant was asking the taxing master to award or tax costs incurred in travelling to obtain warrants of attachment for proclamation or execution. The amount claimed is not taxable. It is the decree holder who is required by law to apply for execution. Order 22 Rule 6 of the Civil Procedure Rules provides: -‘‘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:…’’

12. The Fourth Schedule of the Auctioneers Rules also does not provide for fees payable to the auctioneer. The schedule does not anticipate for settlement of expenses incurred in procuring of warrants of sale by the auctioneer. It provides for fees for receipt of court warrants as follows Part II: Receipt of court warrants or letters of Instructions capped at Kshs 1000.

13. Rule 6 of the Auctioneers Rules further provides that the auctioneer is required to maintain a register of warrants and letters of instruction as follows;‘‘An auctioneer shall keep a register of all warrants and letters of instruction passed to him by a client, and shall record in it…….’’

14. The fees and disbursements payable to an auctioneer are also provided for at 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 repossession and sale of moveable and immoveable property under court warrants or letters of instructions shall be charged in accordance with these Rules.’’

15. The fees charged prior to attachment, repossession and sale are not provided for. An auctioneer receives instructions to execute warrants and letters of instructions which are procured by the decree holder. The taxing officer was correct in taxing off item 4 because the same is not supported by the law.

16. Under item 5, the applicant had asked for commission of Kshs. 94,173 based on the decretal amount of Kshs. 2,958,663. The trial court taxed the item at Kshs. 30,000 based on the value of the goods attached and the trial court held that the value of the goods attached was Kshs. 1,500,000. However as per the proclamation dated 30. 3.2021 the value of the proclaimed goods was Kshs. 4,500,000. According to the proclamation annexed by the auctioneer dated 30. 03. 2021 the value of the goods were Kshs. 4,500,000 (2 motor vehicles with total value of Kshs. 2,500,000 and office furniture and equipment valued at Kshs. 2,000,000.

17. The applicant’s grievance therefore is well founded.

18. The Court of Appeal in the case of National Industrial Credit Bank Limited v S. K. Ndegwa Auctioneer [2005] eKLR held: -‘‘The main object of paragraph 4 is clear. It is intended to provide values based on which the auctioneer’s fees should be assessed. We think that it is reasonable that the auctioneer’s charges for attachment should be based on the value of the goods attached and not on the decretal sum. It is to be remembered that the auctioneer is to be remunerated for the actual work done and not on the basis of what he could have done had he attached goods equivalent in value to the decretal sum. This is the meaning we give to paragraph 4 of Part II of the Fourth Schedule in order to make it operative…..”

19. The Court of Appeal in National Industrial Credit Bank Limited v S. K. Ndegwa Auctioneer(supra) also gave the definition of the essence of attachment as follows;‘‘It is clear from Rule 12 as read with Rule 14 of the Auctioneers Rules and the contents of the prescribed form, that is, Sale Form 2 that the proclamation of the movable goods is legally and effectively on attachment. From the moment the goods are proclaimed, the judgment-debtor is deprived of the legal possession and physical control of the goods and instead the goods are placed in the custody of the law and the court through the auctioneer. The judgment-debtor can only redeem them by the payment of the debt. If the judgment-debtor fails to pay the auctioneer moves to the second stage of conducting the sale of the attached goods.’’

20. From the foregoing, the Auctioneers’ fees ought to have been assessed based on the value of the attached goods which was Kshs 4,500,000/=. Paragraph 4 of Part II of the Fourth Schedule of the Auctioneers Rules provides that for anything over Kshs. 1,000,000/= the auctioneer is entitled to 2% meaning 2% of the value of the attached goods hence 2% of 4,500,000 = 90,000/-

21. On item 6 & 7, that is in relation to investigations and out of pocket expenses totaling Kshs. 15,100, the trial court correctly found that the same were not provided for and taxed them off. This court finds no basis to intervene.

22. On item 8, having found out that the figure in contention should have been Kshs. 90,000 the VAT chargeable is Kshs. 15,200.

23. On item 9 that transport charges during attachment, the trial court taxed off the item stating that the applicant did not provide the distance covered between its office to the point of proclamation to enable the taxing master workout the amount taxable. The trial court cannot be faulted on that. There is no justification or basis for the amount of Kshs. 10,000 claimed.

24. On item 10, on labour costs while carrying out the execution, the taxing officer taxed the item at Kshs. 10,000 reasoning that the applicant had not tendered reasons why eight people were required and what their respective roles were. This court has looked at petty cash vouchers from the applicant which are all dated 13. 05. 2021. The proclamation was done on 30. 3.2021. The applicant issued notification of sale of attached motor vehicle Registration No. KCT 355T on 13. 05. 2021. The dates reflected on the vouchers are not consistent with the action done on 30. 03. 2021. This court on that ground is unable to intervene or interfere with the decision of the taxing master on that item.In the end save for item 5 and 8 which I have pointed out above, the application by the applicant dated 18. 01. 2022 is disallowed. In view of the fact that the applicant has partly succeeded and partly failed I shall allow it half costs of this application to be agreed and/or taxed.

DATED, SIGNED AND DELIVERED AT KITUI THIS 4THDAY OF MAY, 2022. HON. JUSTICE R.K. LIMOJUDGE