[2022] KEHC 16097 (KLR)

Kenya Power & Lighting Co v Barongo t/a Bama Auctioneers (Civil Appeal E054 of 2021) [2022] KEHC 16097 (KLR) (1 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16097 (KLR)

Republic of Kenya

In the High Court at Nyamira

Civil Appeal E054 of 2021

WA Okwany, J

December 1, 2022

Between

Kenya Power & Lighting Co

Appellant

and

Patrick Omare Barongo t/a Bama Auctioneers

Respondent

(Being an Appeal against the Ruling of Hon. S. K. Arome (Mr.) – SRM Keroka dated and delivered at Nyamira on the 7th day of July 2021 in the original Keroka Principal Magistrate’s Court Misc. Civil Application No. 3 of 2019)

Judgment

Introduction 1. Through an application dated June 27, 2019, the respondent herein (an Auctioneer) sought the following orders: -1. That honourable court/taxing officer be pleased to asses/tax annexed auctioneers bill of costs.2. That consequently to prayer (1) herein above being granted, the honourable court be pleased to issue certificate of taxation in respect of the auctioneers bill of costs herein.3. That consequently to prayer (2) herein above being granted the honourable court be pleased to enter judgement in favour of the applicant in terms of the certificate of taxation.4. That costs of this application be borne by the respondent.5. That such further and or other orders be made as the court may deem fit and expedient.

2. The appellant opposed the application through a notice of preliminary objection and grounds of opposition in which it listed the following grounds: -1. A preliminary objection that the bill of costs was not served upon the respondent for it to be disputed first before the jurisdiction of this honourable court could be invoked pursuant to the provisions of rule 55 (3) of the Auctioneers Rules. Accordingly, this honourable court lacks jurisdiction to entertain this matter.2. That the value of the goods proclaimed and the value of the goods attached are at a total variance as no valuation was done and figure based on cannot be discerned from the pleadings how it was arrived at.3. That the amount indicated and or demanded in the applicant’s bill of costs is exaggerated and without any evidential or legal backing and the same ought to be disallowed.4. That items 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23 and 24 in the bill of costs are not provided for in law and the same should be disallowed.5. That the application as it stands is good for dismissal and the respondent prays that costs should be awarded to it.

3. The lower court considered the application and the auctioneer’s bill of costs and rendered its ruling on July 7, 2021 in which it dismissed the appellant’s preliminary object and taxed the bills of costs at Kshs 156,587. 90 thereby triggering the instant appeal.

The Appeal 4. Aggrieved by the ruling of July 7, 2021, the appellant filed the appeal that is the subject of this judgment and listed the following grounds of appeal in the memorandum of appeal: -1. That the learned Magistrate erred in law and fact in proceeding to assess the bill of costs yet no dispute had arisen as required under rule 55 of the Auctioneers Rules, 1997 instead of directing the applicant to file a suit for the recovery of the money owing, if any.

2. The learned Magistrate erred in fact and law in assessing the following items that are not provided for in law and were not supported by any evidence or legal backing: -i.Taking Inventory – Item 3ii.Travelling to proclaim – Item 4iii.Investigation of debtors assets – Item 5iv.Out of pocket expenses – Item 6v.Service of proclamation – Item 7vi.Towing charges – Item 11vii.Storage fees – Item 12viii.Postage stationery and telephone – Item 16ix.Preparation of auctioneers bill of costs – Item 18x.Filing of auctioneers bill of costs – Item 19xi.Services of auctioneers bill of costs – Item 20xii.Preparation commissioning and filing returning of service – Item 21xiii.Attending court for assessment – Item 22xiv.To lawyers fees for assessment – Item 23xv.Court collection fees – Item 24

3. The learned Magistrate erred in law and fact by over-assessing the commission payable and or owing to the respondent as in any case the value of the attached motor vehicle was not known.

4. The learned Magistrate erred in law and fact in proceeding to tax the bill of costs without giving reasons for arriving at his decision and conclusions and ignoring the respondent’s submissions. 5. The learned Magistrate erred in law and fact in proceeding to grant costs to the respondent.

6. The learned Magistrate erred in fact and in law in proceeding to assess the bill of costs at the awarded sum and issuing a certificate of taxation in respect of the said bill of costs and thereafter entering judgment in favour of the respondent.

5. Parties canvassed the appeal by way of written submissions.

Appellant’s Submissions 6. The appellant submitted that the lower court lacked the jurisdiction to entertain the application as the bill of costs was not filed in compliance with the provisions of rule 55 (3) of the Auctioneers Rules. According to the appellant, it was the party entitled to file the bill of costs for assessment and not the respondent.

7. The appellant also faulted the respondent for filing the bill of costs in court before first serving him with an invoice which it could either settle or dispute before the board or the court.

8. The appellant argued that the auctioneer’s bill of costs was not assessed in the manner provided for under part ii of the fourth schedule to the Auctioneers Rules as the trial Magistrate allowed items not provided for in the said schedule. The appellant urged the court to tax off the items that were not backed by law or evidence.

9. The appellant urged this court to tax the auctioneer bill of costs at Kshs 5,000/=.

Respondent’s Submissions 10. The respondent opposed the appeal and urged this court to uphold the findings of the lower court. The respondent submitted that the lower court’s decision was backed by law and evidence as the trial court reduced/taxed off several items in the auctioneer’s bill of costs before arriving at the final figure of Kshs 156,587. 90. The respondent accused the appellant for flip flopping on the subject of the lower court’s jurisdiction as it was on hand arguing that the said court lacked jurisdiction while at the same time asking this court to refer the bill to another Magistrate for assessment.

11. It was the respondent’s case that the bill of costs was taxed to scale.

Analysis and Determination 12. I have carefully considered the appellant’s appeal and the parties’ respective submissions. The issues for determination are as follows: -a.Whether the lower court had jurisdiction to entertain the respondent’s application and bill of costs.b.Whether the instant appeal is merited.

Jurisdiction 13. Rule 55 (3) of the Auctioneers Rules stipulates as follows: -In any other case where a dispute arises as to the amount of fees payable to an auctioneer a Magistrate or the board may, on the application of any party to the dispute assess the fees payable.

14. My finding is that by dint of the above rule, the trial Magistrate was seized with the jurisdiction to entertain the respondent’s application. My understanding of the said rule is that while it may be desirable that an auctioneer first submits its invoice to the instructing client before moving to the court or board for assessment, the mere fact that an invoice is not submitted does not preclude the court from entertaining the bill of costs. That is not to say that he did not have jurisdiction to tax the bill as jurisdiction to do so is clearly vested in him by rule 55 (3) of the rules

Assessment of the Bill of Costs 15. The appellant’s case was that the respondent’s bill of costs was exaggerated and that the trial Magistrate did not adopt the right scale/schedule in assessing the same.

16. It is trite that the auctioneers charges are provided for at part ii of the fourth schedule of the Auctioneers Rules. I have perused the auctioneers bill of costs that was filed before the trial court and i am in agreement that the said bill contains several items that are not provided for under that schedule, namely;i.To our commission on proclamation.ii.To taking of inventory.iii.Out of pocket expensesiv.To service of proclamationv.To investigationsvi.To travelling for proclamationvii.Security Hire Travelling to attachviii.Towing chargesix.Labour and personnelx.Handling chargesxi.Execution feesxii.To disbursementsxiii.To postage and stationery and telephonexiv.Preparation of auctioneers bill of costsxv.Filing of auctioneers bill of costsxvi.Service of auctioneers bill of costsxvii.Preparation commissioning and filing return of servicexviii.To attending court for assessmentxix.To lawyer’s fees for assessmentxx.To court collection fees.

17. My finding is that the auctioneers bill of costs was not drawn to scale and that the trial Magistrate erred in allowing items that are not provided for under the Auctioneers Rules. It is also trite that even on items that are allowable in the schedule, the amounts claimed must be pegged on the law as the basis of the fees charged (see National Industrial Credit Bank Limited v S K Ndegwa Auctioneer [2005] eKLR.

18. Having regard to the findings and observations that I have made in this judgment, I find that the instant appeal is merited and I therefore allow it with the result that the impugned ruling of the trial Magistrate is hereby set aside.

19. The respondent shall be at liberty to reapply for the assessment of his bill of costs but in strict compliance with the provisions of the part ii of the fourth schedule of the Auctioneers Rules. I make no orders as to costs.

20. It is so ordered.

JUDGMENT DATED, SIGNED AND DELIVERED AT NYAMIRA VIA MICROSOFT TEAMS THIS 1STDAY OF DECEMBER 2022. W. A. OKWANYJUDGEIn the presence of:N/A for the appellantAtisi for the respondentAnita – Court Assistant