https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12761

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT MIGORI** **MISC. APPLICATION NO. E024 OF 2024** **KENYA POWER & LIGHTING COMPANY LIMITED……………………APELLANT** **VERSUS** **OSCAR OTIENO ODONGO T/A** **ODONGO INVESTMENT AUCTIONEERS……………………………RESPONDENT** **RULING** Before the Court for determination is an appeal vide a Chamber Summons dated 21st May 2024, arising from the decision of the Taxation officer in Migori CMCC Misc. No. E002.of 2024. In the said application dated 22nd January 2024, the Respondents had moved the court under Rule 7 and 55 (3) of the Auctioneer Rules of 199 and the 4th schedule of the Auctioneers (amendment) rules 2009, for assessment of his fees in Migori CMCC no. 176 of 2022. That when the Respondent served the Appellant with proclamation upon the Appellants movable property dated 12th January 2024, the Appellant only paid decretal sum but ignored the fee note served together with the proclamation. That following the failure, the Respondent filed an application dated 22nd January 2024 seeking for assessment of their Bill of cost of the even date. The Taxing Officer delivered a ruling dated 16th May 2024, allowing the Bill as taxed, the basis for this appeal. The Appellant expressed their dissatisfaction with the Taxing Master’s in the manner she taxed a Bill of Costs and, prayed to the court to set aside the taxation on the grounds that: - 1. The learned Taxing Officer erred in la and fact in assessing the Respondents Bill of costs in the face of manifestly irregular proclamation. 2. That even assuming the proclamation was regular, then the learned Taxing Officer erred in law and fact in assessing the Respondents Bill at Kshs. 344,494/= a sum which is so manifestly excessive which has resulted in an injustice, having been assessed at a figure which is more than the permissible amount as per the Auctioneers Rules. 3. The learned Taxing Officer erred in law and in fact in taxing the Bill as presented, when she had a duty to assess the same along the provisions of the Auctioneers rules. 4. The learned Taxing Officer erred in law and in fact when she allowed the sum of Kshs. 252,000/= as commission on proclamation, without considering that the Respondent proclaimed goods worth 9,600,000/=which value was higher than the amount of decretal sum, which was Kshs. 1,252,000/= 5. The learned Taxing Officer erred in law and in fact when she allowed fees on service of proclamation at Kshs. 12,000/=when the Appellant had already charged travelling expenses for proclamation at Kshs. 30,000/= 6. The Learned taxing Officer erred in law and in fact in assessing item 8 in the said Bill, being travelling for proclamation when the same was not based on any method of calculation. 7. That the Taxing Officer wrongly exercised her discretion in assessing item 5, being taking of inventory at Kshs. 15,000/= when the same was undertaken the same day and in the same transaction, when the Respondent proclaimed the Appellants property and should not be allowed to benefit twice. 8. The Learned Taxing Officer wrongly exercised her discretion by wrongly assessing items 7 and 9 in the Bill being disbursements and postage, stationery and telephone at Kshs. 10,000/= and 8,000/= respectively while knowing such expenses should strictly be proven by way of receipts. 9. The Learned Taxing officer erred in law and in fact in by failing to accord the necessary weight to the appellants Replying Affidavit and Submissions. The Applicant/Appellant contended that this Court has jurisdiction to re-assess the Bill or refer it back to the taxing Officer with specific guidelines n the factors that it ought to consider during assessment. They urge the court to allow the application. Directions were taken that the appeal be canvased by way of written submissions. The Appellants in their submissions dated 6th February 2025 identified four issues for determination. On Whether the Respondent/ Auctioneer’s Bill of Costs dated 22nd January 2024 should be struck out, the Appellant submitted that there was no decree in Migori CMCC No.176 of 2022 capable of execution. That the law provides that a decree holder must first obtain a decree before proceeding to execute it. It was thus their submission that no draft decree was ever sent for approval to the Appellant’s counsel and the same was filed in the Respondents Replying affidavit after it was raised by the Appellant. They relied in the case of **Rubo Kimngetich Arap Cheruiyot V Peter Kiprop Rotich [2006] eKLR, the Court stated as follows:** “**It is the decree as a legal instrument which is executable and not the judgment by itself. It is my view that in a suit what is executable is the “Decree” of the Court. I have carefully perused the Court record and find that no decree has ever been drawn up, approved and signed by the Court through the Deputy Registrar or otherwise.”** It was their further submission that the proclamation flawed for reasons that no certificate was issued to the fact that the person served with the proclamation decline service, that the proclamation was made during Christmas recess, when times stops running, that the proclamation was served on 12th January 2024, on the same day the Appellant settled the decretal amount and that the Auctioneer was not licensed to practice at the time of proclamation. The Appellant further submitted that a proclamation is so fundamental in the execution process that the same should never be tainted with any illegalities was in the present case. They urged the Court to find that the execution cannot stand and hence no fees should be payable to the Auctioneer/Respondent. On whether the Respondent/Auctioneer’s Bill of Costs should be re-assessed the alternative, the appellant submitted that the Respondent proclaimed goods worth KShs.12,600,000/= against a judgment sum of KShs.1,252,000. That the auctioneer cost should be assessed from the value of the property proclaimed and not from the decretal sum, and that the conduct of the auctioneer of proclaiming goods worth much more than the decretal sum was a bid to unjustly increase his commission. Reliance was placed in the case of **Julius Mwale T/A Mwal-Mart Supermarket V Kennedy Shikuku T/A Eshikhoni Auctioneers & Another (Miscellaneous Civil Case E006 Of 2023) [2023] KEHC 23863 (KLR) (11 October 2023) (Judgment) where the Court while appreciating the Court of Appeal’s decision in** [**National Industrial Credit Bank Limited v S. K. Ndegwa Auctioneer**](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/judgment/keca/2005/22) **[2005] eKLR had this to say;** **‘‘The Court of Appeal gave its reason for application of the value of the goods attached for reasons that at times it would work injustice on the Auctioneer where the value of the goods attached may be many times less than the decretal sum. It was that prospect of injustice that informed the ultimate finding that the value of the goods be the yardstick. That yardstick should equally present itself as minding about the person obligated to pay the Costs. Take the situation where the decretal sum to be 1,000,000, and the Auctioneer walks into a yard of, say a car dealer, and proclaims two high end vehicles each valued at 10,000,000, the decretal sum is paid immediately but a dispute arises on Auctioneers’ fees. Would it be just to base the commission on the value of the attached property even when the same may be apparently present a situation of over attachment”.** The Appellants thus urged the court set aside, reviewed and /or varied for reasons that the taxing master allowed items/fees that were not provided for under the fourth schedule and which were not supported by any evidence. On whether the taxing master was obligated to give reasons for decision, it was submitted that the taxing master ought to have given her reasons for taxing the Bill as drawn before rendering her decision. They relied in the case of **Julius Mwale t/a Mwal-Mart Supermarket v Kennedy Shikuku t/a Eshikhoni Auctioneers & another (Miscellaneous Civil Case E006 of 2023) [2023] KEHC 23863 (KLR) (11 October 2023) (Judgment) where the Court stated:** **‘‘The** [**Auctioneers’ Rules,**](http://kenyalaw.org/kl/index.php?id=705#:~:text=All%20auctioneers%20shall%20execute%20all,8.) **2017 do not precisely and expressly provide a requirement for the taxing master to provide reasons for his or her decision. However, in taxing Costs, the master exercises judicial discretion and it well settled that for any discretion to pass as judicial, it must be based or supported with reasons, lest it take the face”.** On the issue of cost, the Appellant submitted that the Respondents be condemned to pay the cost of this appeal. **The Respondent i**n their submissions dated 10th April 2025, and in response to the Appellants submissions on the issue of the validity of the decree, submitted that there was a valid decree, which was duly served upon the Appellant. It was further submitted that issuance of the decree was not part of the Respondents duties and that if the Appellant had issues with the manner in which the decree was issued, then the proper forum was the court issuing the decree and not the Appellate court. It was their further submission that the said decree is still valid and has not been procedurally challenged, recalled and/or nullified, valid warrants of attachment and sale were validly issued to the Respondent for execution against the Appellant on the 03/01/2024. That the warrants have not been recalled, set aside and/or nullified hence proper, legal, valid and/or procedural. On the issue of the person served with the proclamation, the Respondent submitted that the Appellant is playing a game of mere denial because the Respondents has no other way of proving that the said staff was the Appellants employee at Migori branch at the time of service. That the list of employee’s names was postdated a month after the date of service of the proclamation and that the Appellant is mischievous On whether proclamation made after payment the Respondent submitted that the Appellant cannot on one hand admit that indeed the proclamation was made but after payment and on the other hand deny service of the same proclamation. It was their submission that Appellant through their advocates drew payment cheques in a bid to create a theory to benefit them On whether proclamation was made on 12/01/2024 during Christmas recess, the Respondent submitted that pursuant to the written consent they signed on 02/10/2023 T, 60 days stay had lapsed and the Respondent was at liberty to execute his consent thereafter and that the Respondent was only barred from computing the days in the proclamation notice until 14th January 2023. On whether the Respondent being unlicensed to operate on 12th January 2024, it was submitted that Section 12, sub section 5 of the Auctioneers Act of 1996 provides for the transition period between renewal of licenses and reads as follows: **“A licence issued under this section shall, unless earlier revoked, be valid for twelve months next following the date of issue: Provided that where an application for its renewal is made, the licence shall be deemed to continue in force until the application for its renewal is determined. "** That the Respondents license issued on 26/01/2023 was to legally expire on 26/01/2024 and that the Respondent had applied for renewal of the said licence before end of November 2023, which application was allowed and a new licence issued to the Respondent on 24/01/2024 It was therefore the Respondents submission that the Appellant is intentionally trying to misinterpret the law. On the issue of re-assessment of the Respondents costs, the respondent submitted that his bill was/is drawn to scale as provided for under the 4th schedule and the relevant authorities were given to guide the taxing master and same should not be unnecessarily be disturbed. The Respondent prayed that the Appellant's appeal be dismissed with costs. The appeal was canvassed by way of written submissions. **ANALYSIS AND DETERMINATION** Having carefully considered the submissions together with the record the issues arising for determination are:- **1. Whether the execution process and proclamation were so fundamentally irregular as to disentitle the Respondent from any auctioneer's fees.** **2. Whether the Taxing Officer erred in assessing the Auctioneer's Bill of Costs.** **3. Whether the taxation should be interfered with by this Court.** **4. Who pays the costs.** **Analysis and determination** The jurisdiction of this Court in an appeal against taxation is well settled. A Judge will not interfere with the exercise of discretion by a Taxing Officer unless it is shown that the Taxing Officer acted on a wrong principle of law, failed to take into account relevant considerations, took into account irrelevant considerations, or the award is manifestly excessive or manifestly low. On whether the execution was irregular The Appellant submits that there was no valid decree capable of execution; that the proclamation was defective; that it was effected during the Christmas recess; and that the Respondent lacked a valid practicing licence. The Respondent, on the other hand, maintains that a valid decree and warrants of attachment existed and have never been set aside, recalled or declared invalid by the court that issued them. Having considered the record before this Court, I am unable to find that the execution process was rendered a nullity. The validity of the decree and warrants of attachment was not determined by the subordinate court and there is no evidence that they have been set aside by a competent court. This Court, sitting as an appellate court on taxation, cannot invalidate execution proceedings through an appeal against taxation. Similarly, the challenge regarding service of the proclamation raises factual disputes incapable of resolution in these proceedings. Regarding the Respondent's licence, Section 12(5) of the Auctioneers Act provides that where an application for renewal has been made, the existing licence continues in force until the renewal application is determined. The Respondent attached evidence indicating that renewal had been applied for before expiry of the previous licence. The Appellant has not placed before this Court evidence demonstrating that the licence had lapsed without the benefit of the statutory protection. Accordingly, I find no basis for holding that the Respondent forfeited his entitlement to fees on account of an illegal execution. On whether the taxation was proper, the Appellant principally challenges the commission of Kshs. 252,000/= on grounds that the Respondent proclaimed goods allegedly worth Kshs. 9.6 million whereas the decretal sum was Kshs. 1,252,000/=. The Court of Appeal in **National Industrial Credit Bank Ltd v S.K. Ndegwa Auctioneer [2005] eKLR** held that; **‘‘It is intended to provide values on the basis of which the auctioneer’s charges 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 be attached goods equivalent in value to the decretal sum. That is the meaning we give to paragraph 4 of Part II of the Fourth Schedule in order to make it operative. We are, however unable to assess the auctioneers’ fees since there is no or not sufficient evidence of the value of the goods attached. We think that, it is appropriate that the fees of Shs.1,000,000/= assessed under Item 4 of the respondent’s schedule of charges should be set aside and the matter remitted to the Deputy Registrar to assess the auctioneers’ fees on the basis of the value of the properties attached.’’** However, as correctly observed in **Julius Mwale t/a Mwal-Mart Supermarket v Kennedy Shikuku t/a Eshikhoni Auctioneers & Another [2023] KEHC 23863 (KLR)**, that the principle should not be applied mechanically where it would produce injustice through obvious over-attachment as properly cited by the Appellant herein above. The purpose of auctioneer's commission is to fairly compensate the auctioneer for work done and not to unjustly enrich him. The record shows that the value of the goods proclaimed substantially exceeded the decretal amount. Although an auctioneer is entitled to identify attachable property sufficient to satisfy the decree, the discretion must be exercised reasonably and proportionately. The Taxing Officer's ruling, however, does not demonstrate whether she considered the issue of alleged over-proclamation or whether the commission claimed was proportionate in the circumstances. Equally, the ruling does not disclose the basis upon which the impugned items were assessed. The Appellant further challenges the awards under service of proclamation, Kshs. 12,000/=, travelling expenses at Kshs. 30,000/=, inventory charges at Kshs. Kshs. 15,000/= and disbursements and postage on grounds of duplication and lack of proof. While taxation remains largely discretionary, items claimed as disbursements ordinarily require proof, and where separate charges are claimed for services performed contemporaneously, the Taxing Officer ought to demonstrate why each item was taxed differently. Where proof is unavailable, the Taxing Officer should explain why the expenditure was nevertheless allowed. The impugned ruling does not indicate whether any documentary evidence was produced in support of those claims. The Court therefore cannot ascertain whether the discretion was exercised upon proper material. On the issue whether the Taxing Officer had a Duty to Give Reasons, neither the Auctioneers Act nor the Auctioneers Rules expressly require a detailed reasoned ruling, the Taxing Officer exercises judicial discretion. Judicial discretion cannot exist in a vacuum. Article 47 of the Constitution guarantees fair administrative action while Article 50 entrenches the right to a fair hearing. These constitutional values require that parties understand the basis upon which a judicial determination affecting their rights has been reached. Reasons also facilitate meaningful appellate review. The ruling herein simply allowed the disputed items without setting out the applicable provisions of the Fourth Schedule, the calculations employed, or the factual findings supporting each award. While reasons need not be elaborate, they must disclose the path by which the decision-maker reached the final assessment. In their absence, this Court cannot determine whether the Taxing Officer exercised her discretion judicially or merely adopted the Bill as drawn. This court is therefore persuaded that this is an appropriate case for interference, not because the amounts awarded are necessarily incorrect, but because the taxation does not disclose the principles applied in arriving at the impugned assessment. Accordingly, I make the following orders:- 1. The appeal is hereby allowed. 2. The ruling and taxation delivered on 16th May 2024 in Migori CMCC Misc. Application No. E002 of 2024 are hereby set aside. 3. The Auctioneer's Bill of Costs dated 22nd January 2024 shall be remitted for fresh taxation before a different Taxing Officer. 4. In undertaking the fresh taxation, the Taxing Officer shall specifically consider: - 5. whether the value of the proclaimed goods was proportionate to the decretal sum 6. whether the commission claimed accords with the Fourth Schedule of the Auctioneers Rules. 7. whether the challenged items constitute duplication. 8. whether all disbursements claimed were adequately proved; and - shall provide reasons for the assessment of each disputed item. 9. Each party shall bear its own costs of this appeal. It is so ordered. **DATED, SIGNED AND DELIVERED AT MIGORI THIS 30TH DAY OF JULY, 2026** **ANNE ONG’INJO** **JUDGE** In the presence of:- Victor – Court Assistant Calvince – Court Assistant Mr. Mbeka Advocate for the Appellant/Applicant Respondent – Present Virtually but unresponsive