[2014] KEHC 2259 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA

AT BUSIA.

ELC. NO. 173 OF 2014 (FORMERLY HCC. 27 OF 2012)

MARGARET AUMA OMOTTO..............................PLAINTIFF/APPLICANT

=VERSUS=

MARIA WERE ODUOR............................DEFENDANT/1ST RESPONDENT

DASEMY AUCTIONEERS.............................................2ND RESPONDENT

R U L I N G.

The Applicant, MARY AUMA OMOTO, by notice of motion under certificate of urgency dated 4th August, 2014 prays for stay of sale of her four heads of cows attached on 1st August, 2014, and an order that the auctioneers fee be paid by the Respondent, Maria Were Oduor. She also prays for costs. The application is based on the four grounds on the application summarized as follows:

a. That the execution was in contravention to Order 49 rule 5 of the Civil Procedure Rules as she had lodged a notice of objection to the taxation.

b. That no proclamation of attachment was issued to her.

c. That the value of the four heads of cows was not even 10% of their market value.

d. That the auctioneer’s fee in the notice of sale was high.

The application is also supported by the affidavit of Margaret Auma Omoto sworn on 4th August, 2014.

The application was placed before the duty Judge, Bungoma, who issued prayers 1 and 2 on the 5th August, 2014. The Applicant was ordered to serve the application for interpartes hearing on 12th August, 2014. The order was extracted and served with the application on counsel for the Respondent and Dasemy Auctioneers as confirmed in the affidavit of service of Melisa N. Onyango sworn on 11th August, 2014.

Maria Were Oduor, filed a replying affidavit sworn on 12th August, 2014, opposing the application. She among others deponed as follows:-

1. That the Deputy Registrar’s ruling on taxation of costs was delivered on 28th May, 2014 and 30 days stay granted.

2. That by the time the stay orders of 5th August, 2014 were issued the attached livestock had been sold.

3. That the Applicant had not made any proposal for payment.

4. That the Applicant had been served with all the auctioneers notices.

When the application came up for hearing interpartes on 12th August, 2014, it was on application of the parties rescheduled to 23rd September, 2014.

I have carefully considered the grounds, on the application, supporting affidavit, replying affidavit, written and verbal submission by Applicant and Respondent’s counsel and found as follows:

1. That the Applicant had commenced proceedings against the Respondent, Maria Were Oduor through the originating summons dated 25th April, 2013.

2. That through the Court’s judgment of 27th November, 2013, the Applicants suit was dismissed with costs.

3. That the Respondent’s counsel filed the party to party bill of costs dated 11th December, 2013 on the 4th February, 2014 and a ruling was delivered by the Deputy Registrar on 28th May, 2014.

4. That the Deputy Registrar granted a 30 days stay from 28th May, 2014 which expired on or about 27th June, 2014.

5. That on 3rd June, 2014 the Applicant filed a notice of objection to the decision of the taxing officer dated 2nd June, 2014 in terms of Rule 11 of the Advocates (Remuneration) Order. Under the provision of sub rule 1 of Rule 11 of the said Order, a party to taxation proceedings is entitled to seek for reasons on the specific items by giving a notice to the taxing officer within 14 days after taxation. The taxing officer is required under sub rule 2 to;

‘’ …forthwith record and forward to the objector, the reasons for his decision on those items and the objector may within fourteen days from the receipt of the reasons apply to a Judge by Chamber Summons, which shall be served on all the parties concerned setting out the grounds of his objection.’’

6. That the Applicant’s notice of objection dated 2nd June, 2014 and filed on 3rd June, 2014 had requested reasons for items 1 to 10, 13, 17 and 18 of the bill of costs. The wording of Rule 11 (2) of the Advocates (Remuneration) order is in mandatory terms meaning that the taxing officer is obligated, upon receipt of the notice filed within 14 days from the date of taxation, to give reasons for the items specified. The notice dated 2nd June, 2014 and filed on 3rd June, 2014 was filed within time as the taxation had taken place on 28th May, 2014. The court notes that up to now, there is nothing in the file to confirm that the reasons have been supplied.

7. That as the Applicant was waiting for a response to the notice dated 2nd June, 2014, the certificate of costs dated 25th June, 2014 was issued. Then on 8th July, 2014, the Respondent applied for execution of the decree and the warrants of attachment and the sale of movable property dated 17th July, 2014 were issued to Dasemy Auctioneers, the 2nd Respondent.

8. That though the 30 days stay granted on 28th May, 2014 were to expire on or about 27th June, 2014, and that the Applicant had not moved the court for a further stay, the fact that she was yet to receive a response to her notice of objection dated 2nd June, 2014 would have required the issuance of certificate of costs and attachment be held in abeyance until after 14 days from the date the reasons requested by Applicant had been supplied to confirm whether a reference to the judge would have been preferred.

9. That upon the warrants of attachment and sale of movable property having been issued to the 2nd Respondent, the procedure and process to be followed is as provided under section 13 of the Auctioneers Act Chapter 526 of Laws of Kenya which states;

‘’13. Perishable goods and livestockupon receipt of a court warrant or letter of instruction, the auctioneer shall in the case of goods of a perishable nature or 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 which inventory shall be signed by the owner of the goods or an adult person residing or working at the premises where the goods are attached, and where a person refuses to sign such inventory the auctioneer shall sign a certificate to that effect.

c. Give in Sale From 3 to the owner of the goods seventy two hours notice within which the owner may redeem the goods by payment of the amount set forth in the court warrant or letter of instruction:

Provided that in the case of perishable goods, no such grace period shall be necessary;

d. on expiry of the period of notice without payment remove the goods;

e. ensure safe storage of goods pending their auction;

f. arrange immediate advertisement and sale.’’

10. That the only document the Applicant received from the auctioneer is the one headed the ‘’NOTIFICATION OF SALE’’ dated 1st August, 2014 indicating among others that,

‘’ the goods proclaimed and listed below are hereby removed for safe storage in our premises pending auction on 04/08/2014……..’’

11. That the Respondents have not provided any other document that may have been served on the Applicant. The replying affidavit of Maria Were Oduor, sworn on 12th August, 2014 at paragraph 7 only states in general terms that;

‘’ 7. That the applicant was duly served with all the auctioneers notices.’’

This does not, without exhibiting copies of the notices served, amount to a rebuttal of the Applicant’s contention that only the copy annexed to her affidavit which is described in (10) above was served.

12. That in view of the finding in (10) and (11) above, it is clear that the proclamation document envisaged in Section 13 (b) of the Auctioneers Act was not prepared and issued to the Applicant by the auctioneer. It is that document that could have indicated the values of each of the four heads of cattle and their condition at the proclamation stage. The Auctioneer is required under the said subsection to ask the owner of the goods being proclaimed or an adult representative to sign the document and should they decline to do so, the auctioneer to sign a certificate to that effect.

13. That the notification of sale served on the Applicant on 1st August, 2014, which was a Friday, indicated that the auction would take place on Monday, the 4th August, 2014. The provision of Section 13 (c) of the Auctioneer Act requires the owner of the goods to be given 72 hours within which to redeem the goods by making payment.

14. That Order 50 Rule 2 of the Civil Procedure Rules is relevant in computation of time of less than six days. It states as follows:

‘’ 2. where any limited time less than six days from or after any date or event is appointed or allowed for doing any act or taking any proceedings, Sundays, Christmass Day and Good Friday, and any other day appointed as a Public holiday, shall not be reckoned in the computation of such limited time.’’

This clearly means that when computing the 72 hours, the 3rd August, 2014 which was a Sunday would not be included in the computation.

15. That the 72 hours which is equivalent to three days could not have expired by the 5th day of August, 2014 which is the date the auctioneer indicated in his returns dated 6th August, 2014 to be the date the auction took place view of the provision of Order 50 Rule 8 of the Civil Procedure Rules. The notification of sale served on Applicant had indicated the auction would be on 4th August, 2014 and in the absence of copies of the advertisement showing the date of the auction was 5th August, 2014, the Applicant and general members of the public would not have known of the auction and the venue of the auction.

16. That in view of Order 50 Rules 2 and 8 of the Civil Procedure Rules, the earliest the auction could have taken place after the expiry of 72 hours from 1st August, 2014 was on the 6th August, 2014 and not before.

17. That the interim orders of stay were issued on 5th August, 2014 and served on the Respondents by the afternoon of 6th August, 2014 as confirmed in the affidavit of service sworn on 11th August, 2014.

18. That the attachment and sale of the four heads of cattle of the Applicant was not carried out in accordance with section 13 of the Auctioneers Act. The Law required theAuctioneer to first issue a proclamation detailing the values and descriptions of the four cows. Thereafter the auctioneer was required to issue the Sale Form 3 and after the expiry of the 72 hours remove the four cows and store them. This was to be followed with the appropriate advertisement for the auction and the auction itself. This procedure was not followed and the Applicant cannot be faulted for reading mischief in the way the whole process was conducted.

19. That flowing from the finding in (18) above, the sale of the four cows by the auctioneer was without following the due process and therefore illegal. The 2nd Respondent, as the auctioneers who carried out the attachment and sale without abiding by the provisions of Section 13 of the Auctioneers Act, are officers of the court as held by the court of Appeal in National Bank of Kenya Ltd –vs- Jolly Family Stores & Another [2005]eKLR which it stated;

‘’ ..auctioneers, while executing decrees of the courts, are indeed agents of the court. It is from the courts which gives them authority to execute, for example by the different modes of warrants and the same court can order them to stop the execution process.’’

The auctioneers were therefore expected to be faithful to the provisions of the law in carrying out the attachment and sale and unfortunately they failed. The Respondents are therefore answerable for the Applicant’s costs and damages that she may have suffered as a result of their failure to obey the provisions of section 13 of the Auctioneers Act in carrying out the attachment and sale. The court notes that the Respondents have indicated the execution has been completed and the sale cannot be stopped

20. That for reasons set out above, the application dated 4th August, 2014 is allowed in the following terms:

(a) That the attachment and sale of the Applicant’s four cows is hereby declared to have been carried out without following the provisions of section 13 of the Auctioneers Act and hence illegal.

b) That the Respondents are liable for the costs of the attachment and sale of the four cows of the Applicant.

c) That in view of the fact that the sale of the four cows cannot be reversed, the stay orders issued on 5th August, 2014 are hereby vacated.

d) That the parties to appear before the Deputy Registrar with a view of the exploring the possibility of agreeing on the value of the four cows and compensation thereof failure to which the Applicant be at liberty to move the court as appropriate.

e) The Deputy Registrar do respond to the Applicant’s notice of objection dated 2nd June, 2014 and filed on 3rd June, 2014 within the next 14 days.

It is so ordered.

S. M. KIBUNJA,

JUDGE.

DATED AND DELIVERED ON 23RD DAY OF OCTOBER, 2014.

IN THE PRESENCE OF; PLAINTIFF/APPLICANT ONLY.

JUDGE.