https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8488

Maseno University v Ikimwanya Auctioneers (Civil Appeal E015 of 2026) [2026] KEHC 8488 (KLR) (9 June 2026) (Ruling) Neutral citation: [2026] KEHC 8488 (KLR) Republic of Kenya In the High Court at Homa Bay Civil Appeal E015 of 2026 JR Karanja, J June 9, 2026 Between Maseno University Appellant and Ikimwanya Auctioneers Respondent (Being an Appeal/Reference from the Ruling of Hon. Jacinta A. Orwa (CM) delivered on 16th February 2026 in Homa Bay MC CC No.56 of 2017) Ruling 1.At this juncture, the application vide, the chamber summons dated 23rd February 2026 seeks the following orders:-1.An order for stay of execution of the ruling and order made on 16th February 2026, in Homa Bay CMCC No.56 of 2017 pitting the applicant University against the South Nyanza, Teachers Savings and Credit Co-operative Society Ltd and the respondent herein, Ikimwanya Auctioneers pending the hearing and determination of this reference.2.An order to set aside, review and/or vary the ruling afore mentioned on assessment of the auctioneer/respondent’s Bill of costs dated 30th October, 2024 assessed at kshs.1,300,895/28cts;3.Alternatively, an order that the respondent/auctioneer’s Bill of costs be remitted back for reassessment by the Taxing Officer/Magistrate with appropriate directions on assessment. 2.The grounds for the application are set out in the chamber summons and fortified by the averments contained in the supporting affidavit dated 23rd January 2026 deponed by the applicant’s counsel, Jael A. Onyango. The respondent opposes the application on the basis of the averments in the replying affidavit dated 6th march 2026 and in particular paragraphs three(3) to seven (7) of the affidavit. 3.The hearing of the application was by way of written submissions. Both sides filed their respective submissions through Owiti, Otieno & Ragot Advocates for the applicant and Aluoch Odera and Nyauke Advocates for the respondent.The court has given due consideration to the application on the basis of the grounds in support and opposition thereto in the light of the rival submissions. 4.Basically, the issues arising from determination are Firstly, whether the application is competent and proper before the court as an appeal or reference against the impugned decision of the taxing officer made on 16th February 2026 regarding the respondent/Auctioneers’ Bill of costs dated 30th October, 2024. Secondly, whether the applicant has provided sufficient reasons for stay of execution of the impugned ruling pending hearing and determination of this reference or appeal. Thirdly, whether the taxing officer properly applied her discretion and the applicable statutory provisions of the law in arriving at the impugned decision in which the respondent’s disputed Bill of costs was taxed at kshs.1,300,895/28cts. 5.As regards the first issue, the format and procedure of an appeal against the decision of a taxing officer is stipulated in Rules 55(4) and (5) of the Auctioneers Rules 1997 under which this application is brought for purposes of the disputed bill of Costs, Rule 55(4) of the Rules this provides that:An appeal from a decision of a registrar or a magistrate or the Board under sub rules (2) and (3) shall be to a judge in chambers”.Sub section (5) of the Rules provides that:The memorandum of appeal by way of chamber summons setting out the grounds of the appeal shall be filed within 7 days of the decision of the registrar or magistrate”. 6.Paragraph 15 of the applicant’s chamber summons dated 23rd February 2026 sets out in detail the ground of appeal against the impugned decision of the taxing master and therefore this application falls within the purview of an appeal rather than a refence and is indeed proper and competent before the court. 7.As regards the second issue for determination Order 42 Rule 6 of the Civil Procedure Rules provides that:(1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient case order stay of execution of such decee or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty on an application being made to consider such application and to make such order therein as may to it seem just and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.2)No order for stay of execution shall be made under sub rule(i) unless-a)The court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; andb)Such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant”. 8.Clearly, sub section (2) of Rule 6 of Order 42 CPR sets out the parameters for grant of stay. The applicant/appellant in its supporting grounds contends that unless a stay order is made the appeal will be rendered nugatory and that it will suffer substantial loss if the same is paid to the respondent and the appeal succeeds. 9.Under Rule 6(2) of order 42 CPR, the arguability or merit of an appeal is not a ground for stay of execution. The concept of an appeal being rendered nugatory would be a good ground for stay of execution under the Rules of the Court of Appeal and not under the aforementioned provision of the Civil Procedure Rules especially if consideration is largely placed on the merit of the appeal. However, the concept may apply within the Rule on the basis of “substantial loss” depending on the circumstances of each particular case and the nature of the decree sought to be executed. 10.It is not the law that a stay be granted, but each case depends on its own peculiar facts (see David Mortion Silversten Vs Atsango Chesoni (2002)1 KLR 867).For an application to succeed under order 42 Rule 6(2) of the CPR, it must be demonstrated inter-alia that substantial loss may result unless a stay order is made. The applicant must clearly state and establish what loss if any, he/she stands to suffer. 11.In Shell Ltd Vs Kibiru & another [1986]KLR410 the Court of Appeal held that in applications for stay the court should balance two parallels propositions, first that a litigant, if successful should not be deprived of the fruits of a judgment in his favour without just cause and secondly that execution would render the proposed appeal nugatory.The court further held that the refusal of a stay of execution would not render the appeal nugatory as the case involved a money decree capable of being repaid. 12.The court in the aforementioned case, stated that:-it is usually a good rule to see if order XLI Rule 4 of the Civil Procedure Rules can be substantiated. If there is not evidence of substantial loss to the applicant, it would be a rare case when an appeal would be rendered nugatory by some other event. Substantial loss in its various forms is the corner stone of both jurisdictions for granting a stay. That is what has to be prevented. Therefore without this evidence it is difficult to see why the respondents should be kept out of their money”. 13.The onus of proving substantial loss rests upon an applicant and in this case the applicant has not discharged the obligation by its failure to prove that it shall suffer substantial loss by payment of the decretal amount to the respondent. There was not evidence to establish that the respondent would be incapable of refunding the amount paid to him should the appeal succeed. 14.As to security of costs for due performance of the decree in terms of Rule 6(2)(b) of Order 42, the applicant has indicated its willingness to provide security in the form of a bank guarantee pending the hearing and determination of the appeal. However, the issue of security is discretionary. It is upon the court to determine the security and the form it takes. 15.In GianFranco Manenthi & Another Vs Africa Merchant assurance Co. Ltd [2019]Eklr, it was observed that:-“The applicant must show and meet the condition of payment of security for due performance of the decree. Under this consideration a party who seeks the right of appeal from a money decree of the lower court for an order of stay must satisfy the condition of security. In this regard the security for due performance of the decree order. Order 42 Rule.6(1) of the Civil Procedure Rules, it is trite law that the winner of litigation should not be denied the opportunity to execute the decree in order to enjoy the fruits of his judgment in case the appeal falls ……………………………………………………Thus the objective of the legal provision on security was never intended to fetter the right of appeal. It was also put in place to ensure that court’s do not assist litigants to delay execution through filing vexations and frivolous appeal. In any event, the issue of deposit of security for due performance of decree is not a matter of willingness by the applicant but for the court to determine. Counsel for the applicant submitted that he is ready to provide a bank guarantee as security for due performance of the decree”. 16.Basically, on this whole issue of stay of execution pending appeal, the application was unnecessary in as much as it was combined with the main application for reviews of the decision of the taxing officer on the subject auctioneer’s Bill of costs. This present application being the actual appeal against the impugned ruling/decision, its determination at this junction would render the appeal fully heard and determined. In the circumstances, there would be no need for an order of stay of execution pending appeal. The ex-parte order issued in that regard on 24th February 2026 served its purpose when the hearing of this application cum appeal commenced. 17.In sum, the applicant’s prayer for stay orders was a misconception and was in any event, in-capable of being granted for want of proof.With regard to the third and most crucial issue for determination, it must foremost be stated that an auctioneer’s Bill of Costs is meant to be a detailed statement of fees/charges and expenses for services rendered in the execution of court orders or repossession assessed in accordance with the Auctioneers Act and Rules and the fourth schedule. 18.Being a regulated statement an auctioneer’s Bill of costs is subject to taxation and judicial oversight to ensure compliance with statutory provision and fairness to the parties involved.The submission of an auctioneers Bill of costs for taxation is generally a judicial process to ensure that the auctioneer’s charges are reasonable and within statutory limits. A taxing officer/magistrate is lawfully permitted to reassess the bill if a dispute arises over the amount claimed. 19.It is the sole responsibility and discretion of the taxing officer to decide the amount payable when a dispute arises between parties in that regard.Rule 55 of the Auctioneers Rules provides for the fees and disbursement payable to an auctioneers as follows:-(1)Except as may be provided by any other written law of by contract the fees set out in the fourth schedule payable to the auctioneer for the attachment repossession and sale of movable and immovable property under court warrants or letters of instruction shall be charged in accordance with these Rules.(2)Where a dispute arises as to the amount of fees payable to an auctioneers –a)In proceedings before the high court orb)where the value of the property attached or repossessed would bring any proceedings in connection with it within the monetary jurisdiction of the high court.A registrar, as deponed in the Civil Procedure Rules (Cap 21 , sub-rule), may on the application of any party to the dispute assess the fee payable.The fourth schedule referred to in sub-Rule (1) above, provides for the actual sum or amount of fees payable to an auctioneer for undertaking the tasks specified therein. 20.In essence, the fees are expected to be reasonable, proportionate and based on evidence reflecting the actual work performed and the value of goods attached or sold. Regarding paragraph 4 of part II of the fourth schedule, the Court of Appeal in the case of National Credit Bank Ltd Vs S.K. Ndegwa Auctioneers (2005)eKLR, stated that;-The main objective of paragraph 4 is clear. It is intended to provide value or the basis of which the auctioneers 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 he 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”. 21.In Co-operative Bank of Kenya Ltd Vs Joefrick N. Muinde t/a Kimu Auctioneers (2019) eKLR, The court stated as follows:-“On the bill itself my finding is that the same was not drawn to scale and that the trial magistrate erred in allowing items not provided for. The Auctioneers’ charges are provided for at Part 11 of the Fourth schedule. That schedule does not provide for commission on proclamation, service of proclamation and Investigations and the same should not have been allowed.Disbursement, postage, stationery and telephone are payable under item 4 of the schedule and ought to have been confirmed to what was actually spent or expenses incurred but that was not the case. Preparation of the auctioneers Bill of costs, commissioning, filing the same, filling review of service and attending court for assessment of the costs all of which are itemized in the bill and were allowed by the trial court are also not provided for”. 22.The court went further to state that:-I would also agree with the applicant’s submissions that even on the items allowable in the schedule some of the amounts claimed were not pegged on any known law, the basis of such fees having been settled by the Court of Appeal in the case of National Industrial Credit (Supra) to be the value of the goods attached and not the decretal sum and in any event should have been ½ the fees as provided in item 7”. 23.In this case, the impugned Bill of costs dated 30th October, 2024 is entitled “further Auctioneers Bill of Cost for storages”. There is no other Auctioneers Bill of costs on record. The taxing officer as per her ruling dated 16th February, 2026 assessed Item 1 as presented and opined that it was drawn to scale at kshs.1,217,500/- being storage charges from 27th July 2017 upto 18th March 2024 at kshs.500 per day for 2435 days. 24.On Item 2 the commission was assessed at 20% of kshs..3,594,624/- i.e 71,892/48cts”. The commission on VAT was assessed at 16% i.e 11,505/-.In totality, the Bill was assessed at kshs.1,300,895/28 representing the applicant’s indebtedness to the respondent.Apparently, in this application and that applicant’s submission the bone of contention is actually on the storage charges (Item 1) of the Bill and the commission of 20% of kshs.3,594,024 said to be the outstanding rent arrears.Also in dispute is the 16% commission on VAT (Value Added Tax). 25.Item 1 was assessed as presented after a finding by the taxing officer that it was drawn to scale. However, the evidence that the item was drawn to scale was unavailable if not scanty to rely upon.With regard to the commission it was not shown how these were arrived at regard being given to the fourth schedule of the Auctioneers Rules. 26.It would follow therefore that the charges/fees imposed by the respondent were not supported by cogent evidence, hence unreasonable and clearly outside the statutory limits. In the circumstances, this application/appeal succeeds to the extent that the impugned Bill of Costs be reverted back for re assessment by a different taxing officer in accordance with the Auctioneers Rules, in particular the fourth schedule. The impugned ruling of the taxing officer dated 16th February 2026 is thus set aside with costs to the applicant/appellant.Ordered accordingly. DELIVERED AND DATED THIS 9TH DAY OF JUNE 2026J.R. KARANJAHJUDGE