[2023] KEHC 26481 (KLR)

Mugambi Rutere t/a Giant Auctioneers v Kimunye Tea Factory Co. Ltd (Miscellaneous Application 43 of 2022) [2023] KEHC 26481 (KLR) (13 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26481 (KLR)

Republic of Kenya

In the High Court at Embu

Miscellaneous Application 43 of 2022

LM Njuguna, J

December 13, 2023

Between

Mugambi Rutere t/a Giant Auctioneers

Applicant

and

Kimunye Tea Factory Co. Ltd

Respondent

Ruling

1. The applicant has filed chamber summons dated 10th March 2023 seeking the following orders:a.That the ruling dated 01st March 2023 be stayed/reviewed/varied and/or set aside; andb.That the auctioneer’s charges under rule 4 of the Auctioneers Rules be allowed at 2% of Kshs. 49,460,000/= (i.e. Kshs. 989,200/=) and not 2% of Kshs. 10,000,000/= (i.e. Kshs. 200,000/=) as awarded by the taxing officer;c.That the costs of this application be provided for.

2. The application is based on the following grounds:a.The applicant is dissatisfied with the ruling on the bill of costs dated 01st March 2023;b.The taxing officer erred by basing the applicant’s costs under Rule 4 of the Auctioneers charges on the amount of money indicated in the proclamation notice dated 18th October 2021 instead of the amount of money awarded by the court to the decree holder in the decree dated 08th July 2021 and the warrants of sale attachment dated 14th October 2021;c.The amount of money awarded as the decretal amount was Kshs. 49,460,000/= which ought to have formed the basis of the auctioneer’s charges under rule 4 of the Auctioneers Act and not Kshs. 10,000,000/= indicated in the proclamation as the estimated value of judgment debtor’s assets attached vide the proclamation of attachment dated 18th October 2021;d.That the amount should be taxed at Kshs. 989,200/= and not Kshs. 200,000/=; ande.The application is brought in the interest of justice and to prevent abuse of court process.

3. The respondent filed grounds of opposition dated 23rd May 2023 stating that there is no sufficient reason why the taxing master’s ruling should be reviewed. It was its argument that the taxing master was right in basing the amount on the attached goods and not the decretal sum as was found in the case of National Industrial Credit Bank Limited Vs. S.K. Ndegwa Auctioneer (2005) eKLR.

4. When the application came up for hearing, both parties placed reliance on their pleadings.

5. From the foregoing, the issue for determination is whether the auctioneer’s charges should be taxed at 2 % of the value of the attached property being Kshs. 10,000,000/= or the decretal amount of Kshs. 49,460,000/=.

6. In her ruling, the taxing master awarded Kshs. 200,000/= as fees on attachment basing the same on the value of the attached goods. She relied on the decision in National Industrial Credit Bank Limited Vs. S.K. Ndegwa Auctioneer (2005) eKLR (supra) in which the Court of Appeal sent the bill of costs back to the taxing master to be re-assessed based on the amount of the proclaimed goods as described in the proclamation instead of the decretal sum. Regarding the applicable section of the Auctioneer’s Act, it was held thus:“The values indicated in paragraph 4 of Part II of the Fourth Schedule on the basis of which the fees for attachment are assessed are no doubt obscure. Nevertheless, it is a canon of the construction of statutes, that, if possible a statute should be construed in a manner which makes it operative and that where a statutory provision has several meanings even though there is little to choose between them, the courts must decide what meaning the statute is to bear, rather than reject the provision as a nullity…….The main object of paragraph 4 is clear. 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.”

7. The interpretation of paragraph 4 of Part II of the Fourth Schedule of the Auctioneers Act was done by the Court of Appeal whose decision binds this court. In the same breadth, Order 22 rule 37 of the Civil Procedure Rules provides for attachment as follows:“37. Attachment of movable property other than agricultural produce, in possession of judgment-debtor [Order 22, rule 37. ]Where the property to be attached is movable property, other than agricultural produce, in the possession of the judgment-debtor, the attachment shall be made by actual seizure, and the attaching officer shall keep the property in his own custody, or in the custody of one of his subordinates, and shall be responsible for the due custody thereof…”

8. It is my view, and being guided by the above cited decision, the percentage shown under paragraph 4 of Part II of the Fourth Schedule of the Auctioneer’s Act should be applied to the value of the goods actually attached and/or seized, and not the decretal sum of Kshs. 49,460,000/=. In this case, the value of attached goods was Kshs. 10,000,000/=.

9. In the premises the application lacks merit and is hereby dismissed.

10. Is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 13TH DAY OF DECEMBER, 2023. L. NJUGUNAJUDGE……………………for the Applicant…………………for the Respondent