Fice MERCY NJOKI KARONGO P.0. BOX 45564 - 00100 NAIROBI, KENYA 1p: 8677 ND: BUS cept 6 CASH DEPOSIT ‘Approved Amount: '520.00 KsH ‘418087******9180 fark tefertce ty Sno ‘thorizition cote: Sire Feszonse cote (host) o Fespose cae, (ise): o Date Gst-airbi): 3605/0 msn. Gate (terial): "360624 Mest ‘CONT UBER: TAOS Mea: KO ON STATE LAW OFFICE. REVE Univ. EMV POS 1.0.0/TITP 1,.0/682 Ge sia)REPUBLIC OF KENYA AUCTIONEERS LICENSING BOARD (AUCTIONEERS ACT, 1996) MISCELLANEOUS CAUSE NUMBER 83 OF. JACQUILINE NJERU T/A. JAVISAPA ENTERPRISES LIMITED COMPLAINANT ‘VERSUS HENRY PAUL KURIA T/A. WESTMINSTER MERCHANTS AUCTIONEERS. COMPLAINANT'S SUBMISSIONS duction. 1. Honourable members of the Board, the matter before you is a complaint against the Auctioneer/Respondent for acting in contravention of the provisions of Auctioneers Act Cap 526 Laws of Kenya and abusing of Court Orders and the Court process to overcharge and extort the Complainant contrary to Rule 55(2) of the Auctioneers Rules, 1997. It is a regrettable situation whereby an Auctioneer obtains Court Orders to recover the decretal sum for the Decree Holder but acts contrary to the expected code of conduct and the governing Law and Statutes. 2. The Auctioneer herein obtained instructions from the Complainant's previous Advocates, on 05.01.2023, to obtain Warrants of Attachment and Sale and thereafter to sell the attached suit property being MAVOKO TOWN BLOCK 3/2104 as per the provisions and procedure stipulated in the Auctioneers Rules 1997 but is claiming exorbitant Auctioneers fees contrary to the prescribed fees as per the Auctioneers Act Cap 526 Laws of Kenya. Complainant's Case 3. On 06.06.2023, the High Court at Machakos HCCC No. 5 of 2018 javisapa Enterprises Limited v Neema Trust Company Limited issued Warrants of Attachment and Sale to the Auctioneer/Respondent herein.4. The Complainant instructed independent Valuers known as Royal Valuers Limited who valued the suit property as follows: - a. Open Market Value: Kshs. 220,000,000/= Kshs. 187,000,000, 5. On 04.08.2023, the Auctioneer/ Respondent wrote to the Complainant's then Advocates on record that the suit property had been sold through public auction to User Care Limited at Kshs. 100,000,000/ bidder in a purported auction held on 02.08.2023 and attached a Memorandum of Sale dated 02.08.2023 to that effect. vho was the highest o was the highest 6. Prior to this alleged successful sale, the Respondent/ Auctioneer had written to the Complainant's previous Advocates stating that the suit property has been successfully sold to Nelly Wanjiku Mbogo for Kshs. 80,000,000/= and to which a Memorandum of Sale was attached for the said transaction dated 10.06.2023 and which transaction actually never took place and which is irregular on the face of the Law. 7. The Auctioneer/ Respondent now claims Auctioneers fees to the tune of Kshs. 15,000,000/= out of which Kshs. 10,000,000/= is allegedly brokers fees which should not be charged upon the Complainant as the sale arose from a public auction, and which amount is in fact an overcharge on the face of the Fourth Schedule of the Auctioneers Act Cap 526 Laws of Kenya. 8. The Auctioneer/ Respondent alleges in his Replying Affidavit avers that on 05.01.2023, he received instructions from the Complainant's previous Advocate to s MAVOKO TOWN BLOCK 3/2104 by way of pi auction pursuant to a Court Decree issued in Machakos HCCC No. 5 of 2018 Javisapa Enterprises Limited v Neema Trust Company Limited. the property kn 9. The Plaintiffs Auctioneer/ Respondent alleges that on 04.01.2023, he received similar instructions from the Complainant personally which alleged consent/ agreement was not recorded /filed before the Honourable Court so that the same would be adopted as an Order of the Court10. Thereafter, on 06.06.2023, the High Court at Machakos issued Warrants of Attachment and Sale to the Auctioneer/ Respondent, pursuant to instructions from both the Complainant and the Complainant's Advocates on record then. The Auctioneer, sspondent alleges io have performed his mandaie of having the suit property valued, advertised and re-advertised in the People Daily Newspaper but does not disclose that the High Court at Machakos in HCCC No. 5 of 2018 Javisapa Enterprises Limited v Neema Trust Company Limited had directed that the same be a the Nation Newspaper, out rightly contravening the directions of the Court and acting in contravention of the provisions of Section 21 of the Auctioneers Act, Cap 526 Laws of Kenya and Rule 16 of the Auctioneers Rules 1997. 12. The Auctioneer/ Respondent alleges that he sought the services of Premier Valuers who valued the suit property as follows: a) Market Value: Kshs. 88,000,000/= b) Forced Sale Market Value: Kshs. 66,000,000/= 13.'The Auctioneer/ Respondent submits that on 02.08.2023, he successfully sold the suit property to User Care Limited at Kshs. 100,000,000/=, who was the highest bidder in a public auction held on 02.08.2023 and that a Memorandum of Sale was duly executed between him and the purchaser. 14. The Auctioneer/ Respondent alleges that after a series of deliberations between. the Complainant and himself, the Complainant allegedly agreed to pay him the sum of Kshs. 15,000,000/= as the professional and disbursements fees. 15. The Auctioneer/ Respondent also alleges thai the Compiainani had previously engaged Henry Kioko Nzyuko T/A Icon Auctioneers in the matter who had charged her Kshs. 9,410,000/= as his fees, and which instructions were terminated on 13.12.2022 which allegations cannot be proven and upheld as it is not in the C Records, 16. After the alleged sale of the suit property, User Care Limited deposited the sum of One Hundred Million Kenya Shillings (Kshs. 100,000,000/=) into the Complainant's Advocate’s Account, out of which Kshs. 70,000,000/= was released to the Complainant and the balance of Kshs. 30,000,000/= is being held in an 3escrow account pending the determination of the dispute between the Advocates and the Auctioneers fees pursuant to a consent Order made on 11.12.2023 in Machakos HCCC No. 5 of 2018 Javisapa Enterprises Limited v Nema Trust Company Limited. ANALYSIS 17. The first issue for analysis is if the alleged sale of the suit property was conducted in the manner and procedure stipulated in Section 21 of the Auctioneers Act, Cap 526 Laws of Kenya and Rule 16 of the Auctioneers Rules‘1997. The successful sale through public auction being between the Auctioneer/ Respondent and User Care Limited for Kshs. 100,000,000/= on 02.08.2023 and a Memorandum of Sale attached to that effect. 18. However, the advertisement culminating to the said sale was advertised by the Auctioneer/Respondent in the People Daily Newspaper and not in the Nation Newspaper as directed by the Court, acting in contravention of the provisions of Section 21 of the Auctioneers Act, Cap 526 Laws of Kenya and Rule 16 of the Auctioneers Rules 1997. 19. The same is clearly set out by the purchaser of the suit property above mentioned, through an Affidavit claiming that the said property was advertised in the “The People Daily Newspaper’ and confirming that volved in the sale as earlier alleged by the Auctioneer/Respondent that he had sold the property to Nelly Wanjiku Mbogo for Kshs. 80,000,000/= par! 20.From the above discussion, the integrity and honesty of the Auctioneer /Respondent is highly questionable as he contradicts himself severally as to how the sale of the suit property culminated. The Auctioneer/Respondent failed to follow the procedure spelt out in Section 21 of the Auctioneers Act, Cap 526 Laws of Kenya and Rule 16 of the Auctioneers Rules 1997 in his professional capacity. 21. The second issue for analysis is that the Auctioneer/ Respondent now claims Auctioneers fees of Kshs. 15,000,000/= claiming that his fees are Kshs. 5,000,000/= and that the additional Kshs. 10,000,000/= is for payment of brokers fee in the sale which she should not be charged upon the Complainant as the sale arose from a pubiic auction and moreover, which amounis being claimed are exorbiiani as ‘compared to the prescribed fees in the Auctioneers Rules 1997.22. A closer look at the Fourth Schedule of the Auctioneers Act Cap 526 Laws of Kenya provides for prescribed fees in terms of Auctioneers Charges and specifically 2% for fees payable on sale of immovable property over Kshs. 3,000,000/=. 23. The Auctioneer/Respondent herein now claims Auctioneers fees of Kshs. 5,000,000/= and Kshs. 10,000,000/= claimed as brokers fees, against the Complainant, on the successful sale of immovable property being the MAVOKO TOWN BLOCK 3/2104 sold by Public Auction to User Care Limited for Kshs. 24. Auctioneers fees herein if calculated at the stipulated rate of 2% for fees payable on sale of immovable property over Kshs. 3,000,000/=, would ideally translate to a sum of Kshs. 2,000,000/= for the successful sale of MAVOKO TOWN BL: 3/2104, which the Auctioneer/Respondent is entitled to and not Kshs. 5,000,000/= as he claims to be Auctioneers Fees and further is not entitled to Kshs. 10,000,000/= claimed to be brokers fees as the sale arose from a public auction. 25, Moreover, the Auctioneer/Respondent claims that him and the Complainant entered into an agreement that the Complainant would pay the Auctioneer/Respondent Kshs. 15,000,000/= as Auctioneer’s fees, which agreement/consent was not recorded nor filed in the Honourable Court which means that the Court is not cognizant of the existence of the alleged agreement/consent. 26. The Complainant also believes that the Auctioneer/Respondent is attempting to defraud her by arm-twisting her to pay him Auctioneer’s fees and brokers fees of the sum of Kshs. 15,000,000/= while colluding with the Complainant's previous Advocate and which is amount clearly in exorbitant and in contravention of the provisions of the Auctioneers Act Cap 526 Laws of Kenya. 27. Further, the Auctioneer/Respondent has not until now, served the Complainant with a Bill of Costs in the matter Machakos HCCC No. 5 of 2018 Javisapa Enterprises Limited v Neema Trust Company Limited and which is pending in the High Court at Machakos.28. Rule 55(2) of the Auctioneers Rules 1997 provide for Fees and disbursements payable to an auctioneer: “(2) Where a dispute arises as to the amount of fees payable to an auctioneer — (a) in proceedings before the High Court; or (b) 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 defined in the Civil Procedure Rules (Cap. 21, Sub. Leg.), may on the application of any party to the dispute assess the fee payable.” 29, At this juncture, we take a look at the Ruling by Justice Nzioki wa Makau in the case Miscellaneous Cause No. E072 of 2021; Endmor Steel Millers Limited v Vincent Ondari Ong’ayo; Geoffrey Kang'ethe t/a Kang'ethe Enterprises Auctioneers Interested party) [2021] eKLR whereby he held that: - “The present application is therefore misplaced as all the Auctioneer has to do is tax the costs as these are seemingly not agreed nor did they form the consent entered into by the Appellant and the Respondent herein. As such the application is unmerited and is dismissed albeit with no order as to costs.” 30. With reference to Rule 55(2) of the Auctioneers Rules 1997 and J. Nzioki wa Makau’s ruling, the issue of the Auctioneer/Respondent claiming Kshs. 15,000,000/= as Auctioneers and brokers fees can only be settled through him filing a Bill of Costs in Machakos HCCC No. 5 of 2018 Javisapa Enterprises Limited v Nema Trust Company Limited for assessment and iaxation by the Regisirar of the High Court as there was no recorded nor filed consent in Court to adopt the exorbitant fees he now claims. 31. The fourth issue for analysis is the issue of the Auctioneer/Respondent filing another suit Milimani MCCC/E183/2024 against the Complainant claiming the Auctioneers fees of Kshs. 15,000,000/= yet the main suit being Machakos HCCC No. 5 of 2018 Javisapa Enterprises Limited v Neema Trust Company Limited is yet to be determined and in which the Auctioneer/ Respondent has not filed a Bill of Costs, clearly abusing the Court process. CONCLUSION32. Honourable Members of the Board, the Fourth Schedule of the Auctioneers Act Cap 526 Laws of Kenya is very clear that the amount payable for sale of immovable property over Kshs. 3,000,000/= is calculated at 2%; which translates to Kshs. 2,000,000/= from the successful sale of the suit property herein being MAVOKO TOWN BLOCK 3/2104 and that the Auctioneer/Respondentis entitled to and not the exorbitant sum of Kshs. 15,000,000/= he claims as Auctioneers and Brokers Fees. 33. The Claimant strongly believes that the Auctioneer/Respondent should not charge the Complainant Kshs. 10,000,000/= as brokers fees as the sale of the suit property was as a result of a public auction hence no need to charge brokers fees as the Auctioneer/ Respondent claims. 34, The Claimant strongly believes that the Auctioneer/Respondent should also file a Bill of Costs for the controversial Auctioneers fees after the final determination of Machakos HCCC No. 5 of 2018 Javisapa Enterprises Limited » Neema Trust Company Limited in order to have the said amounts assessed and taxed appropriately by the Court. 35. The Complainant further believes that the action by the Auctioneer/Respondent of filing another suit Milimani MCCC/E183/2024 against the Complainant am ruse of the Court Process as he only has forum in Machakos High Court regarding his alleged claim of Auctioneers fees payable by the Complainant herein as per the provisions of Rule 55(2) of the Auctioneers Rules 1997. nts to an abi 36. With regards to these submissions we believe that the Claimant's complaint against the Auctioneer/Respondent should succeed as prayed. 37. Our humble prayer is that the Auctioneer’s license should therefore be revoked on account of his unbecoming and unprofessional conduct propelled by unsurmountable greed. DATED at NAIROBI this .. 2024 KIVU 3A & CO. ADVOCATES COMPLAINANTDRAWN & FILED B’ IMUGA & CO. ADVOCATES, REINS! LAZA, 1ST FLOOR, TAIFA ROAD, ‘00100, Emait kivuvaadvocates@gmail.com , Tel: 020 22 14 113; 0111243941 TO BE SERVED UPON MUREITHI BARAGU & CO ADVOCATES HUGHES BUILDING, 4™ FLOOR, ROOM 204C, MUINDI MBINGU STREET, P.O BOX 102077-00101, NAIROBI Email: mureithibaraguadvocates@gmail.com23+ Gretl Millers Limited v Vincent Ondari Ong'ayo; Geotrey Kang'ethe t/a Kang'ethe Enterprises Auctioneers Interested party) [2021] ¢ gIKENYA LAW Roving maine awe REPUBLIC OF KENYA, IN THE EMPLOYMENT & LABOUR RELATIONS COURT OF KENYA ATS) 08! MISCELLANEOUS CAUSE NO. E072 OF 2021 ENDMOR STEEL MILLERS LIMITED eons APPELLANT A VERSUS VINCENT ONDARI ONG’AYO cro GEOFFREY KANG'ETHE Us KANG'ETHE, ENTERPRISES AUCTIONEERS .esenonsees-PROPOSED INTERESTED PARTY ‘RULING |. The Application before me isthe Interested Party's Notice of Motion Application dated 22" June 2021 secking the following orders: 1) Spent 2) THAT the Auctionser hersin be granted leave to appear inthis suit as an interested party. 3). THAT dhe Appellant and the Respondent herein be ordered to pay the Auctioneers fees and costs or in the altemative: 4) THAT the amount invoiced by the Auctioneer be deposited in court pending the taxation of the bill and consequently the motor ‘ehicle registration number KBA 602 M Isuzu Truck be released tothe Appellant: 5) THAT the Appellant do meet the cost of the Application tobe calculated as per the Advocates Remuneration Order oF as agreed. 2. ‘The Proposed Interested Party asserts he attached the suit Motor Vehicle Registration Number KBA 602M, make Isuzu Truck ‘which is the subject of this Application following warrants of attachment and sale issued in Mavoko Chief Magistrate's Court ‘MEL Suit No. 115 of 2019. The Proposed Interested Party asserts thatthe Applicant herein resisted attachment to an extent that he lnad to get a police assisiance order after tne Appiicani issued cheques tothe Decree holder (Respondent herein) and tne Interested Party which were retuned unpaid. The Proposed Interested Party asserts the whole exercise became exicemely expensive and the Interested Party issued an invoice dated 30® April 2021 to the Applicant's Advocates. On 18° May 2021 the Applicant and the Respondent entered into a Consent which was adopted by the Court. The Proposed Interested Party asserts the said consent was centered into without the involvement of the Interested Party herein and the same was silent on who is to pay the Auctioneers ‘fees/charges, The said consent was also silent about release of the subject motar vehicle ‘p-tnhenyalew.org- Page 1/4del Millers Liited v Vincent Ondari Ongayo; Geofrey Kang‘ethe va Kang'the Enterprises Auctioneers interested party [2021] ¢ 3 The Applicant ase thatthe pares herein led consent date 18% May 2021 which was adapted in court on 22 Fly 2021.1 ‘sets the consent as duly served upon the proposed interested party via email and acknowledged by the proposed jaerested party lis aseted thatthe consent orders were filland final and tha the thrown aay costs herein were pai andthe primary uit Mayoko CMEL No, 115 of 2019 has since been reopened for hearing on mers ‘The Applicant asserts that pursiart othe ai consent the proposed interes party Was reqied 0 engage the parties herein on reasonable anotnt paybe or alternatively draw bis bil ofcoutsfor tan. ‘4. The Proposed Interested Party (hereinaler ‘Auctioneer’ and the Applicant (hereinafter "the Appellant’ filed submissions. Tn his submissions the Auctioneer submits thatthe issues for determination inthis Application: are 14 Whether the Auctioneer should be enjoined in this suit as an interested party. '. Whether the Appellant and the Respondent herein should pay the Auctionce’ fees and costs or whether the Auctionec’s charges should be deposited in Court. «. Who is to bear the costs of this Application” As tothe ies ae to wh enjoined i ued that The Black's Law Dictionary defines an intrested party a8 "A purty who has a recognisable stake (and therefore standing) in the mater." also defines a "Necessary Party" as "a party who being closely connected to a lawsuit should be inchided in the case if feasible but hose absence will nt require dismissal of proceedings." Further, itis submited that Rules 2 and 7(2) of The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 define an interested party as follows: "interested party" means a person or entity that has an identifiable stake ar legal interest a duty in the proceedings before the court ‘ur is nota party to the proceedings or may not be direct involved in the litigation.” He submit that Rule 72) provides that ‘A court may on it own motion join any interested party to the proceedings before it.The broad principles which should govern «disposal ofan application fr enjoinment aretha the court can, ether onan application made by any interested party or on is own ‘motion direct any person as party to be enjoined in the proceedings. ‘The Auctionser's submits his presence before the court is necessary as this will enable the Court to completely adjudicate upon and settle al the issues in the suit herein. The Auctioneer submits the issue of auctioneers costs will be adjudicated upon and that he ‘stands to suffer damages if not enjoined as his fees and charges have not been paid 5. Aso whther the Appellant andthe Responen: herein should py the Auctioneers fes and cost of wheter he Autone' charges should be deposited in Court. The Anctioneer submits thatthe Appellant ‘May 202K and the same was adopted as an order of the Court. He submits that it was a term ofthe Consent thatthe Auctioneer’ casts to be agreed upon or be taxed and that on 30* April 2021 the Auctioneer sent a fee note to the Respondent's advocates in ‘ich all charges were tabulated. He submis that iti important to note thet daring the attachment process, the Appellat resisted. ‘tachment causing the Auctioneer to get an order for Police assistance aftcr the Appellant issued cheques to the dectee holder and Auctioneer which were retumed unpaid. He submits that Rule 7 of the Auctioneers Rules, 1997 provides as follows: A debror ‘shall pay the charges ofthe auctioneer unless () that debtor cannot be found: or he has no goods upon which execution can be levied: or (c) the sale proceeds are insufficient to cover the charges in which cases the ereditor shal pay the charges or the deficiency thereof. ‘As to who isto bear the costs ofthis Application, the Auctioneer submits thatthe motor vehicle having being released, both the ‘Appellant and the Respondent herein ough to be ordered to jointly deposit the amount. It is worth nothing that an auctioneer as 2 ‘court officer is independent ofthe litigation and should therefore be insulated by the court from extreme losses lke the onc incurred by the Auctioneer inerein. ii suits tha both the Appellant and the Respondent should bear the costs of this Application xs wel. 6 The Appetlant submits that it is worth noting that this application was not certified urgent and the Auctioneer never bothered to ‘eck leave athe earliest opportunity since May 2021 when he became aware of the proceedings, for leave lo come on record. The Appellant submits he waited until the mater was concluded in order to move the cour. The Appellart submits there is also no evidence of service of the instant application by the Auctioneer to the Respondent, who isthe instructing party. On the issue of ata kanyataw org - Page 2/4#1 Millers Limited v Vincent Ondari Ong'ayo; Geoffrey Kang'ethe Ua Kangethe Enterprises Auctioneers Interested party) [2021] ¢ Jjoinder of «party, the Appellant submits that Order 1 Rule 10(2) ofthe Civil Procedure Rules provides that: "The court may at any stage ofthe proceedings, either upon or without the application of ether party, and on such terms as may ‘appear to the court tobe just, order that the name of any party improperly joined. whether as plaintiff or defendant be struck out, ‘rd that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the ‘court may be necessary in order to enable the court effectually and completely to adjudicate upon and see all questions involved In the sual, be added." 7. ‘The Appellant submits thatthe same ought to have been filed when the partes herein were still prosecuting the application for leave to appeal out of time and release of the subject motor vehicle, To come to court when the parties herein have already concluded a matter is thus guilty of inordinate and unexplained delay. The Appellant submits that prayer 2 and 4 of the instant application have been overtaken by events since the subject motor vehicle was released to the Appellant and cause concluded amd. therefore thee is no suit. The Appellant submits it and the Respondent herein are equally awaiting a date foe directions in the primary sui, MAVOKO CMEL NO. 5 OF 2019 VINCENT ONDARI ONG’AYO VERSUS ENDMOR STEEL MILLERS. LIMITED pursuant to 8 consect dated 18° May 2021 and adopted in court on 22™ July 2021 (months after participation by the proposed interested party). It submits thatthe suid consent order was full and final marking this miscellaneous cause as closed. Ik submits that the thrown away costs were paid and the primary suit re-opened. The Appellant submits the Auctioneer chose not to appear in court winen the same came up in court even for adoption of the consent despite having been served with the same and duly ‘tf. tis submited that it would be totally unfair to condemn the Appoint who isnot the instructing party the exaggercted and + crorbitant amount as pe dhe invoice atached by the Appellant. ‘The Appellant cited the case of Lillan Walrimu Ngatho & Another y Moki Savings Co-operative Society Limited & Another [2014] eKLR where the court in dismissing an application filed by a party who was guilty of laches in filing a joinder application held as follows: The provisions of Order 1 Rule 10(2) state that joinder of a party can be made “at any siage of the proceedings”. “Proceedings” are defined in Black's Law Dictionary Ninth Edition at page 1324 as “the regular and orderly progression of @ Jessi including all acis and events between the time of commencement and the entry of judgment”. A party can therefore only be Joined toa suit at any time during the pendency ofthe suit, but not after the same has been concluded. This finding is premised on the basis that the purpose for joinde isto enable the court effectually and completely adjudicate upon and settle all questions Involve in asuit. Ii therefire of no use a party seeks toe joined when the court has already made its findings on the issues arising. ‘bear the costs oftheir respective Notices of Mation "(emphasis theirs) 9. The Appellant submits that theres o dispute tha tbe Auetincer was instructed by the Respondct herein wo execu agains the ‘Amellnt herein. Ii ako not digpoted that the Auctioneer procsimed the Appellant's motor vehicle. The Appellant sibs the set precedence is that the Auctioneer could ave then recovered the fees from the judgment debtor had the sale of the atached ‘property went throagh but since the same was stopped pursuant to cour order issued herein then the circumstances are thatthe insructing party (who isthe principal) is ible to meet the avtioner’s costs far nsrctions given out Furher, tix submited, iat lle Auctioneer es ail for txation the sre ought o be waxed against the Auctioneers insructing lien, the Respondent in the suit and not the Appellan. In support of the foregoing submissions, the Appelian’ relied on the case of Franc Moatha Macharia T/A Freeman Auctioneers Services» Tata Africa Holdings (Kenya) Limited [2019] €KLR where the court vs faced with a similar application of who is pay the auctoncer’sfes/charges, assesment ofthe charges and costs of the pplication. The Appellant submit that similarly, in the ease of Kenya Ot! Company Limited» Jovan H. Karluki T/A Moran Auctioneers [2020] eKLR in an application which only sought leave Wo appeal ou of time against he decision ofthe taxing master ‘ut also addressed the pertinent issue of who is Hable to meet the auctioneers foes and costs, Onkwany J. held as follows 14, Be that as it may this court is still minded, inthe interest of justice, to address the pertinent question of who should pay the ‘ptr honyalew og - Page 34_1 Millers Limited v Vincent Ondari Ong'ayo; Geoffrey Kang'ethe tls Kang'ethe Enterprises Auctioneers interested party) [2021] « auctioneers fes inthis case. The answer to this question coud have been found nthe ring in respect to the application dated 25" March 2015 which was however withdrawn By the Auctioneer on 28 May 2018. 15. Inthe impugned rating of 25° May 2019, the Taxing Officer sted a follows om the subject ofthe port lib o pay the ucioners cost: “From the proceedings the actoneer could have recovered e fos rom the debtor the snle went through He ‘sentido fer fr work dome. The sale as called off meaning tha the Instructing arty wat fo pa fr the faiacos given is submitted tht the Auctionser in hie submiss to when a debior should mez the autionecrs costs thai wha thee isa Inwful attachment and sale is seceaflunlss the said debior cannot be found, he has no goods upon which execution can be levied or the sale proceeds are insufficient to cover the charges. The Appellant thus urged the Honourable Court to exercise its discretion judicially and by dismissing the Auctioneer’s roti of motion spplication dated 22% June 2021 with costs to tbe Appellant 10. This notin doubt that the Auctioneer atached the suit Motor Vehicle Registration Number KBA 602M. suzu Truck which is the subject of this Applicaton following warrants of attachment and sal ised in CMEL Suit No. 115 of 2019 at Mavoko Law Courts. Its also notin donb that a consent was entered and the motor vebicle subsequently released by order of this Court. The ‘fectuat position is that the Respondent and Appellant herein are parties in the primary suit and the Auctioneer Wis agent ofthe ‘Respondent herein when he atached the motor vehicle owned by the Appellant. As the Court gave directions onthe costs, it would be imperative that the Auctioneer actualizes the determination of the Court which was othe effec that uctionee's cost be agreed ‘or taxed, The present application is therefore misplaced as all the Auctioncer has to do is tax the costs as these ae seemingly not agreed nor di they form the consent entered into bythe Appellant and the Respondent herein. As such the application is unmerited and is dismissed albeit with no order ast costs tis so ordered. DATED AND DELIVERED AT NAIROBI THIS 14TH DAY OF DECEMBER 2021 NZIOKI WA MAKAU sEDGE @RRASs vse ne mg mca anna an San eed aan tran xsaaon-ShareAle 49 ntrana tetas fe adi epions cntied fk ae fe ule corn ae ae ee rom ay exp ears, Read or Prisey Poe Dslamar ‘tpt kanyatou.org Page 44