Automated Summary
Key Facts
The case involves Joseph G. Muturi T/A Muga Auctioneers & General Merchants appealing a decision by Deputy Registrar Mr. Okato, who taxed off Kshs.896,964 of their Kshs.912,739 Bill of Costs. The dispute centers on auctioneers' fees for a stayed sale under the Auctioneers Rules 1997 and 2009 Amendments. The applicant claims entitlement to 10% of the reserve price (Kshs.35,000,000) plus expenses, while the respondent argues no fees apply without an actual sale. The court identified a mix-up in paragraphs 7 and 8 of the 2009 Rules but could not correct them, staying the taxation decision pending Attorney General intervention.
Issues
- The first issue concerns the correct interpretation of paragraph 7 of the 2009 Auctioneers Rules regarding an auctioneer's entitlement to fees when a sale is stayed without being advertised or concluded. The Applicant argues he is entitled to 10% of the reserve price (Kshs.35,000,000) even though the sale was stayed by court order. The Respondent contends an auctioneer cannot claim commission without an actual sale, citing contradictions in the 2009 Rules' provisions.
- The second issue addresses the procedural validity of the appeal brought under Rule 55. The Respondent objects that the appeal is premature and defective as it was filed without first seeking the Deputy Registrar's reasons for the decision. The Applicant asserts Rule 55(5) allows direct appeals via Chamber Summons without requiring prior reasons. The Judge notes the appeal procedure under Rule 55 differs from taxation under the Advocates (Remuneration) Order.
Holdings
The court determined that the Deputy Registrar erred in applying the Auctioneers Rules by interchanging paragraphs 7 and 8 of Part II of the Fourth Schedule, which govern fees for stayed/postponed sales and livestock attachments. The court concluded it could not correct statutory errors and directed the Attorney General to rectify the provisions. Pending correction, the taxation decision of 17th December 2010 was stayed.
Remedies
- The Ruling shall also be served on the Registrar of the High Court for information and circulation as appropriate, and on the Secretary to the Auctioneers Board for appropriate follow up.
- The court directs that a certified copy of this Ruling be served upon the Honourable Attorney General for the correction of the interchanged provisions, namely paragraphs 7 and 8 of Part II of the Fourth Schedule of the Auctioneers' Rules, as amended under Legal Notice No. 144 of 2009.
- Pending the correction, the decision in the taxation issued on 17th December 2010 is and shall remain stayed.
Legal Principles
- The court applied the principle of judicial review to assess whether the Deputy Registrar's decision to tax off the auctioneer's fees was ultra vires or contrary to the Auctioneers Rules 1997 and the 2009 amendments. The ruling emphasized the need for the Registrar to properly interpret and apply statutory provisions when assessing fees.
- The judge interpreted the Auctioneers Rules using a purposive approach, concluding that the 2009 amendment intended to expand auctioneers' entitlement to fees in abortive sales, despite apparent contradictions between paragraphs 7 and 8 of Part II of the Fourth Schedule.
Cited Statute
- Auctioneers Rules 1997
- Auctioneers (Amendment) Rules 2009
Judge Name
M.G. Mugo
Passage Text
- It seems to me that the Deputy Registrar abdicated his responsibility and exercised his discretion without due consideration of the principles governing taxation as provided for under the Auctioneers Act and Rules.
- The applicant is aggrieved by the decision of the Deputy Registrar wherein a sum of Kshs.896,964/- of the Applicant's Bill of Costs was taxed off, allowing only Kshs.15,775/- of the total amount of Kshs.912,739/- presented under the bill. In his affidavit, the Applicant depones that the bill was properly drawn and presented under Part II of the 4th Schedule of the 2009 Revised Edition of the Auctioneers Rules which, under paragraph 7, provides the scale of auctioneers charges where an auction aborts, as was the case herein.
- I direct that a certified copy of this Ruling be served upon the Honourable Attorney General for the correction of the interchanged provisions, namely paragraphs 7 and 8 of Part II of the Fourth Schedule of the Auctioneers' Rules, as amended under Legal Notice No. 144 of 2009. The Ruling shall also be served on the Registrar of the High Court for information and circulation as appropriate, and on the Secretary to the Auctioneers Board for appropriate follow up. Pending the correction, the decision in the taxation issued on 17th December 2010 is and shall remain stayed.