OSTRICH LION AUTIONEERS v PAUL MUCHIRI [2007] eKLR

Key Facts

Issues

• The court found that the deputy registrar erred in calculating the Auctioneer's fees based on the decretal sum (KShs. 94,200/00) rather than the value of the attached property. Citing Nairobi Civil Appeal No. 195 of 2004, it clarified that auctioneer fees must be assessed based on the value of the property repossessed, not the decretal amount, as Schedule IV of the Auctioneers Rules does not specify a basis for calculation.
• The court determined that the Auctioneer's bill of costs was improperly filed in the High Court, as disputes over auctioneer fees within the monetary jurisdiction of a subordinate court must first be assessed there or before the Auctioneers Licensing Board under Rule 55(3) of the Auctioneers Rules, 1997. The deputy registrar lacked jurisdiction to tax the bill in the High Court, leading to its invalidation.

Holdings

• The court ordered the assessment of the Auctioneer's fees on 16th June 2006 to be set aside, the bill of costs filed on 21st September 2005 to be struck out, and the Judgment-Debtor to have costs of the application.
• The court determined that the Auctioneer's bill of costs was improperly filed in the High Court and should have been submitted to the subordinate court or the Auctioneers Licensing Board, as per the Auctioneers Rules, 1997. The deputy registrar had no jurisdiction to tax the bill.
• The court found that the Auctioneer's fees were incorrectly calculated based on the decretal sum rather than the value of the attached property, following the precedent set in Nairobi Civil Appeal No. 195 of 2004 (National Industrial Credit Bank Limited vs. S. K. Ndegwa Auctioneer).

Remedies

• The Auctioneer is directed to file his bill of costs either before the subordinate court concerned or before the Auctioneers Licensing Board.
• The court set aside the assessment of the Auctioneer's fees done on 16th June 2006.
• The Auctioneer's bill of costs filed on 21st September 2005 was struck out.
• The Judgment-Debtor was awarded the costs of this application.

Legal Principles

• The court ruled that disputes over auctioneer fees must be filed in the correct jurisdiction. Under Rule 55(2) and (3) of the Auctioneers Rules, 1997, such bills should be lodged before the subordinate court handling the original proceedings (Senior Principal Magistrate's Court, Kiambu) or the Auctioneers Licensing Board, not the High Court. The deputy registrar lacked jurisdiction to tax the bill improperly filed in the High Court.
• The court established that auctioneer fees should be calculated based on the value of the attached property, not the decretal sum. This aligns with the Court of Appeal's decision in Nairobi Civil Appeal No. 195 of 2004, which clarified the basis for fee assessment under Schedule IV of the Auctioneers Rules.

Precedent Name

Cited Statute

• Civil Procedure Act, Cap 21
• Auctioneers Rules, 1997

Judge Name

Passage Text

• the deputy registrar herein erred on principle when assessing the Auctioneer's fees. This would be a sufficient reason to set aside the taxation.
• In the event, having found that the Auctioneer's bill of costs was wrongly filed in this court, I will allow this application. The assessment... is hereby set aside.
• It follows that the Auctioneer's bill of costs was wrongly lodged in this court and was thus incompetent. The deputy registrar had no jurisdiction to tax it. I so hold.