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Court of AppealPartially AllowedCivil Appeal No. 138 of 2018

Mistry Valji Naran Mulji v Ezekiel Kiminza t/a Autoland Auctioneers [2019] KECA 651 (KLR)

Court of Appeal
28 May 2019
AVAlnashir VisramWKW. KaranjaMartha Karambu KoomeM. K. Koome
2,137 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal confirmed an auctioneer's certificate of costs cannot be executed until a court adopts it as a decree, and late filings cannot be saved by Article 159.

What this practically means

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Executive summary

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The appellant, the decree-holder's judgment debtor in HCCC No. 84 of 2005, challenged a High Court ruling striking out his application (styled a 'Reference') against the Deputy Registrar's taxation of an auctioneer's Bill of Costs which had reduced the respondent auctioneer's fees from Kshs 6,841,602 to Kshs 4,103,445. Before the High Court, the respondent had objected that the application was incompetent: it was filed out of time and without leave contrary to Rule 55(5) of the Auctioneers Rules, which allows 7 days to file a memorandum of appeal, and a 'Reference' is an unknown procedure for challenging an Auctioneer's Bill of Costs. Yano, J struck out the application, holding the prescribed procedure and time limits mandatory and going to jurisdiction. The Court of Appeal identified two issues. First, it accepted the High Court's finding on competence: counsel conceded the application was out of time and without leave, and the court held that such a defect goes to the root of the application and cannot be cured by Article 159(2)(d) of the Constitution or Order 51 Rule 10(2) of the Civil Procedure Rules. Second, however, it held that the auctioneer's certificate of costs was not ripe for execution: though no fresh suit was needed, the certificate had to be adopted as a decree of the court before execution. Allowing the appeal in part, the Court set aside the High Court ruling, disallowed the prayer for leave to appeal out of time but permitted the appellant to move the High Court afresh for extension of time, and ordered each party to bear its own costs of the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether an auctioneer's certificate of costs must be adopted as a decree/judgment of the court before execution can issue
  2. 2.Whether the appellant's application styled a 'Reference', filed out of time and without leave, was competent despite Article 159(2)(d) of the Constitution and Order 51 Rule 10(2) of the Civil Procedure Rules

Key legal issues

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01

Executability of an auctioneer's certificate of costs

Holding

The certificate of costs was not ripe for execution; it had to be adopted as a decree of the court before execution

Reasoning

The court held that although a fresh suit for adoption was unnecessary, the certificate of costs must be adopted as a decree before execution. The respondent's attachment/proclamation of the appellant's goods was therefore premature. This underlay the setting aside of the High Court ruling, since the amount had been deposited in a joint account on the basis of an unadopted certificate.

p. 3
02

Effect of filing out of time and without leave notwithstanding Article 159(2)(d)

Holding

The appellant's application filed out of time and without leave was incompetent; Article 159(2)(d) and Order 51 Rule 10(2) could not cure it

Reasoning

Counsel conceded the application was filed out of time and without leave. The court, adopting 'a plethora of decisions of this Court', held this was a substantive, not merely procedural, defect going to the root of the application and to jurisdiction. The High Court judge therefore correctly applied the law and could not be faulted on that ground, though the ruling was set aside on the execution issue.

p. 3

Legal principles established

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  • An auctioneer's certificate of costs is not executable unless and until it has been adopted as a decree of the court
  • Filing a suit or application out of time and without leave to extend time goes to the root of the suit/application and cannot be cured by Article 159(2)(d) of the Constitution or Order 51 Rule 10(2) of the Civil Procedure Rules

Court orders

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  1. 1.Appeal allowed in part to the extent that prayers 1 and 2 are allowed
  2. 2.The Ruling and order made on 6th November, 2018 (the High Court ruling) set aside
  3. 3.Prayer No. 3 for leave to appeal out of time disallowed as not properly before the court
  4. 4.Appellant at liberty to move the High Court for extension of time in the proper manner
  5. 5.Each party to bear its own costs of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AV
majority
WK
majority
Martha Karambu Koome
M. K. KoomeJA
Currently serving
majority
On appeal from
High Court of Kenya at Mombasa
Misc. Application Case No. 21 of 2016
Jurisdiction invoked
First appellate jurisdiction over the High Court (ruling in Misc. Application No. 21 of 2016)

Relief refused

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Prayer No. 3 - leave to appeal out of time

Not properly before the court; appellant may seek extension of time in the proper manner

p. 3

Costs

Each party bears its own costs of the appeal

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

For the foregoing reasons, this appeal succeeds in part to the extent that prayers 1 and 2 are allowed. The Ruling and order made on 6th November, 2018 is hereby set aside.
p. 3Disposition - appeal partially allowed and High Court ruling set aside
The prayer for leave to appeal out of time (prayer No.3) is not properly before the court and the same is hereby disallowed. The appellant is nonetheless at liberty to move the High Court for extension of time in the proper manner.
p. 3Leave to appeal out of time refused; liberty to apply afresh
In view of the circumstances of this appeal and the reasons we have given above, the order that commends itself to us is that each party bears its costs of the appeal.
p. 3Costs order
it was definitely necessary for the same to be adopted as a decree of the court before execution could be carried out.
p. 3Executability of auctioneer's certificate of costs
Filing a suit or application out of time and without leave of Court to extend time goes to the root of the suit/application and is not merely a procedural defect. It cannot be a technicality that could be cured by the provisions of Article 159 2 (d) of the Constitution and Order 51 Rule 10(2) of the Civil Procedure Rules.
p. 3Limits of Article 159(2)(d) over-riding technicality doctrine

Issues in the judgment

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minor

The judgment elsewhere states the impugned High Court ruling was made on 6th November 2017, but the final orders describe it as the ruling made on 6th November 2018

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mistry Valji Naran Mulji v Ezekiel Kiminza t/a Autoland Auctioneers [2019] KECA 651 (KLR)", Case Analysis (2019). Civil Appeal No. 138 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/651/eng@2019-05-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.