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ELRCPartially AllowedNot stated on face of judgment (application dated 1st October 2024)

Ramogi v Great Lakes University Kisumu; Odhiambo t/a Jenks Auctioneers (Interested Party) (Cause 2 of 2022) [2025] KEELRC 437 (KLR)

Environment and Land Court (Court executing its decree, Kisumu)
18 February 2025
NMNzioki wa Makau
2,089 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court set aside an irregular auction because the auctioneer broke Auctioneers Act rules, and ordered fees returned and disciplinary referral.

What this practically means

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Executive summary

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Great Lakes University, the Judgment Debtor, moved the court by application dated 1st October 2024 seeking a true account of the auction of motor vehicle KBJ 277W and of monies paid toward the decree. It asserted it had paid Kshs. 830,000/- of the decretal sum and taxed costs of Kshs. 1,994,896/-, and that the Interested Party auctioneer had sold the vehicle valued at Kshs. 990,000/- without rendering accounts as required by section 21 of the Auctioneers Act, then attached an Isuzu Bus KBJ 852E irregularly. The Decree Holder acknowledged receiving Kshs. 560,000/- net of auctioneer costs and justified the second attachment for the outstanding Kshs. 604,986/-. The Interested Party argued the court was functus officio following the judgment of 2nd November 2022, relying on Telkom Kenya v John Ochanda and Jasbir Singh Rai, and that it answered only to the Decree Holder. The court held that execution remains a function of the court and auctioneers are officers of the court, so it was not functus officio. It found multiple breaches: failure to indicate a reserve price contrary to section 21(3), advertisement 40 days after attachment contrary to Rule 12(f), remittance three months after sale contrary to section 22(2), and no receipt under Rule 18(2). The execution was set aside, the auctioneer was referred to the Auctioneers Board for discipline, ordered to surrender all fees recovered including Kshs. 210,000/- auctioneers fees, and the Decree Holder and Interested Party were jointly and severally condemned to costs.

Questions the Court framed

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

  1. 1.Whether the auctioneer followed the law in execution of the decree.
  2. 2.Whether the application is merited.

Key legal issues

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01

Whether the court is functus officio over execution of its own decree

Holding

The court retains supervisory jurisdiction over execution; functus officio applies only to the merits of the decision

Reasoning

Execution of court decrees and warrants remains a function of the Court. Auctioneers execute decrees as officers of the court pursuant to court-issued warrants. The court remains involved through warrants, notices to show cause and stay proceedings. Only the merits of the delivered judgment cannot be revisited, so the functus officio plea fails.

p. 4
02

Whether the auctioneer complied with the Auctioneers Act and Rules

Holding

No - multiple breaches: failure to indicate reserve price, late advertisement (40 days after attachment), late remittance of proceeds (3 months after sale), and no receipt for sale of movable property

Reasoning

The auctioneer failed to indicate whether the sale of KBJ 277W was subject to a reserve price contrary to section 21(3) of the Auctioneers Act; advertised the Isuzu Bus 40 days after attachment contrary to Rule 12(f); remitted proceeds three months after sale contrary to section 22(2); and produced no receipt as required by Rule 18(2).

p. 4
03

What remedy follows from the execution breaches

Holding

The execution is set aside; the auctioneer's fees are to be surrendered to the Decree Holder and the auctioneer referred to the Auctioneers Board for discipline

Reasoning

Given the myriad breaches, the execution was irregular and is set aside. The court found the auctioneer may have had an incentive to keep the decree unrealised to continue earning Kshs. 210,000 per attachment, warranting referral to the Auctioneers Board and forfeiture of fees recovered.

p. 4

Legal principles established

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  • A court is not functus officio at the execution stage; execution of decrees remains a function of the court and auctioneers act as officers of the court
  • Auctioneers must strictly comply with the Auctioneers Act and Auctioneers Rules, including reserve price disclosure, timely advertisement, remittance of proceeds and issuance of receipts; breaches justify setting aside execution

Court orders

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  1. 1.The execution meted out is set aside on account of myriad breaches of the law
  2. 2.The Interested Party is referred to the Auctioneers Board for discipline
  3. 3.The Interested Party must surrender all fees recovered at the sale, including Kshs. 210,000/- charged as auctioneers fees, to the Decree Holder to cover the decretal sum
  4. 4.Costs of the application to be borne jointly and severally by the Decree Holder and the Interested Party
  5. 5.A copy of the Ruling together with the Application to be forwarded to the Auctioneers Board by the Deputy Registrar for further action against the Auctioneer Mr. Kenneth Odhiambo t/a Jenks Auctioneers

The bench

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

NM
majority

Wrote the judgment

Jurisdiction invoked
Inherent execution jurisdiction of the court over decrees it issued; Auctioneers Act and Auctioneers Rules

Relief refused

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Request to review the court's order of 4th October 2024 releasing the Isuzu bus (sought by Decree Holder)

The court instead set aside the execution for breaches of the Auctioneers Act and Rules

p. 4

Costs

Costs of the application awarded against the Decree Holder and the Interested Party, to be borne jointly and severally

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.

As such, the Court is not functus oficio as far as the execution is concerned.
p. 4functus officio and supervisory jurisdiction over execution
The finding of this Court is that the execution meted out must of necessity be set aside on account of myriad breaches of the law.
p. 4setting aside irregular execution
Having failed to do the correct thing, both the Decree Holder and the Interested Party were guilty of misdeed the court will mulct them with costs of this application to be borne jointly and severally.
p. 5costs order against Decree Holder and Interested Party
A copy of this Ruling together with the Application to be forwarded to the Auctioneers Board by the Deputy Registrar of this Court for their further action on the Auctioneer Mr. Kenneth Odhiambo t/a Jenks Auctioneers of PO Box 325-40100 Kisumu.
p. 5referral to the Auctioneers Board - final orders

Issues in the judgment

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minor

The court's ruling states 'the sale of the Isuzu pick up valued at Kshs. 990,000/-' but earlier paragraphs record Kshs. 990,000/- as the value of motor vehicle KBJ 277W (Double Cabin Toyota Hilux), suggesting an internal inconsistency in vehicle identification/valuation

minor

The ruling refers to 'sale of the Isuzu Pick Up' while the parties' pleadings and submissions concern an 'Isuzu Bus' registration KBJ 852E that was attached but apparently not yet sold

minor

The judgment does not state the names/role designations of the Decree Holder on its face, and the disposition does not expressly repeat the setting aside order in numbered form

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Ramogi v Great Lakes University Kisumu; Odhiambo t/a Jenks Auctioneers (Interested Party) (Cause 2 of 2022) [2025] KEELRC 437 (KLR)", Case Analysis (2025). Not stated on face of judgment (application dated 1st October 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/437/eng@2025-02-18

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