Auctioneer/Applicant v Defendant/Respondent (Notice of Motion dated 12th June 2025)
The bottom line
#A Bungoma court ruled a Kenyan debtor must pay auctioneer fees even when debt collection was stopped partway, though some charges were cut.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Applicant is entitled to his auctioneer fees, and if so, how much
Key legal issues
#Entitlement to auctioneer fees where execution was stayed before completion
The Applicant, having served a proclamation notice on the Respondent, is entitled to auctioneer fees notwithstanding that execution was stayed before conclusion
Rule 7 of the Auctioneers Rules places liability for auctioneer charges on the debtor unless the debtor cannot be found, has no executable goods, or proceeds are insufficient. The court applied Nduati v Kioko to hold that even where execution is stayed before conclusion of the execution process, the auctioneer may recover fees from the Respondent. Since the proclamation was served on 7th May 2025, entitlement was established.
Quantum: basis of assessment where proclaimed property value exceeds the decretal sum
Fees on proclamation must be assessed on a single percentage from Part II of the Fourth Schedule and, where proclaimed value exceeds the decretal sum, on the decretal sum
The court adopted Mrima J's holding in Oscar Otieno Odongo v Sukari Industries rejecting band-by-band calculation, and Magare J's ruling in Odongo v Credit Bank that an auctioneer who finds goods in abundance must limit fees to the maximum of the decretal sum, to avoid auctioneers carting away unnecessary goods to inflate bills. Item 4 was thus assessed at 5% of Kshs. 586,621/=, yielding Kshs. 29,331.05/=.
Evidentiary value of submissions in substantiating disbursements
Submissions are not evidence; items lacking particulars or proof (such as vehicle ownership for travel) are taxed off or assessed at reduced reasonable sums
On item 11, the Applicant relied on submissions referencing a motor vehicle without proof of ownership; the court held submissions are not evidence and proof of ownership should be attached to the Bill of Costs. Nonetheless, since travel occurred, Kshs. 5,000/= was allowed. Items 12 and 14 were taxed off for want of particulars, and item 15 because court collection fees are borne by the decree holder, not recoverable from the judgment debtor.
Legal principles established
#- An unopposed application must still be determined on its merits by the court
- Under Rule 7 of the Auctioneers Rules, a debtor must pay auctioneer's charges unless the debtor cannot be found, has no executable goods, or sale proceeds are insufficient; even where execution is stayed before conclusion, the auctioneer may recover fees
- Auctioneer fees on proclamation must be pegged on the relevant single percentage in Part II of the Fourth Schedule, not calculated through multiple bands
- Where the value of proclaimed property exceeds the decretal sum, the auctioneer's commission should be assessed on the debt or decretal sum
Court orders
#- 1.The Respondent is ordered to pay the Applicant fees assessed at Kshs. 69,882.87/=
- 2.The assessed fees will earn interest at court rates from the date of the ruling till payment in full
- 3.The Applicant will have the costs of the Application assessed at Kshs. 10,000/=
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 3, 3A and 63(e) of the Civil Procedure Act and Rule 7 of the Auctioneer Rules (1999)
Relief refused
#Various items of the Auctioneer's Bill of Costs (items 1(c) duplication, 5 inventory, 12 and 14 for want of particulars, 15 court collection fees)
Taxed off for duplication, want of particulars/proof, or because court collection fees are payable by the decree holder rather than the judgment debtor
Fees pegged on the full value of proclaimed property (Kshs. 3,357,500/=) in item 4
Where proclaimed property value exceeds the decretal sum, commission should be assessed on the decretal sum
Costs
The Applicant will have the costs of this Application assessed at Kshs. 10,000/=.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
where an Application is not opposed, a court is still duty bound to determine whether such an unopposed application is merited
A debtor shall pay the charges of the auctioneer unless (a) that debtor cannot be found; or (b) he has no goods upon which execution can be levied; or (c) the sale proceeds are insufficient to cover the charges
even in instances where execution is stayed before conclusion of the execution process, the Auctioneer is allowed to recover his fees/costs from the Respondent
Auctioneer Fees on proclamation must be pegged on the relevant single percentage provided for in Part II of the Fourth Schedule of the Rules and should not be worked through the various bands with different percentages
where the value of the proclaimed property exceeds the debt or the decretal sum, it is only fair and just that the commission due to the auctioneer be assessed based on the debt or the decretal sum
the Respondent is ordered to pay the Applicantfees assessed at Kshs. 69,882.87/=.
The Applicant will have the costs of this Application assessed at Kshs. 10,000/=.
Issues in the judgment
#Judgment does not state the Applicant's name or the exact case number of the application itself; the Applicant is identified only as 'The Auctioneer/Applicant'
The ruling contains inconsistencies/typographical errors in the fee computation narrative, e.g. item 4 first assessed at 2% of the decretal sum (Kshs. 47,914.26/=) and later at 5% of Kshs. 586,621/= (Kshs. 29,331.05/=), and the arithmetic of item 7 (59 x 2 x 73.2 x 3) does not yield the stated Kshs. 25,912.80/=
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Auctioneer/Applicant v Defendant/Respondent (Notice of Motion dated 12th June 2025)", Case Analysis (2025). Application in execution arising from Bungoma CMCC/E054/2024. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/410/eng@2025-09-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.