Margaret Auma Omotto v Maria Were Oduor & another [2014] KEHC 2259 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA

AT BUSIA.

ELC. NO. 173 OF 2014 (FORMERLY HCC. 27 OF 2012)

MARGARET  AUMA OMOTTO..............................PLAINTIFF/APPLICANT

=VERSUS=

MARIA WERE ODUOR............................DEFENDANT/1^ST RESPONDENT

DASEMY AUCTIONEERS.............................................2^ND RESPONDENT

R U L I N G.

The Applicant, MARY AUMA OMOTO, by  notice of motion  under certificate  of urgency dated 4^th August, 2014  prays for stay of  sale of her four heads  of cows attached on 1^st August, 2014, and an order that the auctioneers fee be paid by the Respondent, Maria  Were Oduor. She also prays for costs. The application is based on the four grounds on the application summarized as follows:

a. That the execution  was in contravention to Order  49 rule 5 of the Civil Procedure  Rules as she had lodged a  notice  of objection to the taxation.

b. That no proclamation of attachment  was issued to her.

c. That the value  of the four heads of cows was  not  even 10% of their  market  value.

d. That the  auctioneer’s fee in the notice of sale was high.

The application  is also supported by the affidavit  of Margaret  Auma Omoto sworn on 4^th August, 2014.

The application was placed before the duty Judge, Bungoma, who issued prayers 1 and 2 on the 5^th August, 2014. The Applicant was ordered to serve the application for interpartes hearing on 12^th  August, 2014. The order was extracted and served with the application on counsel for the Respondent and Dasemy Auctioneers as confirmed in the affidavit of service of Melisa  N. Onyango sworn on 11^th August, 2014.

Maria  Were  Oduor, filed  a replying affidavit sworn on 12^th August, 2014, opposing  the application. She  among others deponed as follows:-

1. That the  Deputy Registrar’s ruling  on taxation of costs was delivered  on 28^th May, 2014 and 30 days  stay granted.

2. That  by the time the stay orders of 5^th August, 2014 were  issued the attached livestock had been sold.

3. That  the Applicant had not made any proposal  for payment.

4. That the  Applicant had been served with all the auctioneers notices.

When the application came up for hearing interpartes on  12^th August, 2014, it was on application of the parties rescheduled to 23^rd September, 2014.

I have carefully considered the grounds, on the application, supporting affidavit, replying affidavit, written and verbal submission by Applicant and Respondent’s counsel and found as follows:

1. That the Applicant had commenced proceedings against the Respondent, Maria Were Oduor through the originating  summons dated  25^th April, 2013.

2. That through  the Court’s  judgment of 27^th November, 2013, the Applicants suit  was dismissed with costs.

3. That the  Respondent’s  counsel  filed the party to party bill of costs dated 11^th December, 2013 on the 4^th February, 2014  and a ruling  was delivered  by the Deputy Registrar on 28^th May, 2014.

4. That the Deputy Registrar  granted  a 30 days  stay from 28^th May, 2014  which expired on or about 27^th June, 2014.

5. That on 3^rd June, 2014 the Applicant  filed  a notice of objection to the decision of the taxing  officer  dated 2^nd June, 2014 in terms of Rule 11 of the Advocates (Remuneration) Order.  Under the provision of sub rule 1 of Rule 11 of the said Order, a party to taxation proceedings is entitled to seek for reasons on the specific items by giving a notice to the taxing officer within 14 days after taxation. The taxing officer  is required  under sub rule 2 to;

 ‘’   …forthwith   record and forward to the objector, the reasons for his decision on those items and the objector  may within fourteen  days from the receipt of the reasons apply to a Judge  by Chamber Summons, which shall be served on all the parties concerned setting out the grounds  of his objection.’’

6. That  the Applicant’s notice of objection  dated 2^nd June, 2014  and filed on 3^rd June, 2014  had requested  reasons  for items 1 to 10,  13, 17 and 18 of the bill of costs. The wording of Rule 11 (2) of the Advocates (Remuneration) order is in mandatory terms meaning that the taxing officer is obligated, upon receipt of the notice filed within 14 days from the date of taxation, to give reasons for the items specified.  The notice  dated 2^nd June, 2014 and filed on 3^rd June, 2014 was  filed within time as the taxation had taken place on 28^th May, 2014.  The court  notes that up to now, there is nothing in the file to confirm that the reasons  have been supplied.

7. That as the Applicant was waiting for a response to the notice  dated 2^nd June, 2014, the certificate  of costs dated 25^th June, 2014 was issued. Then on 8^th July, 2014, the Respondent  applied  for execution  of the decree and the warrants of attachment and the sale of movable  property dated 17^th July, 2014 were issued to Dasemy Auctioneers, the  2^nd Respondent.

8. That though the 30 days stay granted on 28^th May, 2014 were  to expire  on or about 27^th June, 2014, and that the Applicant had not  moved the court for a further stay, the fact that she was yet  to receive  a response to her notice of objection dated 2^nd June, 2014 would have required  the issuance of  certificate  of costs and attachment  be held in abeyance until  after 14 days from the date  the reasons requested by Applicant had been supplied to confirm whether  a reference  to the judge would have been preferred.

9. That upon  the warrants of attachment and sale of movable property having been issued  to the 2^nd Respondent, the  procedure and process to be followed is as provided  under section 13 of  the Auctioneers Act Chapter  526 of Laws  of Kenya which states;

‘’  13.  Perishable goods and livestock  upon receipt of a court warrant or letter of instruction, the auctioneer shall in the case of goods of a perishable nature or   livestock;-

a. record the court warrant or letter of instruction in the register.

b. Prepare  a proclamation in Sale Form 2 of  the Schedule indicating  the value of specific  items and the condition of each item  which inventory shall be signed  by the owner of the goods or an adult person residing  or working at the premises where the goods are attached, and where a person refuses to sign  such inventory the auctioneer shall sign a certificate to that effect.

c. Give in Sale From 3  to the owner of the goods seventy two hours notice within which the owner may redeem the goods by payment of the amount set forth in the court warrant or letter of instruction:

Provided that in the case  of perishable  goods, no such grace period shall be  necessary;

d. on expiry of the period of notice without  payment remove the goods;

e. ensure  safe storage of goods pending their auction;

f. arrange  immediate advertisement and sale.’’

10. That the only document the Applicant  received from the auctioneer is the one headed the ‘’NOTIFICATION OF SALE’’ dated 1^st August, 2014 indicating  among others that,

‘’ the goods proclaimed and listed below  are hereby  removed for safe storage in our premises pending auction on 04/08/2014……..’’

11.  That the Respondents have not provided any other document that may have been served on the Applicant.  The replying  affidavit  of Maria Were  Oduor, sworn on 12^th August, 2014  at paragraph 7 only states  in general terms that;

‘’ 7.  That the applicant  was duly served with all the auctioneers notices.’’

This  does not, without  exhibiting copies  of the notices served, amount to a rebuttal  of the Applicant’s contention that  only the copy annexed  to her affidavit  which is described in (10)  above was served.

12. That  in view of the finding in (10) and (11)  above, it  is clear that the proclamation document  envisaged  in Section  13  (b)  of the Auctioneers Act  was not  prepared and issued to the Applicant by the auctioneer. It is that document that could have indicated the values of each of the four heads of cattle and their condition at the proclamation stage. The Auctioneer is required under the said subsection to ask the  owner of the goods being proclaimed or an adult representative to sign the document and should they decline  to do so, the auctioneer to sign a certificate to that  effect.

13. That the  notification of sale served on the Applicant on 1^st August, 2014, which was a Friday, indicated that the auction  would  take place on Monday, the 4^th August, 2014. The provision of Section 13 (c) of the Auctioneer Act  requires  the owner of the goods to be given 72 hours within which to redeem the goods by making payment.

14. That Order 50 Rule 2 of the Civil Procedure Rules is relevant in computation of time of less than six days. It states as follows:

‘’ 2. where any limited time less than six  days from or after any date or event is appointed or allowed for  doing any act or taking any proceedings, Sundays, Christmass Day and Good Friday, and any other day appointed as a Public holiday, shall not be reckoned in the computation of such limited time.’’   

This clearly  means that when  computing  the 72 hours, the 3^rd August, 2014 which  was a Sunday would not be   included in the computation.

15.  That the  72 hours  which is equivalent to three  days could not have expired by the 5^th day of August, 2014 which is the date the auctioneer indicated in his returns dated 6^th August, 2014 to be the date the auction took place view of the provision of Order 50 Rule  8 of the Civil Procedure  Rules.  The notification of sale served on Applicant had indicated the auction would be on 4^th August, 2014 and in the absence of copies of the advertisement showing  the date of the auction was 5^th August, 2014, the Applicant and general members of the public would not have known of the auction and the venue of the auction.

16. That in view of Order 50 Rules 2 and 8 of the Civil Procedure Rules, the earliest the auction could have taken place after the expiry of 72 hours  from 1^st August, 2014  was on the 6^th August, 2014 and not before.   

17. That the  interim orders  of  stay were issued on 5^th August, 2014  and served on the Respondents by the afternoon of 6^th August, 2014 as confirmed  in the affidavit of service sworn on 11^th August, 2014.

18. That the attachment and sale of the four heads of cattle of the Applicant was not carried out in accordance with section 13 of the Auctioneers Act. The Law required theAuctioneer to first issue a proclamation detailing the values and descriptions of the four  cows. Thereafter the auctioneer was required to issue the Sale Form 3  and after the expiry  of the 72 hours  remove the  four  cows and store them. This was to be followed with the appropriate advertisement for the auction and the auction itself.  This procedure was not followed and the Applicant cannot be faulted for reading mischief in the way the whole  process was conducted.

19. That flowing  from the  finding in (18) above, the sale  of the four cows by the auctioneer was without following the due process and therefore  illegal. The 2^nd Respondent, as the auctioneers who carried out the attachment and sale  without abiding  by the provisions of Section 13 of the Auctioneers Act, are officers of the court as  held by the court of Appeal in National Bank of Kenya Ltd –vs- Jolly Family Stores & Another                                      [2005]eKLR which it stated;

‘’  ..auctioneers, while  executing  decrees of  the courts, are  indeed agents of the court.  It is from the courts which gives them authority to execute, for example  by the different modes of warrants and the same court can order them to stop the execution process.’’

The auctioneers were therefore expected to be faithful to the provisions of the law in carrying out the attachment and sale and unfortunately they failed. The Respondents are therefore  answerable  for  the Applicant’s costs and damages that she may have suffered as a result of their  failure to obey the provisions of section  13 of the Auctioneers Act in carrying out the attachment  and sale. The court notes that the Respondents have indicated  the execution has been completed and the sale cannot be stopped

20.  That for reasons  set out above,  the application  dated 4^th August, 2014  is allowed in the following terms:

(a)  That the attachment and sale of the Applicant’s four cows is hereby declared to have been carried out without following  the provisions of section 13 of the Auctioneers Act and hence  illegal.

b) That the Respondents are liable for the costs of the attachment and sale of the four cows of the Applicant.

c)  That in view of the fact that the sale of the four cows cannot be reversed, the  stay orders issued on 5^th August, 2014 are hereby vacated.

d) That the parties to appear before the Deputy Registrar with a view of the exploring the possibility of agreeing  on the value of the four cows and compensation thereof failure to which the Applicant be at liberty to move the court as appropriate.

e) The Deputy Registrar do respond to the Applicant’s notice of objection dated 2nd June, 2014 and filed on 3^rd June, 2014 within the next 14 days.

It is so ordered.

S. M. KIBUNJA,

JUDGE.

DATED AND DELIVERED ON 23^RD DAY OF OCTOBER, 2014.

IN THE PRESENCE OF; PLAINTIFF/APPLICANT ONLY.

JUDGE.