The Auctioneers Rules

Section 1. Citation Section These Rules may be cited as the Auctioneers Rules.

Section 2. Interpretation Section money held or received by an auctioneer by way of deposit against fees to be earned or disbursements to be incurred; and

Section 3. Application for a licence Section 3(1)(a) a class "A" licence which shall be a general auctioneering licence limited to specific districts; Section 3(1)(b) a class "B" licence which shall be a general auctioneering licence which shall enable the holder to realize charged securities, repossess and sell any property throughout Kenya, execute court orders, and to levy distress within specific districts. Section 3(2)(a) such application fee as the Chief Justice may prescribe; Section 3(2)(b) a current certificate of good conduct from the Criminal Investigation Department obtained at least six months prior to the application; Section 3(2)(b)(i) a current certificate of good conduct from the Criminal Investigation Department obtained at least six months prior to the application; Section 3(2)(b)(ii) a recommendation of Licensing Form 2 set out in the Schedule from the area magistrate and the auctioneer or firm of auctioneers under whom the applicant has had experience for the two years prior to the application; Section 3(2)(b)(iii) a recommendation on Licensing Form 3 set out in the Schedule from either a religious leader, or the locational chief of the area of the applicant’s...

Section 4. Issuance of identification card to auctioneers Section At the time of issuing a licence the Board shall also issue an identification card to the licensee under section 13 of the Act which identification card shall be in such form with such safeguards as to validity and against counterfeiting as the Board may consider fit.

Section 5. Application of Part III Section 5(1)(a) otherwise provided by any other written law; or Section 5(1)(b) the court otherwise directs under the Civil Procedure Rules (Cap. 21), Sub. Leg.). Section 5(2) A letter of instruction under subrule (1) shall be in Sale Form 1 set out in the Schedule.

Section 6. Register of warrants and letters of instruction Section the number of the case under which the warrant was issued and the name of the court that issued it;

Section 7. Payment of auctioneer’s charges Section that debtor cannot be found; or

Section 8. Insurance Section 8(1) Subject to these Rules, the auctioneer seizing or repossessing goods under a court warrant or letter of instruction shall be responsible for the safe custody and insurance of any movable property seized or repossessed by him until it has been sold or the seizure or repossession is withdrawn. Section 8(2) In case of a stay of the seizure or repossession of any property or objection proceedings to the seizure the auctioneer shall immediately notify the creditor and the debtor, and the court (if any) of the arrangements he considers desirable or necessary for the safe custody, repair, maintenance, storage, transport and insurance of the goods seized or repossessed and the cost thereof pending determination of the stay or objection and may request the court to fix such fees and costs and payment in advance or as the court may think just, such fees and costs being in addition to those provided for in these Rules. Section 8(3) Where the property seized is livestock the auctioneer receiving the warrant or letter of instruction shall forthwith notify the creditor and the debtor and the court (if any) of the arrangements he considers desirable or necessary...

Section 9. Police assistance Section 9(1)(a) he may have to break the door of any premises where goods may be seized or repossessed; or Section 9(1)(b) he may be subject to resistance or intimidation by the debtor or other person; or Section 9(1)(c) a breach of the peace is likely as a result of seizure, repossession or attempted seizure or repossession of any property, Section 9(2) An application under this rule shall be by motion by way of a miscellaneous application support by an affidavit and may be heard ex parte . [L.N. 144/2009, r. 3.]

Section 10. Independent valuation of goods attached Section A debtor may, at any time before the property seized or repossessed is sold, apply to a court for an order that the property be valued by an independent valuer.

Section 11. Contents of court warrant or letter of instruction Section 11(1)(a) the decretal amount, date of decree, date of return to court or where there is no decree, the exact amount to be recovered as at a date not later than the date of the letter of instruction plus the estimated daily or monthly interest or rent to accrue thereafter; Section 11(1)(a)(i) the decretal amount, date of decree, date of return to court or where there is no decree, the exact amount to be recovered as at a date not later than the date of the letter of instruction plus the estimated daily or monthly interest or rent to accrue thereafter; Section 11(1)(a)(ii) the person amongst whom the decree is to be executed; Section 11(1)(a)(iii) the exact location of goods; Section 11(1)(a)(iv) the person to point out the goods; Section 11(1)(a)(v) where ascertainable, a list of the goods to be attached or repossessed; Section 11(1)(a)(vi) where appropriate, reserve prices or where there are to be no reserves prices, a record of the reasons for not selling subject to such reserve prices; Section 11(1)(b) as in (i) to (v) in paragraph (a); Section 11(1)(b)(i) as in (i) to (v) in paragraph (a); Section 11(1)(b)(ii...

Section 12. Movable other than perishable goods and livestock Section 12(1)(a) record the court warrant or letter of instruction in the register; Section 12(1)(b) prepare a proclamation in Sale Form 2 of the Schedule indicating the value of specific items and the condition of each item, such inventory to be signed by the owner of the goods or an adult person residing or working at the premises where the goods are attached or repossessed, and where any person refuses to sign such inventory the auctioneer shall sign a certificate to that effect; Section 12(1)(c) in writing, give to the owner of the goods seven days notice in Sale Form 3 of the Schedule within which the owner may redeem the goods by payment of the amount set forth in the court warrant or letter of instruction; Section 12(1)(d) on expiry of the period of notice without payment and if the goods are not to be sold in situ , remove the goods to safe premises for auction; Section 12(1)(e) ensure safe storage of the goods pending their auction; Section 12(1)(f) arrange advertisement within seven days from the date of removal of the goods and arrange sale not earlier than seven days after the first newspaper advertisement an...

Section 13. Perishable goods and livestock Section record the court warrant or letter of instruction in the register;

Section 14. Non-removal or alteration of attached goods Section A person who removes, alters, damages, substitutes or alienates any goods comprised in the proclamation, before they are redeemed by payment in full of the amount in the court warrant, or letter of instruction, or in such lesser amount as the creditor or his advocate may agree in writing, commits an offence. [L.N. 144/2009, r. 7.]

Section 15. Immovable property Section record the court warrant or letter of instruction in the register;

Section 16. Advertisement Section 16(1)(a) the date, time and place of the proposed sale; Section 16(1)(b) the conditions of sale or where they may be obtained; Section 16(1)(c) the time for viewing the property to be sold; Section 16(1)(d) in respect of movable property other than perishable goods and livestock, an accurate description of the goods to be sold and a statement as to whether or not they are to be sold subject to a reserve price; Section 16(1)(e) in respect of goods of a perishable nature or livestock an accurate description of the goods to be sold and of their condition and a statement as to whether or not they are to be sold subject to a reserve price; Section 16(1)(f) in case of immovable property all the information required to be contained in the court warrant or letter of instruction except the amount to be recovered and the exact amount of any reserve price. Section 16(2) Except as may be ordered by a court, advertisement by an auctioneer of a sale by auction of any property, movable or immovable, shall be by way of an advertisement in a newspaper, provided that in the case of perishable goods and livestock advertisement in a newspaper may be dispensed with if...

Section 17. Auction Section 17(1)(a) of goods seized or repossessed under any contract or any written law between the hours of 10.00 a.m. and 6.00 p.m.; or Section 17(1)(b) in other sales between the hours of 10.00. a.m. and 10.00 p.m., and in either event— Section 17(1)(c) in a venue open to and accessible to the public, provided that it shall be lawful for an auctioneer to charge prospective bidders a reasonable sum for a sale catalogue or other list of lots for sale as a condition precedent to entry to the auction premises. Section 17(2) The auctioneer shall make reasonable arrangements for the identification of the items for sale by list or catalogue and by the allocation of lot numbers which shall so far as possible be indicated on the goods at the time of sale. Section 17(3) The auctioneer shall call out each lot for auction identifying the lot number and showing to bidders the lot for sale or in the case of immovable property identifying the lot for sale by reference to a map or sketch and shall invite bids on it. Section 17(4) The highest bidder shall be the purchaser subject to compliance with the conditions of sale. Section 17(5) The auctioneer shall, after selling the mo...

Section 18. Proceeds of sale Section 18(1) Payment by a purchaser at a sale of seized goods shall be in form of cash, banker’s cheque or electronic funds transfer. Section 18(2) Payment by a purchaser in all other cases shall be in such forms as the auctioneer shall think fit. Section 18(3) On receipt of the proceeds of sale the auctioneer shall issue a receipt for it and in the case of immovable property sign a memorandum of sale. Section 18(4) The auctioneer shall remit the proceeds of sale less his charges to the court or the instructing party, as the case may be, accompanied by an itemised account in the case of movable property within fifteen days of the sale and in the case of immovable property as provided under Order 22, rule 70 of Civil Procedure Rules ( Cap. 21 , Sub. Leg.). [L.N. 144/2009, r. 10, L.N. 267/2017, r. 2.]

Section 19. Maintenance of clients’ account Section 19(1) An auctioneer shall maintain a clients’ account or accounts into which he shall without delay pay all clients’ money held or received by him. Section 19(2)(a) money belonging to the auctioneer necessary to maintain the account; Section 19(2)(b) money to replace any sum drawn from the account in contravention of these Rules; and Section 19(2)(c) a cheque or draft received by the auctioneer which under paragraph 20(1)(b) he is entitled to split but does not split. Section 19(3)(a) is received by him in the form of cash in the ordinary course of business and is paid to a court; or Section 19(3)(b) is received by him in the form of a cheque or draft and is endorsed over and delivered in the ordinary course of business to a court and is not cashed or passed through a bank account by the auctioneer. Section 19(4) An auctioneer shall pay into a clients’ account all clients’ money received or held by him and which he is by these Rules permitted or required to pay in.

Section 20. Clients’ account Section 20(1)(a) he may where practicable split the cheque or draft and, if he does so, he shall deal with each part of it as if he had received a separate cheque or draft in respect of that part; or Section 20(1)(b) if he does not split the cheque or draft, he shall pay it into a clients’ account. Section 20(2)(a) money properly required for payment to a client or a court; Section 20(2)(b) money properly required for payment authorized by a court or a client; Section 20(2)(c) money properly required for or towards payment of the auctioneer’s charges as specified in rule 6(j); Section 20(2)(d) money paid into the account in contravention of these Rules; Section 20(2)(e) money paid into the account under rule 19(2)(a); and Section 20(2)(f) money not being clients’ money paid into the account under rule 19(2)(c). Section 20(3) A cheque drawn upon a clients’ account shall bear on its face the words "clients’ account". Section 20(4) An auctioneer shall not withdraw from a clients’ account any sum in excess of the amount held for the time being in the account for the credit of the client in respect of whom the drawing is proposed to be made. Section 20(5) No...

Section 22. Books of accounts Section 22(1)(a) every receipt of clients’ money, in respect of each client; Section 22(1)(b) every payment by him out of the clients’ account in respect of each client; Section 22(1)(c) the amount held by him for the time being in a clients’ account, in respect of each client; and Section 22(1)(d) the money expended for, and the costs charged to, each client. Section 22(2)(a) a cash book for office and clients’ account; Section 22(2)(b) every transaction involving clients’ money, or other money dealt with by the auctioneer through a clients’ account; and Section 22(2)(b)(i) every transaction involving clients’ money, or other money dealt with by the auctioneer through a clients’ account; and Section 22(2)(b)(ii) every transaction involving the auctioneer’s own money and relating to his activities as an auctioneer; Section 22(2)(c) a record showing particulars of all charges levied by the auctioneer. Section 22(3) Subject to paragraph 2 (a) a cash book or ledger kept under this rule may be a loose-leaf book or may consist of cards or other permanent record. Section 22(4)(a) in separate volumes of the cash book and ledger; or Section 22(4)(b) in one cas...

Section 23. Preservation of records Section An auctioneer shall preserve for at least six years from the date of the last entry all books of account and accounting records.

Section 24. Reporting of records lost or destroyed Section An auctioneer shall take reasonable precautions to ensure the safety of all books of account and mechanical or electronic accounting records which he is required by rule 7 to keep and in the event of any books or records being lost, destroyed or materially damaged, shall forthwith give notice of such loss, destruction or damage to the Board, together with a written report on the circumstances of the same.

Section 25. Accountant’s certificate Section Subject to these Rules an auctioneer shall every year deliver to the Board a certificate in a form approved by the Board signed by an accountant and complying with these Rules.

Section 26. Who may not give an accountant’s certificate Section 26(1)(a) he has at any time during the accounting period but before giving the certificate, been a partner, clerk or servant of the auctioneer; or Section 26(1)(b) he is subject to a notice of disqualification under subrule (2). Section 26(2)(a) the accountant has been found guilty, by the disciplinary committee appointed under section 29 of the Accountants Act (Cap. 531), of professional misconduct; or Section 26(2)(b) the accountant has deliberately or negligently failed to comply with this Part,

Section 27. Procedure on examination of accounts Section make a general test examination of the books of accounts and other mechanical or electronic accounting records of the auctioneer;

Section 28. Dispensation of requirements of rule 25 Section The Board may dispense with the requirements of rule 25 if it is satisfied that an auctioneer has not held or received clients’ money since the delivery by him of his last certificate or since he was licensed, whichever is the later.

Section 29. Commencement of an accounting period Section begin at the expiry of the last preceding period accounting period for which an accountant’s certificate has been delivered;

Section 30. Accounting period Section 30(1)(a) the date when a licence is granted to an auctioneer who has not previously held a licence; or Section 30(1)(b) the date when an exemption from delivering a certificate, given to an auctioneer under rule 28 expires. Section 30(2) An accounting period shall, when an auctioneer retires from his business and is obliged to deliver a final accountant’s certificate, end on the date when he last held clients’ money and may last less than twelve months.

Section 31. Separate accounting periods Section An auctioneer who has two or more places of business may adopt separate accounting periods in respect of each place of business.

Section 32. Form of complaint Section A complaint to the Board under section 24 of the Act shall be made by way of affidavit in Disciplinary Form 1 in the Third Schedule: Provided that where a complaint is instigated by the Board itself, such complaint may be made on behalf of the Board by the Executive Secretary.

Section 33. Fee for complaint Section An affidavit referring a complaint to the Board shall be accompanied by such fee as may be prescribed by the Chief Justice.

Section 34. Formal order by Board dismissing a complaint Section If a complaint made to the Board is dismissed under the proviso to section 24(3) of the Act, the Board shall, if so required by the complaint or the auctioneer to whom the complaint relates, make a formal order dismissing the complaint.

Section 35. Fixing date for hearing of a complaint Section In case of a complaint against an auctioneer the Board shall fix a date for the hearing, and the Executive Secretary to the Board shall give notice of the hearing to each party to the proceedings not less than twenty-one days before the day fixed for the hearing and shall at the same time furnish each party with a copy of any affidavit from the opposing party.

Section 36. Notice of hearing Section shall be in Disciplinary Form 2 set out in the Third Schedule and shall, unless the Board otherwise directs, require the party to whom it is addressed to furnish to the Executive Secretary and to every other party at least fourteen days before the day fixed for the hearing, a list of all documents which he intends to rely at the hearing; and

Section 37. Admission of documents Section 37(1) A party may be notified in writing, at any time not later than nine days before the date fixed for the hearing, to call upon any other party to admit any document and if such party desires to challenge the authenticity of the document he shall within six days after service of such notice, give notice that he does not admit the document and requires it to be proved at the hearing. Section 37(2) If a party refuses or neglects to give notice of non-admission within the time prescribed in subrule (1), he shall be deemed to have admitted the document unless the Board otherwise directs. Section 37(3) Where a party gives notice of non-admission within the time prescribed by subrule(1), and the document is proved at the hearing, the costs of proving the documents shall be paid by the party who has challenged the document, whatever the order of the Board may be, unless in its report or order the Board finds that there were reasonable grounds for not admitting the authenticity of the document. Section 37(4) Where a party proves a document without having given notice to admit under subrule (1) the Board may disallow the costs of proving the doc...

Section 38. Inspection of documents Section A party may inspect and take copies of the documents included in the list furnished by any other party.

Section 39. Hearing of complaints to be in public Section The Board shall hear all complaints and applications in public unless the Board in its discretion otherwise decides.

Section 40. Failure to appear at hearing Section If a party fails to appear at a hearing, the Board may, in its discretion, upon proof of service on such party of the notice of hearing, proceed to hear and determine the complaint in his absence.

Section 41. Evidence by affidavit Section The Board may in its discretion, either as to the whole case or as to any particular fact or facts, proceed and act upon evidence given by affidavit.

Section 42. Withdrawal of complaint Section No complaint made under these Rules shall be withdrawn after it has been sent to the Executive Secretary, except with the leave of the Board, which may be granted, or refused, upon such terms as to costs or otherwise as the Board thinks fit.

Section 43. Adjournment of hearing Section The Board may, on its own motion, or upon the application of any party, adjourn the hearing upon such terms as to costs or otherwise as it thinks fit.

Section 44. Consolidation of proceedings Section The Board may, after giving the parties concerned an opportunity to be heard, order the consolidation of the hearing of any proceedings before it.

Section 45. Amendment of complaints Section If, in the course of a hearing, it appears to the Board that the charges of which notice has been given require to be amended or added to, the Board may make or permit such amendment or addition, and the filing of such further affidavit, as it thinks fit, or, if in the opinion of the Board such amendment or addition is not within the scope of the complaint may require the same to be embodied in a further complaint, provided that if such amendment or addition, is, in the opinion of the Board such as to take any party by surprise, or prejudice the conduct of his case, the Board shall grant an adjournment of the hearing upon such terms as to costs or otherwise as the Board thinks fit.

Section 46. Power to award costs Section Upon the hearing or determination of a complaint against the auctioneer the Board may, without finding any professional misconduct proved against the auctioneer nevertheless order any party to pay the costs of proceedings having regard to his conduct and to all the circumstances of the case.

Section 47. Record of proceedings before the Board Section The Executive Secretary of the Board shall keep a record of all proceedings before the Board.

Section 48. Inspection of record of proceedings Section A party to proceedings before the Board shall be entitled to inspect the record or transcript of it and a party entitled to be heard in an appeal filed from such proceedings shall be entitled to be supplied with a copy of a transcript of such proceedings against payment, if so ordered by the Board, of copying charges at such reasonable rate as the Board may direct.

Section 49. Service of notice or document Section Service of a notice or document may be effected under these Rules by any method authorized by law or by registered post, addressed to the last known postal address or abode in Kenya of the person to be served, and such service shall be deemed to have been effected seven days after posting.

Section 50. Discretion of the Board to dispense with the requirement of these Rules Section The Board may dispense with any requirements of these Rules respecting notices, affidavits, documents, service or time, in any case where it appears to the Board to be just or expedient so to do.

Section 51. Extension of time Section The Board may extend the time for doing anything under these Rules on such terms as to costs or otherwise as the Board thinks fit.