Wednesday, July 13, 2011

AUCTIONEERS IN KENYA - FREQUENTLY ASKED QUESTIONS

Question. Who is an auctioneer?
Answer.
An auctioneer is a qualified individual holding a valid auctioneering license issued by the Auctioneers Licensing Board pursuant to the provisions of the Auctioneers Act No. 5 of 1996 Laws of Kenya. An auctioneer's license is strictly issued to an individual and it is not transferable.

Question. Is the auctioneering business rooted in the Law?
Answer. The auctioneers Act No. 5 of 1996 and Rules of 1997 regulate the business of Auctioneering. For a person to perform the duties of an auctioneer he must hold a valid Auctioneers License issued by the Auctioneers Licensing Board pursuant to the provisions of the Auctioneers Act No. 5 of 1996. The Licensing Board based at Milimani commercial courts Nairobi maintains a record of all the licensed auctioneers.

Question. What are the duties of a licensed auctioneer?
Answer.  A licensed auctioneer is authorized under the Auctioneers Act to undertake the following duties
  • To levy Distress for rent against defaulting tenants pursuant to the provisions of the Distress for Rent Act Cap 293 laws of Kenya.
  • To attach for sale any movable or immovable property pursuant to a court order made pursuant to any written law or contract.
  • To repossess property pursuant to any written law or contract.
  • To carry out evictions pursuant to a Court order.
  • To realize charged security
  • To offer for sale any movable or immovable property through public auction or any other mode of sale by competition.
It is a an offence punishable under the Auctioneers Act and the Penal Code for anyone to undertake the above duties in Kenya without a valid Auctioneer's license issued by the Kenya Auctioneers Licensing Board. Only licensed auctioneers are authorized under the law to undertake these tasks. You should always ask to see the identification badge and the current practicing license of the auctioneer you intend to engage and if in any doubt, please always contact the Auctioneer Licensing Board based at Milimani Commercial Courts Nairobi or the Auctioneers Association.

Quetsion. Why should I engage the services of a licensed auctioneer and not any other person?
Answer. A good citizen adheres to the laws of the land. By engaging a licensed auctioneer you are acting within the law. Lately, there has been a trend where the Courts are awarding debtors huge sums of money in form of damages and other reprieves against creditors who engaged unlicensed persons to perform the duties of a licensed auctioneer. Many property sales, realization of securities and repossessions have been reversed / nullified by the courts for this reason alone.

Question. Can an auctioneer enter my property without my authority?
Answer
. Yes. A licensed auctioneer is under the law authorized to enter into any property to enforce a court order or instructions from third parties against your property in the course of his duties. An auctioneer may request for police escort where he predicts resistance or intimidation by the debtor or where he has to break any door to gain access to property. This will always be at the expense of the debtor / owner of the property to be executed against.
Question. Is there a code of conduct for auctioneers?
Answer. Yes. All licensed auctioneers are required to follow the laws of Kenya and particularly to carry out their business in accordance with the provisions of the Auctioneers Act No 5 of 1996, Auctioneers Rules 1997 and the Auctioneers Practice Rules of 2009. Auctioneers Practice Rules 2009 outlines the code of conduct for licensed auctioneers.

Question. Who licences court process servers?
Answer. Court process servers are licensed by the process servers committee based in the High Court of Kenya. The process server's license is renewed annually upon payment of the requisite fees. A list of all the licensed process servers for the current year (2011) is readily available and accessible to the public at the Kenya law reports website www.kenyalaw.org  
Question. Who pays auctioneer's fees and expenses for auctioneering services?
Answer. The auctioneer's expenses in most cases are to be met by the debtor. However if the debtor cannot be traced, or has no assets upon which execution can be levied, or the proceeds of the sale are not sufficient to cover the charges, then the creditor pays the fees or the shortfall thereof.

Question. At what point is the auctioneer entitled to his fees for an attachment?
Answer. An auctioneer is entitled to his full fees as provided in the scales as soon as he initiates the process of attachment i.e. upon placing attachment notice (proclamation) upon the debtor's assets.

Question. How is the auctioneers fees determined?
Answer. The scale for calculating auctioneer charges is provided for in the Auctioneers Act, fourth schedule Auctioneers Rules 1997. Please visit the official Kenya Law Reports  website www.kenyalaw.org where you will be able to browse all the laws of Kenya (Acts of Parliament) including the entire Auctioneers Act and Rules made therefrom complete with the auctioneers fees scale. 


Question. Can an auctioneer carry my goods away without any notice?
Answer.
No. A licensed auctioneer before carrying away your goods is required under the law to issue, in case of a court warrant, a proclamation notice of seven days and fourteen days for distress for rent cases.

Question. Can I transfer or move the goods comprised in a proclamation notice issued by an auctioneer to unknown place to defeat attachment?
Answer. It is an offence under the auctioneers rules and the Penal code for the debtor or his agents to interfere with any goods comprised in a proclamation before they are redeemed by payment of the amount demanded therein or such lesser amount as the creditor may agree in writing. Upon being proclaimed, the goods come into the custody of the law and the debtor/owner therefore loses control over the goods as long as the attachment stand.

Question? What should I do when an auctioneer come calling?
Answer.
When an auctioneer visits you, please co-operate and do not panic, his/her actions are well rooted in law. He is only performing his duties as required by the law. An auctioneer must however, identify himself/herself precisely and state the purpose of the visit.


1 comment:

Anonymous said...

Very incisive! Keep up the good work.