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Auctioneers Act

Assented 16th October, 1996 And Commenced 15th August, 1997

The Purpose Of The Act Is To consolidate And Amend The Law Relating To Auctioneers, To Provide For The Licensing And Regulations Of The Business And Practice Of Auctioneers, And For Connected Purposes

(Section 3)

Section 3(1) establishes the Auctioneers Licensing Board whose composition shall include—

  1. one person appointed by the Chief Justice with qualification similar to that of a judge of the High Court or the Court of Appeal and who shall be chairperson;
  2. the Permanent Secretary in the Office of the President for the time being responsible for matters relating to provincial administration, or his/her representative;
  3. one Chief Magistrate to be appointed by the Chief Justice;
  4. two advocates, of not less than ten years’ standing to be nominated by the Council of the Law Society;
  5. four auctioneers of not less than five years’ standing, nominated by the Chief Justice on the recommendation of the association;
  6. one person nominated by the National Chamber of Commerce and Industry;
  7. one person nominated by the Kenya Bankers Association, to represent financial institutions.

Section 3(2) provides that for a maximum term of two 3 year term with the second term being a reappointment, for members of the Board other than an ex officio member.

Object and functions of the Board (Section 4)

Section 4(1) provides that the main function of the Board is to exercise general supervision and control over the business and practice of auctioneers, while section 4(2) provides for further functions of;

(a) licensing and regulating the business and practice of auctioneers;

(b) supervising and disciplining licensed auctioneers;

(c) Carying out training programmes for licensed auctioneers.

Powers of the Board (Section 5)

The section gives the Board powers necessary for proper discharge of its functions under the Act.

Meetings and procedure of the Board (Section 6)

The conduct and regulation of the business and affairs of the Board shall be as set out in the Schedule of the Act and the Board is given discretion to regulate its procedure only subject to the schedule.

Secretary to the Board (Section 7)

Section 7(1) requires the Chief Justice to appoint the Secretary of the Board who shall hold office for a renewable term of three years, while section 7(2) further gives the Chief Justice power to appoint another secretary for the same term if the appointed one under 7(1) is rendered unable to discharge his/her functions.

Revenue and expenditure (Section 8)

Section 8(1) provides that the expenses of the Board shall be provided from funds provided by Parliament and section 8(2) requires all fees and funds received by the Board to be paid into the Consolidated Fund.

(Section 9)

Section 9(1) prohibits carrying out of auctioneers functions without a valid license issued by the Board as per the Act and section 9(2) creates an offence of conducting functions of an auctioneer without a license which attracts a fine not exceeding one hundred thousand shillings, or to imprisonment for a term not exceeding two years, or to both.

(Section 10)

A person is eligible for an Auctioneer’s licence if he:

  1. Is a Kenyan
  2. Has sufficient knowledge and experience in the business and practice of an auctioneer;
  3. Has NOT been convicted of an offence attracting ten years imprisonment immediately preceding the application for an offence involving fraud, dishonesty or immorality and is otherwise of good character and reputation;
  4. Has not been disqualified under the provisions of the Act from obtaining or holding a licence.

Disqualification

A person is disqualified from obtaining an auctioneer’s licence if he:

  1. is a judge or a magistrate or is employed in any capacity as an executive or subordinate officer of a court; or
  2. is an advocate deemed under section 30A of the Advocates Act (Cap. 16) to be practising in his professional capacity or is employed in any capacity by such advocate; or
  3. is a public officer or an officer or employee of any local authority, statutory body or state corporation.

Section 10 (3) gives power to a Member of Parliament or a Councillor (now possibly applicable to Members of County Assembly) to hold a general licence enabling him or her to realise securities and carry out repossessions in such parts of the country as may be specified therein.

Section 10 (4) creates an offence of obtaining a licence contrary to the provisions section 10, which will attract a fine not exceeding one hundred thousand shillings, or to imprisonment for a term not exceeding two years, or to both on conviction.

Issue of licence in special circumstances (Section 11)

Section 11 provides for issuance of auctioneers licence in special circumstances apart from those set out in section 10. They include a person who—

  1. at the commencement of this Act is aged sixty-five years or more but is otherwise eligible to be licensed and has held an auctioneer’s licence for the three years immediately preceding the commencement, to carry on business for a period not exceeding twelve months from the 1st January next following the date of commencement; or
  2. is not a Kenya citizen but is otherwise eligible to be licensed, to hold any auction of a specialized nature by reason of his or her knowledge and experience in conducting such auction.

(Section 12)

Section 12(1) provides that an application for a licence shall be made in the prescribed form and forwarded to the Board together with the prescribed fee while section 12(2) gives the Board power in considering the application to demand for additional information as it considers necessary.

Section 12(3) gives the Board authority to issue auctioneers licence subject to the Act and payment of fee and which license shall be in prescribed form, while section 12(4) provides that such licences shall be classified in a manner prescribed.

Section 12(5) provides that the licence shall be valid for 12 months unless revoked.

But a licence shall be deemed valid and in force on application for its renewal.

Auctioneer’s identification card (Section 13)

Section 13(1) requires the Board to issue a licensed auctioneer with an identification card containing the full names and address of the licensed auctioneer and the classification of his or her licence, while 13(2) requires the licensed auctioneer to wear identification card at all times when conducting auctioneer’s business within the meaning of the Act.

Section 13 (3) stipulates that an identification card issued to a licensed auctioneer under the section shall be incidental to the licence and shall be subject to renewal, revocation or suspension by the Board.

(Section 14).

The conditions are;

  1. 14 (1) A licence issued under the Act shall not be transferable.
  2. 14(2) A licensed auctioneer shall carry on business in his or her own name or in the name of a firm all of whose partners are licensed auctioneers:
  3. Provided that such licensed auctioneer or firm of auctioneers may employ a licensed auctioneer who shall nevertheless continue to be personally accountable to the Board.
  4. 14(3) The liability of a licensed auctioneer, in relation to the conduct of this auctioneers business, shall be unlimited.
  5. 14(4) Subject to subsection (5), before the grant of a licence, the applicant shall, if so required in any rules made under the Act, give security in such form and amount as may be prescribed as assurance for the faithful discharge of his duties.
  6. 14 (5) Notwithstanding the provisions of subsection (4), the Board may dispense with the requirement of that subsection with respect to an auctioneer intending to enter into full time employment with a licensed auctioneer or firm of auctioneers, if such requirements have been met by his or her intended employer.
  7. 14(6) Except as may otherwise be provided by law, a licence under this Act shall not authorize any person to deal in or sell (either on account of or for the benefit of himself/herself or of any other person) anything the dealing or sale of which is restricted to persons duly licensed or authorized in that behalf:
  8. Provided that it shall not be necessary for an auctioneer to take out a licence for the sale of liquor, television, radio or video sets or other items seized in the execution of a court decree or in distress for rent.
  9. 14(7) In addition to the conditions set out in this section, the Board may impose any conditions it may consider necessary on a licence and may add to, substitute or vary such conditions.
  10. 14(8) A person who breaches any of the conditions set out in this section, or any condition imposed by the Board under subsection (7) commits an offence.

(Section 15)

  1. Section 15(1) provides conditions with respect to sole proprietor auctioneers. They include a licensed auctioneer who—
    1. carries sole proprietorship business; or
    2. is the sole surviving partner in a firm of auctioneers, shall, within ninety days of being licensed, nominate for approval by the Board, two licensed auctioneers who shall be responsible for winding up his business in the event of his death or the revocation of his licence.
  2. Section 15(2) provides that a licensed auctioneer may, with the approval of the Board, at any time change his nominees under section 15 (1).
  3. Section 15 (3) provides that if a licensed auctioneer fails to meet the requirements of section 15 (1) within the prescribed period, the Board shall suspend the auctioneer’s licence and the licence shall remain so suspended until the auctioneer meets the said requirements.
  4. Section 15(4) provides that on death or the revocation of the licence of an auctioneer, the licensed auctioneers nominated under the section shall, on direction by the Board proceed to wind up the auctioneer’s business: Provided that where no action is taken within thirty days of the Board’s directions, the Board may nominate one or more licensed auctioneers to wind up the business and may take such further steps as may be necessary to assist in such winding up.

(Section 16)

Section 16(1) provide for renewal of auctioneers licence by the Board for 12 months while section 16(2) sets outs requirement for such an application to the Board. It requires that the application shall—

(a) be in a prescribed form accompanied with the prescribed fees;

(b) be lodged atleast one month prior to the expiry of the licence; and

(c) be considered in accordance with the provisions of eligibility and licence.

(Section 17)

Section 17(1) sets out the grounds which the Board may refuse to grant or renew a licence. They are if it is satisfied that—

(a) the information in the application is false or untrue in any material particular;

(b) the applicant does not meet any of the requirements for the issue or renewal of a licence.

Section 17 (2) demands the Board on refusing to grant or renew a licence, to immediately notify

the applicant in the prescribed form, specifying the reasons for such refusal.

(Section 18)

  1. Section 18 (1) stipulates that grounds/reasons for revoking of licence by Board. They are if—
    1. it discovers that the licensed auctioneer intentionally made a false or untrue statement in the application for the license;

    2. any event occurs rendering the licensed auctioneer ineligible to hold a licence under the Act;

    3. the licensed auctioneer’s business is wound up or dissolved;

    4. the licensed auctioneer breaches any condition attached to the licence; or

    5. if the licensed auctioneer fails to comply with any of the provision of the Act or any relevant rules

  2. Section 18 (2) excludes the application of section 9 of the Probation of Offenders Act (Cap. 54) in the section.
  3. Section 18 (3) requires the Board to serve a notice of revocation in a prescribed form where it intends to revoke a licence while section 18 (4) further demands that the said notice should be served at least 21 days before the date of the intended revocation and shall specify the grounds for revocation.
  4. Section 18(4) further requires the Board to consider any representations made to it in writing by the licensed auctioneer whose license is intended to be revoked and further directs the Board to take ensure fairness in exercise of its powers under the section.
  5. Section 18 (5) states that the revocation of a licence shall take effect from the date of service of a notice under section 18 (4) if served personally to the auctioneer and 7 days after posting if done via registered post.
  6. Section 18(6) requires the Board within 14 days of revocation of licence to publish the affected auctioneers name in the Gazette and in one local daily newspaper circulating in the area where the auctioneer carries on business.
  7. Section 18 (7) on the other hand requires an auctioneer whose licence is revoked to immediately surrender the licence to the Board and shall not be eligible to hold a licence under the Act for a period of five years starting from the effective date of the revocation.

Suspension of Licence (Section 19)

Section 19 (1) provides that the Board may suspend a licence for a period not exceeding six months if—

  1. the licensed auctioneer is charged with any offence involving fraud, dishonesty, immorality, violence or malicious damage to property;
  2. having received a complaint against a licensed auctioneer under section 24 in respect of his conduct in executing court orders or in distraining, the Board considers it appropriate to suspend the licence pending further investigation of the complaint; or
  3. in the execution of his duties, the licensed auctioneer has acted in a manner incompatible with his or her status as an officer of the court.

Section 19(2) stipulates that where a licence is suspended, the Board shall serve a suspension notice in the prescribed form on the licensed auctioneer personally or through registered post, specifying the reason for the suspension.

Section 19(3) provides that the suspension of a licence shall take effect from the date of service of a notice under section19 (2) if served personally on the licensed auctioneer or 7 days from date of posting if by registered post.

Court may order revocation or suspension of licence (Section 28)

Section 28 (1) gives the Court power in imposing penalty on a licensed auctioneer for an offence under the Act to revoke or suspend licences if the situation warrants such as step, and section 28 (2) requires the court to notify the Board of such a step immediately.

(Section 20)

Section 20 (1) demands the Board to keep a register of all licences issued under the Act and enter the following details in the license—

  1. the full names and identity card number of the auctioneer;
  2. the place of business in respect of which the licence is granted;
  3. the district or districts to which the licence relates;
  4. the date of expiry of the licence;
  5. particulars of any amendment to the licence;
  6. particulars of any revocation or suspension of the licence;
  7. any other particulars the Board may require to be recorded.

Section 20(2) provides for access of the register of licence for inspection by any person during working hours and on payment of the prescribed fee.

But the following persons may inspect the register without payment of any fees, person who is—

(a) a member of the police force or a public officer acting in the course of his duty; or

(b) authorized in writing by the Board.

(Section 21)

  1. Section 21 (1) demands that the date, time and place of every sale by auction be advertised in the prescribed manner and such sale to take place on the date, at the time and at the place so advertised.
  2. Section 21(2) provides that where any movable or immovable property is put up for sale by auction in lots, each lot shall prima facie be deemed to be the subject of a separate contract of sale.
  3. Section 21(3) requires statement in particulars or conditions of any sale by auction of any property of whether such sale shall be subject to a reserve price or not or whether a right to bid is reserved.
  4. Section 21(4) goes on to provide that if it is stated that the sale be without reserve, then it shall
  5. unlawful for the seller or any person employed by him or her to bid at such sale, or for the auctioneer to take knowingly any such bidding: Provided that if it is stated that the sale shall be subject to a right for the seller to bid, then it shall be lawful for the seller or for any person acting on his or her behalf to bid at such auction.
  6. Section 21(5) provides that if it is stated that the sale will be subject to a reserve price as regards any one or more lots, it shall be lawful for the seller or any person acting on his or her behalf to give one bid for each such lot and no more.
  7. Section 21(6) provides that if the seller or any person acting on his or her behalf bids at any sale contrary to any of the provisions of the section, any purchaser may refuse to fulfill his or her purchase:
  8. Provided that the highest bona fide bidder shall be entitled, if s/he shall so elect, to have the property at the price offered by him or her.
  9. Section 21 (7) prohibits any auctioneer from making a bid either on behalf of himself/herself or as agent for any other person unless on making such bid, he or hse announces that it is his/her bid.
  10. Section 21(8) allows any bidder to retract his or her bid at any time before the sale is complete.
  11. Section 21(9) creates any offence for any person who knowingly—
    1. receives or makes any bid contrary to the provisions of the section; or
    2. makes a bid which s/he cannot honour or is fraudulent, or is intended to avoid a valid sale which is subject to the bid.
  12. Lastly Section 21(10) provides that where a person convicted of an offence under the section is a licensed auctioneer, s/he shall, in addition to any other penalty imposed, be liable to having her or his licence revoked.

(Section 22)

Section 22(1) provides that a licensed auctioneer making any sale other than an auction of attached property shall, unless it is otherwise agreed between him or her and the seller, be entitled to sue for, recover and discharge all sums due in respect of the sale.

Section 22(2) on the other hand provides that a licensed auctioneer making any sale, unless it is otherwise agreed between him or her and the seller, shall be liable to the due payment to the seller of the net proceeds of all sales of property within fifteen days of the sale.

(Section 23)

The duties are provided under this section. It provides that a licensed auctioneer shall—

(a) act at all times in a manner befitting an officer of the court and shall ensure that his or her employees, servants or agents act likewise;

(b) act in accordance with prescribed rules when repossessing, attaching, storing or selling any property pursuant to the provisions of any written law or contract;

(c) maintain such books, accounts, records or other documents as may be prescribed and furnish the same to the Board at such time and in such manner as may be prescribed.

(Section 24)

Section 24(1) provides that a complaint by any person against a licensed auctioneer of misconduct such as disgraceful or dishonourable conduct can be made to the Board within a period of one year after the occurrence of the event giving rise to the complaint.

Section 24 (2) stipulates that the complaint should be in the form of an affidavit of the complainant setting out the allegations of misconduct together with a prescribed fee.

Section 24(3) requires Board to give the licensed auctioneer accused of misconduct an opportunity to file an affidavit in reply to the allegations and to appear before it. It further requires the Board to furnish him with a copy of the complaint, and of any evidence in support thereof, and shall give him an opportunity of inspecting any relevant document not less than seven days before the date fixed for the hearing:

Provided that where in the opinion of the Board the complaint does not disclose any prima facie case of misconduct, the Board may at any stage of the proceedings, dismiss the complaint without requiring the licensed auctioneer to whom the complaint relates to answer any allegation made against him or her and without hearing the complaint.

Section 24(4) provides that after hearing the complainant and the licensed auctioneer, and considering the evidence adduced, the Board may order that the complaint be dismissed if no proof of misconduct is established or if it is established, the Board may order—

(a) that the licensed auctioneer be admonished; or

(b) that the auctioneer’s licence be suspended for such period, not exceeding six months as the Board thinks fit; or

(c) that the auctioneers licence be revoked; or

(d) that such condition or conditions as it deems appropriate be attached to the auctioneer’s licence; or

(e) that the licensed auctioneer pay a fine not exceeding one hundred thousand shillings; or

(f) that the licensed auctioneer pay compensation not exceeding one hundred thousand shillings to the person damnified by his misconduct; or

(g) that the auctioneer be disqualified from holding an auctioneer’s licence for such period as the Board thinks fit; or

(h) such combination of the above orders as the Board thinks fit.

Section 24(5) gives power to the Board to make order as to the payment by any party of any costs or witness’ expenses and as to the expenses of the Board or the members who are involving in hearing the complaint, while section 24 (6) provides that such order of the Board can be filed with a subordinate court and shall upon service of the notice of filing upon the licensed auctioneer, be enforceable as an order of the subordinate court.

(Section 25)

Section 25(1) provides that appeals from the Board shall lie in the High Court within 30 days of service of the decision, which will be done by giving notice of appeal to the Registrar setting out the grounds of appeal within thirty days after the giving by him or her of the notice.

Section 25(2) provides that the decision of the High Court pertaining the appeal shall be final.

(Section 26)

Section 26(1) provides that subject to any other law, a person who suffers any special or general damages as a result of unlawful or improper exercise of any power by a licensed auctioneer shall be entitled to recover any damages directly suffered by him or her from the auctioneer by action:

Provided that nothing in the section shall—

(a) prevent the auctioneer from claiming contribution or indemnity from any other person;

(b) limit the damages recoverable under any other written law.

Rules (Section 30)

The empowers the Chief Justice to make Rules for the better carrying out of the provisions of the Act and in particular, such rules may provide for—

  1. the manner of issue, amendment, renewal, revocation and suspension of licenses;
  2. the duties of licensed auctioneers when attaching, repossessing, storing or selling property under the provisions of any written law or contract;
  3. the duties of licensed auctioneers when acting as officers of the court, subject to the provisions of any other written law;
  4. the accounts and records to be kept by licensed auctioneers;
  5. the procedure for disciplining licensed auctioneers;
  6. the forms to be used, the fees payable by and the remuneration of licensed auctioneers; and
  7. the training of auctioneers.

1. The Board shall meet at least once every three months.

2. A meeting of the Board shall be held in date and time decided by Board, or in the absence of such a decision or occasion on which the chairman in consultation with the secretary shall decide that a meeting is necessary, on a date and at a time determined by the chairman.

3. The chairman shall, on the application of at least four members, convene a special meeting of the Board.

4. Unless three-quarters of the total membership of the Board otherwise agree, at least fourteen days written notice of every meeting of the Board shall be given to every member of the Board.

5. The quorum for the conduct of a meeting of the Board shall be—

(a) in the case of a meeting to consider a matter other than a disciplinary matter, six members; or

(b) in the case of a meeting to consider a disciplinary matter, three members:

Provided that in each case at least one member shall be a qualified lawyer.

(a) The chairman shall preside at every meeting of the Board at which is present but in the absence of the chairman from a meeting, the Board shall elect one of the advocates appointed under section 3(1) (d) who shall, with respect to that meeting and the business transacted thereat, have all the powers of the chairman.

(b) Where the Secretary to the Board is unable to attend a meeting of the Board, the Board shall appoint one of the members appointed under section 3(1)(d) to serve as Secretary with respect to that meeting.

7. Unless a unanimous decision is reached, a decision on any matter before the Board shall be by a majority of votes of the members present and in the case of an equality of votes, the chairman or the person presiding shall have a casting vote.

8. Subject to paragraph 5, no proceedings of the Board shall be invalid by reason only of a vacancy among the members thereof.

9. For the purposes of any application or complaint made to it under this Act, the Board may administer oaths or affirmations, and the complainant and the licensed auctioneer to whom a complaint relates, and an applicant making any application to the Board may take out a summons to give evidence or to produce documents, but no person shall be compellable under any such summons to produce any document which he could not legally be compelled to produce at the trial of a suit.

10. All proceedings before the Board shall be deemed for the purposes of Chapter XI of the Penal Code (Cap. 63), to be judicial proceedings and for the purposes of Chapter VIII of the Evidence Act (Cap. 80) to be legal proceedings.

11. All instruments made by and all decisions of the Board shall be signified under the hand of the chairman and the secretary.

12. The Board shall cause minutes of all proceedings of meetings of the Board to be entered in books kept for that purpose.

13. Except as provided in this Schedule, the Board shall regulate its own procedure.

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