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(1) establishes the Auctioneers Licensing Board whose composition shall include—
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(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.
A person is eligible for an Auctioneer’s licence if he:
A person is disqualified from obtaining an auctioneer’s licence if he:
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—
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.
The conditions are;
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(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.
it discovers that the licensed auctioneer intentionally made a false or untrue statement in the application for the license;
any event occurs rendering the licensed auctioneer ineligible to hold a licence under the Act;
the licensed auctioneer’s business is wound up or dissolved;
the licensed auctioneer breaches any condition attached to the licence; or
if the licensed auctioneer fails to comply with any of the provision of the Act or any relevant rules
Suspension of Licence (Section 19)
Section 19 (1) provides that the Board may suspend a licence for a period not exceeding six months if—
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 (1) demands the Board to keep a register of all licences issued under the Act and enter the following details in the license—
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 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.
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(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(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(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 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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