Point in Time
Act No: No. 5 of 1996
Act Title: AUCTIONEERS
[ Date of commencement: 15th August, 1997. ]
[ Date of assent: 16th October, 1996. ]
Arrangement of Sections
1.
Short title

This Act may be cited as the Auctioneers Act, 1996.

3A.
Board to be a body corporate.

The Board shall be a body corporate with perpetual succession and a common seal and shall, in its corporate name, be capable of —

(a)

suing and being sued;

(b)

taking, purchasing or otherwise acquiring, holding, developing or disposing of movable and immovable property;

(c)

borrowing or lending money; and

(d)

doing or performing all such other things or acts, which may lawfully be done by a body corporate.

[Act No. 11 of 2017, Sch.]

5.
Powers of the Board

The Board shall have such powers as are necessary or expedient for the proper discharge of its functions under this Act.

6.
Meetings and procedure of the Board

The conduct and regulation of the business and affairs of the Board shall be as provided for in the Schedule, but subject thereto, the Board may regulate its own procedure.

8.
Revenue and expenditure
(1)

The expenses of the Board shall be defrayed out of moneys provided by Parliament for that purpose.

(2)

All fees and other moneys received by the Board shall be paid into the Consolidated Fund.

9.
Prohibition against unlicensed auctioneers
(1)

No person shall, in Kenya, carry on the business of an auctioneer unless he holds a valid license issued by the Board under this Act.

(2)

A person who contravenes the provisions of subsection (1) commits an offence and shall on conviction be liable to a fine not exceeding one hundred thousand shillings, or to imprisonment for a term not exceeding two years, or to both.

12.
Licensing of auctioneers
(1)

An application for a licence shall be made in the prescribed form and shall be forwarded to the Board together with the prescribed fee.

(2)

In considering the application, the Board may require the applicant to supply such additional information in support of the application as it may consider necessary.

(3)

The Board may, subject to the provisions of this Act and to the payment of the prescribed fee, issue a licence in the prescribed form to the applicant.

(4)

Licences issued by the Board shall be classified in such manner as may be prescribed.

(5)

A licence issued under this section shall, unless earlier revoked, be valid for twelve months next following the date of issue:

Provided that where an application for its renewal is made, the licence shall be deemed to continue in force until the application for its renewal is determined.

13.
Auctioneer’s identification card
(1)

In addition to the licence, the Board shall issue to a licensed auctioneer an identification card in permanent form, bearing the full names and address of the licensed auctioneer and the classification of his licence.

(2)

A licensed auctioneer shall, at all times while conducting auctioneer’s business within the meaning of this Act, wear his identification card.

(3)

An identification card issued to a licensed auctioneer under this section shall be incidental to the licence and shall be subject to renewal, revocation or suspension by the Board.

16.
Renewal of licence
(1)

The Board may, on application by a licensed auctioneer, renew a licence for a further period of twelve months.

(2)

An application under this section shall—

(a)

be made in the prescribed form and forwarded to the Board together with the prescribed fee;

(b)

be lodged with the Board at least one month prior to the expiry of the licence; and

(c)

be considered in accordance with the provisions of sections 10 and 12.

17.
Refusal to grant or renew licence
(1)

The Board may refuse to grant or renew a licence if it is satisfied that—

(a)

the information contained in the application therefor 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.

(2)

Where the Board refuses to grant or renew a licence, it shall forthwith notify the applicant in the prescribed form, specifying the reasons for such refusal.

19.
Suspension of licence
(1)

The Board may suspend a licence for a period not exceeding six months if—

(a)

the licensed auctioneer is charged with any offence involving fraud, dishonesty, immorality, violence or malicious damage to property;

(b)

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

(c)

in the execution of his duties, the licensed auctioneer has acted in a manner incompatible with his status as an officer of the court.

(2)

Where a licence is suspended, the Board shall serve a notice of suspension in the prescribed form on the licensed auctioneer personally or through registered post, specifying the reason for the suspension.

(3)

The suspension of a licence under this section shall take effect from the date of service of a notice under subsection (2) if served personally on the licensed auctioneer or, if sent through registered post, on a date seven days after the date of posting.

21.
Auction sales
(1)

The date, time and place of every sale by auction shall be advertised in the prescribed manner and such sale shall take place on the date, at the time and at the place so advertised.

(2)

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)

It shall be stated in the particulars or conditions of any sale by auction of any property whether such sale shall be subject to a reserve price or not or whether a right to bid is reserved.

(4)

If it is stated that the sale be without reserve or to that effect, then it shall not be lawful for the seller or any person employed by him 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 behalf to bid at such auction.

(5)

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 behalf to give one bid for each such lot and no more.

(6)

If the seller or any person acting on his behalf bids at any sale contrary to any of the provisions of this section, any purchaser may refuse to fulfill his purchase:

Provided that the highest bona fide bidder shall be entitled, if he shall so elect, to have the property at the price offered by him.

(7)

No auctioneer shall make a bid either on behalf of himself or as agent for any other person unless on making such bid, he announces that it is his bid.

(8)

A bidder may retract his bid at any time before the sale is complete.

(9)

A person who, knowingly—

(a)

receives or makes any bid contrary to the provisions of this section; or

(b)

makes a bid which he cannot honour or is fraudulent, or is intended to avoid a valid sale which is subject to the bid,

commits an offence.

(10)

Where a person convicted of an offence under this section is a licensed auctioneer, he shall, in addition to any other penalty imposed, be liable to having his licence revoked.

22.
Recovery of charges by auctioneer
(1)

A licensed auctioneer making, any sale other than an auction of attached property shall, unless it is otherwise agreed between him and the seller, be entitled to sue for, recover and discharge all sums due in respect of the sale.

(2)

A licensed auctioneer making any sale, unless it is otherwise agreed between him 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.

23.
Duties of auctioneers

A licensed auctioneer shall—

(a)

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

(b)

act in accordance with such rules as may be prescribed 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.

25.
Appeals
(1)

A person aggrieved by a decision of the Board under this Act may, within thirty days after receipt by him of written notice of such decision, appeal against the decision to the High Court by giving notice of appeal to the Registrar thereof setting out the grounds of appeal within thirty days after the giving by him of the notice.

(2)

The decision of the High Court on an appeal under this section shall be final.

26.
Right to recover damages from auctioneer
(1)

Subject to the provisions of any other written law, a person who suffers any special or general damages by the unlawful or improper exercise of any power by a licensed auctioneer shall be entitled to recover any damages directly suffered by him from the auctioneer by action:

Provided that nothing in this 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.

27.
General penalty

A person convicted of an offence under this Act for which no other penalty is specified shall be liable to a fine not exceeding one hundred thousand shillings, or to imprisonment for a term not exceeding two years, or to both.

28.
Court may order revocation or suspension of licence
(1)

A court in imposing a penalty on a licensed auctioneer for an offence under this Act or under any other written law may, if in the opinion of the court the offence is of such nature as to warrant the suspension or revocation of the auctioneer’s licence, order the suspension or revocation of the licence.

(2)

The court shall forthwith notify the Board of every order under subsection (1).

29.
Acquittal to bar to disciplinary proceedings

The acquittal of a licensed auctioneer of an offence shall not prejudice the Board’s power to take disciplinary action against the auctioneer in accordance with the provisions of this Act.

30.
Rules

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

(a)

the manner of issue, amendment, renewal, revocation and suspension of licenses;

(b)

the duties of licensed auctioneers when attaching, repossessing, storing or selling property under the provisions of any written law or contract;

(c)

the duties of licensed auctioneers when acting as officers of the court, subject to the provisions of any other written law;

(d)

the accounts and records to be kept by licensed auctioneers;

(e)

the procedure for disciplining licensed auctioneers;

(f)

the forms to be used, the fees payable by and the remuneration of licensed auctioneers; and

(g)

the training of auctioneers.

31.
Repeal of Cap. 20 and Cap. 526

The Court Brokers Act (Cap. 20) and the Auctioneers Act (Cap. 526) are repealed.

32.
Transitional

No person shall carry on the business of an auctioneer after the 31st December next following the date of commencement of this Act unless he holds a valid licence under this Act:

Provided that an auctioneer who—

(a)

had a licence valid until the 31st December of the previous year; and

(b)

being eligible, has applied for renewal of the licence for the ensuing year but has not been notified of the Board’s decision thereon,

may carry on business within the terms of his previous licence until the application for renewal is determined.

33
Amendment of Cap. 23

Section 3 of the Law of Contract Act (Cap. 23) is amended by deleting subsection (4) and inserting the following new subsection—

“(4) Subsection (3) shall not apply to a contract made in the course of a public auction by a licensed auctioneer within the meaning of the Auctioneers Act, 1996 nor shall anything in that subsection affect the creation or operation of a resulting, implied or a constructive trust”.

34.
Amendment of Cap. 293

The Distress for Rent Act (Cap. 293) is amended—

(a)

by deleting the word “bailiff” wherever it occurs and substituting therefor the words “licenced auctioneer”;

(b)

in section 2

(i) by deleting the definition of “approved valuer” and substituting therefor the following new definition—
(ii) by inserting the following new definition in proper alphabetical sequence—
(c)

in section 3(1) by deleting the words “Subject to the provisions of this Act” and inserting the words “Subject to provisions of this Act and any other written law”;

(d)

in section 4

(i) by deleting the words “ten days” in subsection (1) and inserting the words “fourteen days”;
(ii) by deleting the words “the ten days” in subsection (2) and inserting the words “seven days after the distraint”;
(iii) by inserting immediately after the words “public auction”, the words “by a licensed auctioneer”;
(iv) by deleting the words “the ten days notice” in subsection (3) and inserting the words “seven days after the distraint”;
(v) by deleting the words “ten days” in subsection (4) and inserting “fourteen days”;
(e)

in section 6(1)—

(i) by deleting the words “ten days” wherever they occur and inserting the words “fourteen days”;
(ii) by inserting immediately after the word “may” in the second line, the words “instruct a licensed auctioneer to”;
(f)

in section 9

(i) by inserting immediately after the word “chattels”, in the eleventh line, the words “instruct a licensed auctioneer to”;
(ii) by deleting the word “landlord or lessor or other person entitled to arrears of rent” and inserting the words “a licensed auctioneer”;
(g)

by repealing section 11 and inserting the following new section—

11. Landlord may break into house to seize goods fraudulently secured therein

Where any goods or chattels fraudulently or clandestinely conveyed or carried away by a tenant or a lessee or his servant or agent, or other person or persons aiding or assisting therein are kept in any house, barn, stable, out house, yard, close or place locked up, fastened or otherwise secured so as to prevent the goods or chattels from being taken and seized as distress for arrears of rent, a licensed auctioneer acting on behalf of the landlord or lessor may, in the day time, break into such place and may take and seize the goods or chattels for the arrears of rent as he might have done by virtue of this Act if those goods or chattels had been put in an open field or place.

(h)

in section 12(1)—

(i) by deleting the words “a lessor or landlord or his bailiff” in the first line and inserting “a licensed auctioneer acting on behalf of the lessor or landlord”;
(ii) by deleting the words “the lessor or landlord hires or otherwise” in the twelfth line and inserting the words “the lessor or landlord or a licensed auctioneer hires or otherwise”;
(i)

in section 15, by deleting the words “and no more”;

(j)

by repealing section 8;

(k)

in section 25(1), by deleting the words “by the landlord”.

35.
Amendment of Cap. 300

Section 77 of the Registered Land Act is amended—

(a)

in subsection (1), by inserting immediately after the words “public auction”, the words “through a licensed auctioneer”;

(b)

by inserting the following new subsection immediately after subsection (1)—

“(1A) In subsection (1), the expression “licensed auctioneer” has the meaning assigned to it in section 2 of the Auctioneers Act, 1996.”

36.
Amendment of Cap. 323

Section 33 of the Agricultural Finance Corporation Act (Cap. 323) is amended—

(a)

in subsection (1), by inserting immediately after the words “public auction” the words “through a licensed auctioneer”;

(b)

by inserting the following new subsection—

“(5) In subsection (1), the expression “licensed auctioneer” has the meaning assigned to it in section 2 of the Auctioneers Act, 1996.”

37.
Amendment of Cap. 533

The Estate Agents Act (Cap. 533) is amended—

(a)

in subsection (3) of section 2 by inserting the following new paragraph—

“(f) by a licensed auctioneer selling immovable property or any interest therein by auction”;

(b)

by inserting the following new subsection—

“(4) In subsection (3)(f), the expression “licensed auctioneer” has the meaning assigned to it in section 2 of the Auctioneers Act, 1996.”

SCHEDULE

[Section 6, Act No. 2 of 2002, Sch.]

MEETINGS AND PROCEDURE OF THE BOARD
1.

The Board shall meet at least once every three months.

2.

A meeting of the Board shall be held on such date and at such time as the Board shall decide or, in the absence of such decision or on any 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.

6.

(a)

The chairman shall preside at every meeting of the Board at which he 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.