Auctioneers take banks to court over fee tussle

One of the businessmen lifts up his number to make his bid as the Kenya Revenue Authority (KRA) kicked off the exercise to auction overstayed goods at the Port of Mombasa with a stern warning to cartels to keep off the exercise, June 14, 2016. [File, Standard]

Auctioneers lobby, the National Association of Kenya Auctioneers (Naka) has dragged banks to court over claims of undercutting and illegal charges.

The association, in a case filed against Kenya Bankers Association (KBA), claims lenders have encouraged auctioneers to undercut and introduce illegal fee schedules, which they argue have stirred malpractices by their members.

In the case filed before Commercial Court Judge David Majanja, the auctioneers argue banks, landlords and insurers have been issuing illegal orders to either repossess, attach or sell properties in the name of competitive prices.

"At all material times relevant to this suit, the first defendant (KBA) members have illegally issued instructions, repossessed, advertised and sold loan securities without the involvement of the plaintiff’s members, prescribed an illegal fees schedule and encouraged undercutting,” the lobby argued.

“The defendants have been illegally underpaying, advertising for the sale, repossessing, storing and dealing with the charges and mortgaged facilities.” The auctioneers have sued Co-operative Bank, Family Bank, NCBA and SBM.

Naka has also dragged landlords and insurers to court through Kenya Landlords and Tenants Association and Association of Kenya Insurers. The auctioneers are seeking orders that they and their agents have no powers to effect distress whenever there is a default or a court order or even sell materials obtained from loan defaulters.

It has also sued Kenya National Chamber of Commerce and Industry. Naka claims all activities by its members should be pegged on the auctioneers’ rules and regulations.

According to the regulations, an auctioneer will charge Sh1,000 to receive a court warrant or a letter of instructions.

They also charge clients Sh4,000 where no property is found to attach or where the chattels are less than Sh4,000.

For items above Sh4,001 and Sh100,000, an auctioneer will get 10 per cent of the value of the item.

The percentage reduces to five per cent for properties worth Sh100,001 and Sh1 million. Anything above Sh1 million is charged two per cent.

Naka sought the suspension of all instruction letters issued by the banks, landlords and insurers if they fail to meet the requirements of the Auctioneers Act.

While denying the claims, banks, insurers and landlords said the case was incompetent and should be struck out.

Justice Majanja refused to issue the orders sought, noting that they would prejudice the case before it is heard.

“Since I did not grant those orders prior to the hearing of this application, it is not necessary to consider the injunction since they would ordinarily lapse at the delivery of this ruling,” the judge ruled.