OSUNDWA: Guardians of court decrees: Why Kenya’s auctioneers need stronger judicial protection

Auctioneers exist to execute court decrees, enforcing attachments /FILE

Auctioneers exist to execute court decrees, enforcing attachments, repossessions and evictions as the judiciary’s enforcement arm, ensuring successful litigants enjoy the fruits of their judgments.

This principle has been repeatedly emphasised in judicial forums: an auctioneer is not an independent aggressor but an officer of the court acting under lawful instruction. Without effective execution, court judgments risk becoming symbolic rather than enforceable. A decree without enforcement weakens confidence in the justice system and undermines commercial certainty.

Yet a pressing question arises: at what point does the court inadvertently undermine its own decree?

A common scenario illustrates the concern. An auctioneer is instructed to execute warrants of attachment and sale. All statutory notices are issued, timelines observed and proclaimed goods are sometimes removed and placed in secure storage pending auction.

In the process, the auctioneer incurs significant operational costs—transportation, security personnel, storage charges, advertising fees, valuation services and administrative expenses.

Then, after these procedural steps and costs have been incurred, the court may issue a stay order directing the auctioneer to unconditionally release the attached goods.

Unless procedural irregularities are established, such unconditional stay orders often fail to consider the financial exposure already undertaken. The auctioneer may have acted strictly within the law, yet the order may not make provision for reimbursement of execution expenses. While the law allows for taxation of the auctioneer’s bill, this process can be lengthy, costly and administratively burdensome. Requiring auctioneers to repeatedly return to court to tax their costs consumes time and resources that could otherwise be dedicated to efficient execution of other matters.

In Kenya, the auctioneering profession is regulated under the Auctioneers Act, 1996, and supervised by the Auctioneers Licensing Board. The country has an estimated 500 to 600 licensed auctioneers operating across its 47 counties, handling thousands of matters annually. Their work spans court-decreed attachments, bank repossessions, insolvency sales, land recoveries, and government asset disposals.

The industry plays a significant but often underappreciated role in Kenya’s credit ecosystem. Financial institutions rely heavily on auctioneers to recover non-performing loans, particularly in sectors such as real estate, automotive finance and SME lending. With Kenya’s non-performing loan ratio hovering above 14 per cent in recent years, asset recovery mechanisms have become central to maintaining financial sector stability.

Globally, the auction industry is even more expansive. According to international industry reports, the global auction market—covering art, real estate, industrial equipment, automobiles and online asset sales—handles transactions valued at more than $300 billion annually.

In the United States alone, the auction industry generates an estimated $30 billion per year and supports more than 50,000 businesses. Online platforms have further accelerated growth, with digital auctions accounting for an increasing share of global transactions, especially since the Covid-19 pandemic.

While much of the global data focuses on commercial auctions, enforcement-based auctioneering remains a critical component of judicial systems worldwide. In many jurisdictions, court enforcement officers or licensed bailiffs operate under clear procedural safeguards that protect both litigants and enforcement agents. Costs incurred during lawful execution are often secured as a condition of stay or appeal to prevent undue financial harm to the enforcing officer.

This is where the Kenyan debate becomes urgent.

When unconditional stay orders are issued after lawful attachment, the auctioneer may bear unrecovered costs for months or even years. In some cases, judgment debtors exploit procedural delays to frustrate recovery, knowing that execution can be halted through interim orders. The result is prolonged litigation, increased costs for decree holders, and mounting financial exposure for auctioneers.

Such trends have broader economic implications. Efficient enforcement of contracts is a key indicator in global investment climate assessments. Investors and lenders assess not only how disputes are resolved but also how judgments are enforced. If enforcement mechanisms appear unpredictable or financially risky for officers of the court, confidence in credit recovery weakens.

This ultimately affects households, businesses, and even government revenue collection. Delays in eviction orders affect landlords and financial institutions. Delays in asset recovery affect banks’ liquidity. Delays in government recovery processes affect public finance management.

To be clear, courts retain inherent powers under Section 3A of the Civil Procedure Act to issue stay orders where justice demands. Judicial discretion remains fundamental to protecting litigants’ rights, especially where procedural irregularities are demonstrated. However, where attachment has been lawfully conducted, it would be prudent for courts to consider auctioneer costs and fees as a condition for granting stay orders.

In some judicial stations, officers already incorporate such safeguards, requiring security deposits or partial settlement of execution costs before ordering release of attached goods. Such practices strike a balance between protecting the rights of judgment debtors and safeguarding the operational viability of auctioneers.

Auctioneers are not merely commercial actors; they are instruments of judicial authority. Their role ensures that judgments translate into tangible outcomes. Strengthening procedural protections around cost recovery will not only support the profession but also reinforce the credibility of Kenya’s justice system.

In the final analysis, enforcement is the backbone of the rule of law. When court decrees are respected, markets function efficiently. When enforcement officers are protected, judicial authority remains intact. And when execution processes are predictable, economic confidence grows.

Kenya’s auctioneers stand as guardians of court decrees. It is time the system fully safeguards those who safeguard the rule of law.