This Act may be cited as the Auctioneers Act, 1996.
The Board shall have such powers as are necessary or expedient for the proper discharge of its functions under this Act.
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.
The expenses of the Board shall be defrayed out of moneys provided by Parliament for that purpose.
All fees and other moneys received by the Board shall be paid into the Consolidated Fund.
No person shall, in Kenya, carry on the business of an auctioneer unless he holds a valid licence issued by the Board under this Act.
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.
An application for a licence shall be made in the prescribed form and shall be forwarded to the Board together with the prescribed fee.
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.
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.
Licences issued by the Board shall be classified in such manner as may be prescribed.
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.
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.
A licensed auctioneer shall, at all times while conducting auctioneer’s business within the meaning of this Act, wear his identification card.
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.
The Board may, on application by a licensed auctioneer, renew a licence for a further period of twelve months.
An application under this section shall—
be made in the prescribed form and forwarded to the Board together with the prescribed fee;
be lodged with the Board at least one month prior to the expiry of the licence; and
be considered in accordance with the provisions of sections 10 and 12.
The Board may refuse to grant or renew a licence if it is satisfied that—
the information contained in the application therefor is false or untrue in any material particular;
the applicant does not meet any of the requirements for the issue or renewal of a licence.
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.
The Board may suspend a licence for a period not exceeding six months if—
the licensed auctioneer is charged with any offence involving fraud, dishonesty, immorality, violence or malicious damage to property;
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
in the execution of his duties, the licensed auctioneer has acted in a manner incompatible with his status as an officer of the court.
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.
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.
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.
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.
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.
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.
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.
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.
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.
A bidder may retract his bid at any time before the sale is complete.
A person who, knowingly—
receives or makes any bid contrary to the provisions of this section; or
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.
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.
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.
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.
A licensed auctioneer shall—
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;
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;
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.
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.
The decision of the High Court on an appeal under this section shall be final.
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—
prevent the auctioneer from claiming contribution or indemnity from any other person;
limit the damages recoverable under any other written law.
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.
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.
The court shall forthwith notify the Board of every order under subsection (1).
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.
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—
the manner of issue, amendment, renewal, revocation and suspension of licenses;
the duties of licensed auctioneers when attaching, repossessing, storing or selling property under the provisions of any written law or contract;
the duties of licensed auctioneers when acting as officers of the court, subject to the provisions of any other written law;
the accounts and records to be kept by licensed auctioneers;
the procedure for disciplining licensed auctioneers;
the forms to be used, the fees payable by and the remuneration of licensed auctioneers; and
the training of auctioneers.
The Court Brokers Act (Cap. 20) and the Auctioneers Act (Cap. 526) are repealed.
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—
had a licence valid until the 31st December of the previous year; and
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.
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”.
The Distress for Rent Act (Cap. 293) is amended—
by deleting the word “bailiff” wherever it occurs and substituting therefor the words “licenced auctioneer”;
in section 2—
by deleting the definition of “approved valuer” and substituting therefor the following new definition—
by inserting the following new definition in proper alphabetical sequence—
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”;
in section 4—
by deleting the words “ten days” in subsection (1) and inserting the words “fourteen days”;
by deleting the words “the ten days” in subsection (2) and inserting the words “seven days after the distraint”;
by inserting immediately after the words “public auction”, the words “by a licensed auctioneer”;
by deleting the words “the ten days notice” in subsection (3) and inserting the words “seven days after the distraint”;
by deleting the words “ten days” in subsection (4) and inserting “fourteen days”;
in section 6(1)—
by deleting the words “ten days” wherever they occur and inserting the words “fourteen days”;
by inserting immediately after the word “may” in the second line, the words “instruct a licensed auctioneer to”;
in section 9—
by inserting immediately after the word “chattels”, in the eleventh line, the words “instruct a licensed auctioneer to”;
by deleting the word “landlord or lessor or other person entitled to arrears of rent” and inserting the words “a licensed auctioneer”;
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.
in section 12(1)—
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”;
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”;
in section 15, by deleting the words “and no more”;
by repealing section 8;
in section 25(1), by deleting the words “by the landlord”.
Section 77 of the Registered Land Act is amended—
in subsection (1), by inserting immediately after the words “public auction”, the words “through a licensed auctioneer”;
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.”
Section 33 of the Agricultural Finance Corporation Act (Cap. 323) is amended—
in subsection (1), by inserting immediately after the words “public auction” the words “through a licensed auctioneer”;
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.”
The Estate Agents Act (Cap. 533) is amended—
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”;
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.”