The prudential guidelines by the CBK, Consumer Protection Act, Competition Act and the Banking Act do not limit the bank from advertising distrained or repossessed assets.

Again, in Hire Purchase, the Owner is permitted by law to repossess their goods and resell them, advertising is a marketing strategy towards achieving that objective.

The Banking Act at Section 51 only regulates misleading advertisement for deposits, and not any other advertisement.

Prior to an auction sale, the Auctioneers Act and rules largely guide the advertising by the auctioneers. They do not proscribe simultaneous advertising by interested parties, so long as the auctioneer meets the basic minimum.

The relevant rules directing the conduct of the auctioneer from receipt of instructions to the carrying out of the same are found at Rules 15 to 18 of the Auctioneers Rules 1997.  It is clear that the auctioneer can advertise in their website over and above the newspaper, as what is required is adequate notice to prospective bidders. The newspaper advertisement for inanimate and nonperishable goods is a must unless there is a court order to the contrary. In our understanding, the auctioneer can only dispense with advertisement over the newspapers by showing that in the circumstances of this case, he gave adequate notice to prospective bidders through one or more of the mediums specified in rule 16 (2). Rule 16 (2) states: –

16.Advertisement

(2) Except as may be ordered by a court, advertisement by an auctioneer of a sale by  auction of any property, movable or immovable, shall be by way of an advertisement in a newspaper, provided that in the case of perishable goods and livestock advertisement in a newspaper may be dispensed with if adequate notice to prospective bidders in all the circumstances can be achieved by radio or television announcement, or handbills or posters, or other means of communication.

Justice Munyao Sila stated in the case of Lydia Nyambura Mbugua v Diamond Trust Bank Kenya Limited & another [2019] eKLR that:

A public auction is preceded by an advertisement in a newspaper and is a notorious exercise which cannot be missed.

Ambrose is a civil and commercial litigator who has keen interest in commercial law, recoveries litigation, labour and employment disputes, banking law, tax law, company law, public policy and legislative development

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