[2022] KECA 168 (KLR)

Bell & another v I. L. Matterello Limited (Civil Appeal 72 of 2019) [2022] KECA 168 (KLR) (18 February 2022) (Judgment)

Neutral citation: [2022] KECA 168 (KLR)

Republic of Kenya

In the Court of Appeal at Mombasa

Civil Appeal 72 of 2019

RN Nambuye, HM Okwengu & F Sichale, JJA

February 18, 2022

Between

Michael Bell

1st Appellant

Ashburton Grove Limited

2nd Appellant

and

I. L. Matterello Limited

Respondent

(Being an appeal against the Judgment and Decree of the High Court of Kenya (P. J. Otieno, J.) dated 29th August, 2018 in Mombasa HCCC No. 39 of 2015)

Judgment

1. This is a first appeal arising from the judgment of the High Court of Kenya at Mombasa Commercial Division, in Mombasa HCC No. 39 of 2015, (P. J. O. Otieno, J.) delivered on 29th August, 2018. Background:

2. The background to this appeal is that the respondent sued the appellants vide a plaint dated 17th March, 2015. In it, the respondent complained about appellants’ breach of the tenancy agreement executed between them over property known as Shop No. 12 and 13 at Plot No. Kwale/Diani Beach/1588 (the suit premises). The appellant was alleged to have irregularly and unlawfully broken into the said premises, closed them without any notice to the respondents and in the process caused the respondent’s goods and tools of trade to be detained therein. This conduct on the part of the appellants resulted in occasioning loss and damage to the respondent as more particularly set out in its plaint. In consequence, the respondent prayed for: a permanent injunction to restrain the appellants from moving or dealing with the respondent’s goods in the suit premises; a declaration that the illegal and unlawful entry by the appellants in the demised premises was in total breach of the contract executed between them; an order that: the respondent was entitled to payment of both general and punitive damages; the appellants to compensate the respondent the sum of Kshs.40,000. 00 per day for loss of profit; no rent was due and payable by the respondent to the appellants as of 6th February, 2015; the illegal and unlawful actions meted by the appellants against the respondent amounted to constructive eviction; for re-entry; and, any other relief that the court may deem fit to grant in the circumstances of the case plus costs of the suit and related expenses.

3. The appellants filed a joint statement of defence and counterclaim dated 6th May, 2015. Save for conceding existence of a tenancy contract between them and the respondent, they denied the respondent’s claim in toto and put them to strict proof thereof. They asserted that their entry into the demised premises was not only legal but also justified, firstly, for purposes of mitigating losses and damage to the suit property by the respondent and or its agents and, secondly, to secure payment of outstanding rent and other unpaid bills.

4. In their counterclaim, they sought against the respondent Kshs.617,190. 00 cumulatively as costs of repairs of damage caused to the suit premises by the respondent during its tenure as a tenant.

5. Parties joined issue on their respective opposing pleadings. The respondent called two witnesses in support of its claim, namely, Capra Dossi Corrado who gave evidence as PW1, basically reiterating the averments in the plaint and the contents of his witness statement as fully adopted by him as his evidence. In the main, the respondent maintained that the invasion and closure of the demised premises by the appellants was illegal and unlawful. He also added that as at the time events complained of were triggered, the appellants still held the Kshs.270,000. 00 paid to them as rent deposit and that there were no outstanding dues to be paid by the respondent to the appellants either as rent or other utility bills. The second witness, Jane Kanini Wambua, reiterated the averments in the plaint and PW1’s evidence.

6. Michael Bell, the 1st appellant gave evidence as DW1. He basically reiterated the averments in their counterclaim.

7. On cross-examination, he conceded that no inventory was taken on the condition of the premises before the respondent took possession upon the signing of the tenancy agreement between them. He admitted that he had no receipts for amounts claimed as allegedly incurred as costs for repairs. He conceded that: the tenancy contract provided for a two months’ termination notice; the respondent paid electricity bills on 4th February, 2015 to the total tune of KShs.26,147. 00 to cover the period up to 5th February, 2015; he locked the premises without a court order; the demand letter from his advocates to the respondent did not mention damage to the premises and lastly, that he had not refunded to the respondent KShs.270,000. 00 paid to them as rent deposit.

8. Richard Woodall, DW2 admitted that he was the author of the unsigned document tendered in evidence and that he merely confirmed the assessment of the alleged damage to the appellants’ premises by the respondent as presented to him by the appellants without conducting his own independent assessment. It was also the basis for his claim for professional fees as an architect. He had nothing to show either that he was either a registered architect or a registered member of professional architects in Kenya.Trial Court’s Determination:

9. At the conclusion of the trial, the trial Judge analyzed the record, identified issues for determination, and considering these in light of the rival positions before him, proceeded to draw out conclusions thereon.

10. On re-entry, the Judge took into consideration clause 5 of the tenancy agreement, section 75 of the Land Act, the demand letter from the appellants’ advocate addressed to the respondent dated 5th February, 2015, the case of Gusii Mwalimu Investment Co. Ltd vs. Mwalimu Hotel Kisii Ltd [1996] eKLR for the proposition we find prudent torephrase as “the law cannot allow a landlord to simply walk into the demised premises in a bid to exercise his right of re-entry and obtain possession extra judicially”, and also the case of Charles Mwangi Kamau vs. Mohamed Hassan Sheikh Noor; MBS HCC No. 2 of 2005 for theholding/proposition which may also be rephrased as follows: “a court of law has no mandate to assist a party retain a position of advantage that he obtained through planned acts amounting to contemptuous disregard to the laws of the land.” and made findings cumulatively, firstly, that the tenancy agreement executed between the respective parties herein though not registered, was binding on the parties. The said contract provided explicitly that the appellant had a right of re-entry in instances where there is proven rent arrears of two (2) months. As per the contents of the appellant’s advocate’s letter of demand dated 3rd February, 2015 rent had been fully paid up to 31st January, 2015, while the rent for February, 2015 was not yet due. The Judge therefore concluded that appellants’ re-entry into the suit premises and in the manner the same was executed was not only unlawful but also evidently in breach of the law. Secondly, pursuant to section 75 of the Land Act, a landlord’s right of re-entry only crystallizes after service of at least thirty (30) days’ notice, a prerequisite not complied with by the appellants.

11. Thirdly, the letter issued by the appellants to the respondent demanding for rent for February, 2015 was erroneously issued as what the appellants purportedly termed as rent was in fact an electricity bill calculated at KShs.30,348. 00 and which had in fact been deducted from the respondent’s rent deposit of Kshs.270,000. 00 then held by the appellant. On account of the totality of the above, the Judge allowed KShs.2,000,000. 00, for punitive damages after factoring in an element of exemplary damages. There is also mention by the Judge that these were also inclusive of compensation for any losses occasioned to the respondent as a result of the irregular and unlawful closure and disruption of its business by the appellants.

12. The appellants’ counterclaim was rejected by the Judge for the following reasons: the amount claimed for repairs of KShs.409,690. 00 differed with the amount indicated in the unsigned document tendered in evidence by DW2 of KShs.432,190. 00 as the estimated cost of repairs; and that the claim fell into the category of a special claim which the appellants had failed to prove for failure to tender receipts for costs for the alleged repairs. The estimates given by DW2 were rejected for his admission that he had replicated what the appellants had presented to him as costs of repairs without carrying out his own independent estimates. Secondly, he had nothing to show that he was an architect. The claim for rent was rejected because going by the content of the appellants’ advocates’ letter of 5th February, 2015 rent had been fully paid up to 31st January, 2015 while rent for February, 2015 had not yet fallen due. The appellants’ claim for electricity bills to the tune of KShs.47,000. 00 was rejected, firstly, because the amount indicated in the unsigned document tendered in evidence by DW2 of KShs.35,000. 00 differed with that demanded in the appellants’ advocates’ demand letter of 3rd February, 2015 of KShs.30,348. 00. The customer’s statement tendered in evidence by the appellants and listed as document number 7 in their list of documents indicated explicitly that as at 4th February, 2015 there was a payment in the sum of KShs.49,860. 00 which settled the power bill in full.

13. The claim for DW2’s professional fees was rejected because it was firstly based on an unsigned document, and secondly, his own admission that he had nothing to prove that he was either a qualified architect entitled to charge professional fees or that he belonged to the Architects’ Professional Society. The KShs.270,000. 00 paid to the appellant by the respondent as rent deposit was allowed under the prayer “any other relief as the court may deem fit to grant”.Trial Court’s Rendition:

14. On the totality of the above assessment and reasoning, the Judge rendered himself as follows: 51. i)Judgment be and hereby entered for the plaintiff as follows:-a.A declaration that the defendant did unlawfully and wrongful re-enter the let premises on the 6/2/2015 by looking out the plaintiff.b.An award of punitive and exemplary damages in the sum of KShs.2,000,000. 00 for unlawful and wrongful re-entry.c.An order that the defendants do refund to the plaintiff the sum of KShs.270,000. 00 paid to the defendant as deposit of rent.d.A declaration that no rent was due for payment to the 2nd defendant on the 6th February, 2018 when it unlawfully re-entered and having so re-entered the plaintiff was relieved of all obligations under the lease immediately upon re-entry.e.The defendant’s counter-claim is dismissed for want of proof and for being unmerited.f.The sums awarded in (b) and (c) above shall attract interest at court rates from the date of this judgment till payment in full.g.The plaintiff gets the costs of the suit as well as that of the counter claim to be paid by the defendants.

52. It is so ordered.

Appellants’ Submissions:

15. The appellants were aggrieved and are now before this court on a first appeal raising seven grounds of appeal in their memorandum of appeal dated 30th April, 2019. These were subsequently condensed into four (4) issues in the appellants’ written submissions dated 20th July, 2020, namely, that the High Court:i.Lacked jurisdiction to determine the dispute.ii.Erred in awarding a prayer not pleaded.iii.Misapplied itself on the award of damages.iv.Failed to appreciate the evidence as advanced by the parties.

16. In support of issue number (i), the appellants rely on section 5 of the Civil Procedure Act Cap 21 Laws of Kenya which provides that a court’s jurisdiction may be limited where it is either expressly or impliedly barred, Articles 162(2) and 165(5) of the Constitution of Kenya, 2010 establishing the ELC and the High Court; and the Supreme Court decision in the case of Republic vs. Karisa Chengo & 2 Others [2017] eKLR for the guiding principle that both the ELC and the High Court have different and distinct jurisdictions hence none can handle matters meant for the other; section 13 of the Environment and Land Court Act which donates jurisdiction to the ELC; and lastly, the case ofNational Bank of Kenya Limited vs. Leonard Gathuoi Kamweti[2019] eKLR in which the Court of Appeal approved the decision in the case of Jamal Salim vs. Yusuf Abdulahi Abali & Another [2018] eKLR for the holding, inter alia,that “jurisdiction of a court to entertain any matter either exists or does not exist. Neither can it be acquiesced nor granted by consent of the parties and that an objection to jurisdiction can be raised at any stage of the proceedings” and submits that the trial court lacked jurisdiction to handle a matter which according to them fell for adjudication before the ELC notwithstanding that the appellants in their counterclaim had acquiesced to the jurisdiction of the trial court. The entire proceedings giving rise to this appeal are therefore a nullity and should be so declared.

17. On issue number (ii), the appellants rely on the case of Independent Electoral and Boundaries Commission & Another vs. Mutinda Mule & 3 Others [2014] eKLR in which the Court of Appeal faulted the trial Judge for the failure to pay heed to the guiding and crystallized principle that parties are bound by their pleadings; and the case of Caltex Oil (Kenya) Limited vs. Rono Limited [2016] eKLR in which the courtexpressed itself therein, inter alia, that: “pleadings are a shield and a sword for both sides. They have the potential of informing each party what they expect in the trial before the court. If a party wishes the court to determine or grant a prayer it must be specifically pleaded and proved. The pleadings are a precursor for a party to lead evidence in satisfaction of the prayers he seeks to be granted in his favour. Where no such prayer is pleaded in a specific and somewhat particularized manner, the party is not entitled to benefit and the court has no jurisdiction to whimsically grant those orders.” and faults the Judge for granting a refund of KShs.270,000. 00 paid by the respondent to the appellants as rent deposit and exemplary damages none of which had either been pleaded or prayed for.

18. On all the cumulative sub-issues in issue number (iii), the appellants rely on the Court of Appeal decision in the case of Provincial Insurance Company East Africa Ltd vs. Mordekai Mwanga Nandwa [1995-1998] 2 E. A 288 as approved in the High Court case of Equity Bank Ltd vs. Gerald Wang'ombe Thuni[2015] eKLR for the principle that special damages must be specifically pleaded and particularly proven; the case of Kemfro Africa Limited t/a Meru Express Services [1976] & Another vs. Lubia & Another [1985] eKLR for the principle that guides an appellate court in deciding whether to interfere or otherwise with an award of damages by the court appealed from and submits that the impugned award of KShs.2,000,000. 00 for both punitive and exemplary damages was highly excessive.

19. The appellants have invited this Court to distinguish the highly aggravating circumstances that informed the court’s award of KShs.800,000. 00 damages in Azim Sameja t/a Business 2000 vs. Lakhamshi Virpal Shah & 5 others [2021] eKLR heavily relied upon bythe trial Judge with those that triggered the litigation giving rise to this appeal. Instead, this Court is urged to adopt, apply and be guided by the approach taken by this Court in the case of Municipal Council of Eldoret vs. Titus Gatitu Njau [2020] eKLR in which this Court reduced an award of damages of KShs.15,000,000. 00; for unlawful entry and occupation of a property to KShs.500,000. 00; the case of Milka Muthoni Wagolo vs. County Government of Kirinyaga & 2 Others [2017] eKLR in which the court awarded KShs.500,000. 00 as exemplary and punitive damages; CKK Estate [1973] Limited vs. County Government of Kiambu & Another[2018] eKLR in which the court awardedKshs.250,000. 00 as exemplary and punitive damages for wrongful entry and trespass; Mary Nduta Ngugi vs. Beatrice Ngelesai & Another [2019] eKLR in which the court awarded KShs.100,000. 00 as exemplary and punitive damages. The appellant therefore invites this Court to interfere with the trial Judge’s award and scale it down to an amount between KShs.100,000. 00 to KShs.250,000. 00 should the court find basis for affirming liability against the appellants. They otherwise pray for this Court to allow the appeal with costs.Respondent’s Submissions:

20. In response to grounds 1, 6 and 7 of the appeal the respondent contends that all the reliefs granted by the trial Judge in their favour, were not only pleaded and prayed for in their plaint, but were also well founded both on the evidence tendered at the trial and the law as properly appraised, appreciated and applied by the Judge. They should therefore be affirmed accordingly by this Court.

21. In response to grounds 2 and 4 of the appeal, the respondent submits, firstly, that no rent was due and payable by the respondent to the appellants as at 6th February, 2015 when the appellants illegally, unlawfully, irregularly and in blatant disregard of the terms of the tenancy agreement locked the respondent out of the suit premises.Secondly, there is also no basis for faulting the Judge for ordering a refund of the rent deposit of KShs.270,000. 00 as there was no justification for the appellants retaining the same especially when the Judges rejection of their counterclaim was based on sound reasoning given by the Judge in the impugned judgment.

22. In response to ground 3 and 5 of the appeal on want of jurisdiction in the trial court to determine the suit, this Court is invited to dismiss these grounds of appeal, firstly, for the appellant’s failure to raise this issue at the trial in order to accord both the parties and the court an opportunity to express themselves thereon. Secondly, on their position that the trial court was properly seized of the matter adjudicated before it.

22. On case law, the respondent relies on the following authorities Standard Chartered Financial Service Limited & Another vs. Manchester Outfitters (Suiting Division) Limited (now known as King Wollen Mills Limited & 2 Others [2019] eKLR for the holding/proposition which may be rephrased, inter alia, that “issues falling for consideration on appeal are those pleaded, raised and ruled upon at the trial”; Independent Electoral and Boundaries Commission & Another vs. Stephen Mutinda Mule & 3 Others [supra]; and the case of Rashid Kaluma Okedi and Another vs. Shamshad Ahmed Yakub & Another [2019] eKLR both for the holding, inter alia, “that where the tenancy had been interrupted either by notice or constructive eviction any party aggrieved with such a course has recourse to the courts in the normal manner” and, lastly,Co-operative Bank of Kenya vs. Patrick Kangethe Njuguna & Others [2017] eKLR, on the jurisdiction of the ELC as stipulated for both in the constitution and the ELC Act which according to the respondent is confined to issues to do with land and not commercial like those that formed the substratum of the litigation resulting in this appeal.

24. This is a first appeal. We remind ourselves that, our duty as a court of first appeal donated by section 29(1) of this Court’s Rules is to re-evaluate, re-analyze and re-consider the evidence adduced before the trial court and draw out our own conclusions thereon. In Peters v. Sunday Post Ltd [1958] EA 424, the Court held that;“Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide”See also Gitobu Imanyara & 2 others vs Attorney General [2016] eKLR, wherein this Court stated that;“[A]n appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect”

25. We have considered the record in light of the above mandate. The issues that fall for our consideration in the determination of this appeal are the same as those condensed by the appellants in their written submissions which we fully adopt as issues for determination in this appeal. We also adopt the record as assessed above as basis for our determination of the issues adopted above.

25. On want of jurisdiction, we fully adopt the position taken by the court in the case of Owners of the Motor Vessel “Lilian S. vs. Caltex Oil (Kenya) Ltd [1989] eKLR on the threshold for sustaining a plea of want of jurisdiction namely:By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognisance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. ....... Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given;”

27. Article 162(2)(b) donated mandate to Parliament to establish the Environment and Land Court to adjudicate over issues touching on the use and occupation or the title to land. It was pursuant to the above mandate that Parliament enacted the Environment and Land Court Act No. 19 of 2011, Rev. 2012. The said Act establishes the ELC Court under section 4 thereof. The mandate of the court is spelt out in section 13(2). It provides:“13(2) In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes―a.relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;b.relating to compulsory acquisition of land;c.relating to land administration and management;d.relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; ande.any other dispute relating to environment and land.”

28. We have accordingly construed the above provision on our own and considered it in light of the rival positions herein and find nowhere in the said provision donating to the ELC mandate to adjudicate over issues touching on a landlord and tenancy relationship over use of premises leased out for purposes of running a commercial enterprise namely, a bar and restaurant. In the result, we find and hold that the trial court was properly seized of the issues in controversy as between the rival parties before it and rightly determined these on their merit.

29. On the appellants’ complaint against the trial court’s award of both the KShs.270,000. 00 paid to them by the respondent as rent deposit and exemplary damages both of which had not been specifically pleaded and prayed for, we stand guided by the decision in the case of Captain Harry Gandy vs. Caspar Air Charters Limited [1956] 23 E.A.C.A. 139 wherein the predecessor of this Court was explicit that:“Cases must be decided on the issues on the record; and if it is desired to raise other issues they must be placed on the record by amendment.”while in Odd Jobs vs. Mubia [1970] E.A 476 the predecessor of the court added that:“A court may base its decision on an unpleaded issue if it appears from the cause followed at the trial that the issue has been left to the court for decision.”

30. See also the position taken by this Court in Ole Nganai vs. Arap Bor [1983] KLR 233 wherein the court was explicit that a court has no power to grant orders neither pleaded nor prayed for by the parties; and the case of Galaxy Paints Co. Ltd V Falcon Guards Ltd (2000) EA 885 wherein it was held, inter alia, that:“The issue of determination in a suit generally flowed from the pleadings and a trial court could only pronounce judgment on the issues arising from the pleadings or such issues as the parties framed for the court’s determination. Unless pleadings were amended, parties were confined to their pleadings. Gandy vs. Caspair (1956) EACA 139 and Fernandes vs. People Newspapers Ltd (1972) EA 63. ”

31. Applying the above parameters to the rival positions herein on this issue, our take thereon is that indeed neither the amount of Kshs.270,000. 00 forming the deposit of rent paid by the respondent to the appellant at the execution of tenancy agreement between them nor a claim for exemplary damages featured both in paragraph 10 of the plaint in which the respondent laid out its claim against the appellants and paragraph fifteen (15) in which they laid out the reliefs they were seeking from the court. It is however evident from our appraisal of the record that the amount of KShs.270,000. 00 featured in the evidence adduced by both sides.

32. In his examination in chief, PW1 had this to say: “At that time, he had my deposit of KShs.217,000. 00”, while DW1 in his cross examination had this to say: “To date I have not refunded the deposit ofKShs.270,000. 00. ” The approach the Judge took in resolving the above issue when confronted as above was first of all to invoke the inherent power of the court which according to the Judge was necessary for ends of justice to be met to the parties before him on this issue and secondly, to invoke the general prayer “any other relief that the court may grant” as basis for granting the said relief.

33. The principles of law that guide a court of law when invoking and applying its inherent power for ends of justice to be met to the parties before the court are as crystallized by case law. See Equity Bank Limited vs. West Link Mbo Limited [2013] eKLR; and Board of Governors, Moi High School, Kabarak & Another vs. Malcolm Bell [2013] eKLR wherein this Court and the Supreme Court of Kenya variously stated inter alia that: inherent power is the authority possessed by a Court implicitly without its being derived from the Constitution or statute; and second, that inherent power is an endowment to the Court such to enable it regulate its internal conduct, and ensure that its mode or discharge of duty is conscionable, fair and just. Those for invoking the general provision of “any other relief that the court may deem fit to grant”, were as enunciated by the predecessor of this court in the case of Rex Hotel Limited vs. Jubilee Insurance Company Limited [1972] E. A 211 as approved by this Court in Timsales Limited vs. Samuel Kamore Kihara[2016] eKLR for the holding, inter alia, that “a relief that qualifies to be awarded under the above prayer is one that is consequential to the main relief.”

34. We have considered both with regard to the above two heads of the impugned awards, namely, the factoring into the element of punitive damages pleaded and prayed for an element of exemplary damages and the special claim of KShs.270,000. 00. We find nothing in both principles that would mandate the trial court to award exemplary damages in the circumstances prevailing in the litigation that gave rise to this appeal bearing in mind the strict principles that guide the court in granting an award of exemplary damages. We therefore find basis for faulting the trial Judge for introducing the award of exemplary damages suo motu and erroneously factoring an element of it in the punitive damages awarded to the respondent. We shall bear this fact in mind when dealing with issue of the extent of either interference or otherwise with the said award as requested of us by the rival parties herein at a later stage of this judgment.

35. As for the claim for KShs.270,000. 00, we find no basis for faulting the Judge in awarding the same based on the inherent power of the court to avoid re-litigation especially upon the Judge ruling that no amount of money was found as still outstanding and owing from the respondent to the appellants. There was therefore no basis for the appellants retaining it. We also find that it was also likewise refundable under the general prayer “any other relief that the court may deem fit to grant” because it was consequential to the other claims put forth by the respondent and could have been pleaded alongside those other claims.

36. Turning to the award of punitive damages allowed by the trial court, our position is that these were prayed for by the respondent and responded to by the appellants, firstly, generally and secondly, as punitive damages in particular. Reasons as to why the Judge arrived at the quantum of the award are as already highlighted above. It is correctly submitted by the appellant that in law an award of damages by a court of law is a matter of judicial discretion by the court and which discretion must be exercised judiciously, that is to say, devoid of whim and or caprice but with reason and for ends of justice to be met to both parties. See Ringera Ag, J.A (as he then was) inGithiaka vs. Nduriri [2004] 1 KLR 67. Principles that guide an appellate court in the exercise of its mandate when invited to interfere with a trial court’s exercise of discretion in awarding damages have also been crystallized by a wealth of case law. We find it prudent to highlight a few as parameters for our determination on this issue.

37. In Ephantus Mwangi & Another vs. Duncan Mwangi [1981 – 1988] I KAR 278, - an appellate court is not bound to accept and act on the trial court’s findings of fact if it appears clearly that the trial court failed to take account of particular circumstances or probabilities material to an estimate of evidence, b) a Court of Appeal will not normally interfere with a finding of fact by the trial court, unless it is based on no evidence or on a misapprehension of the evidence or the Judge is shown demonstrably to have acted on wrong principles in reaching the findings he did; Kiambu Dairy, Farmers Co-operative Society Limited vs. Rhoda Njeri & 3 Others [2018] eKLR, - the extend of an award of compensatory damages lies in the discretion of the trial court and interference therewith on appeal must be approached with a measure of circumspection and well settled principles; Kemfro Africa Limited vs. Lubia & Another [No. 2] [1987] KLR 30 as approved in Peter M. Kariuki vs. Attorney General[2014] eKLR, - before interference with the quantum of damages awarded by a trial court the appellate court must be satisfied that either the judge in assessing the damages took into account an irrelevant factor, or left out of account a relevant one or short of the above, the award is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages payable; Johnson Evans Gicheru vs. Andrew Martin & Another[2005] eKLR, - this Court on appeal will be disinclined to disturb the finding of the trial Judge as to the amount of damages awarded by the trial court merely because if it had tried the case itself in the first instance, it would have awarded either a higher or lesser sum, (b) justification for reversing a trial Judge on an award of damages only applies where the court is convinced either that the Judge acted upon some wrong principle of law or that the amount awarded was so extremely high or so very low as to make it an entirely erroneous estimate of the damage to which the aggrieved party is entitled; Sumaria & Another vs. Allied Industries Limited [2007] 2 KLR I, - an appellate court should be slow in moving to interfere with a finding of fact by a trial court unless it was based on no evidence or based on a misapprehension of the evidence or that the Judge had been seen demonstrably to have acted on a wrong principle in reaching the finding he/she did; Butt vs. Khan [1981] KLR 349, - an appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate, (b) it must be shown that the Judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low; Total (Kenya) Limited formerly Caltex Oil (Kenya) Limited vs. Janevans Limited [2015] eKLR, - whether theclaim is in contract or tort, the only damages to which an aggrieved party is entitled to is the pecuniary loss; (b) the accruing awardable damages is aimed at putting the aggrieved party into as good a position as if there had been no such breach or interference. In other words, in the position it/he/she was in with regard to the object trespassed upon before the onset of such a trespass; (c) it is meant to cushion the aggrieved party against the expenses caused as a result of the trespass and loss of benefit over the period of the duration of the trespass.

38. We have applied the parameters set in the above highlighted case law to the rival position herein with regard to the appellant’s complaint against the quantum of award for punitive damages. We find basis for interference. Our reasons are as follows: firstly, the Judge factored in the said award the element of exemplary damages which had not been pleaded or prayed for. As we have already ruled above, there was no known principle of law under which these exemplary damages could have been introduced by the court suo motu and factored in those claimed under the head of punitive damages, notwithstanding the Judge’s remarks that the appellants’ conduct of flouting the law with impunity was deplorable.

39. Secondly, it is evident from the record that the Judge also erroneously factored in the said award, an element for loss of earnings allegedly occasioned to the respondent as a result of the appellants’ irregular and unlawful closure of the respondent’s business which in our view falls into the category of special claims. The law required these to be specifically pleaded and particularly proved. Indeed, the plaint is explicit that these were in fact pleaded by the respondent but discounted by the Judge for reasons given in the judgment. Having been so discounted, it was erroneous for the Judge to introduce them through what in our view would qualify to be termed as “the back door” and award them as a component of punitive damages. Thirdly, taking all the relevant circumstances surrounding the issue and possible inconvenience and hardship suffered by the respondent, the compensation awarded by the trial Judge would definitely qualify as one that is inordinately high and therefore warrants the Court’s interference. The only issue left for us to ponder is to what extent.

40. We have considered the comparable awards suggested to us by the appellants and the peculiar circumstances prevailing herein namely, that no rent was outstanding, owing and therefore payable by the respondent to the appellant as at the time the appellants unlawfully and irregularly locked the respondent’s business. Secondly, the appellant also held the rent deposit in excess of the amount allegedly owed by the respondent to them in terms of the demand laid. In our view, an award of KShs.500,000. 00 would be sufficient compensation as punitive damages in the circumstances which we accordingly award.

41. Turning to the counterclaim, we find that the reasons given by the Judge for rejecting it were well founded both in fact and in law. We therefore reject the appellants’ invitation for us to overturn that position.

42. In the result, the appeal partially succeeds. For avoidance of doubt, we make orders as follows:1. The appeal against the factoring into the punitive damages award of an element of exemplary damages is allowed.2. The award of KShs.2,000,000. 00 as punitive and exemplary damages is set aside and substituted with an award of KShs.500,000. 00 as punitive damages only.3. The award of KShs.270,000. 00 to the respondent as refund for rent deposit is affirmed.4. The trial court’s order dismissing the appellants counterclaim is affirmed.5. The appellant will have ¼ costs offset against the respondent’s award of costs against them both on appeal and at the trial.

DATED AND DELIVERED AT NAIROBI THIS 18TH DAY OF FEBRUARY, 2022. R. N. NAMBUYE...............................JUDGE OF APPEALHANNAH OKWENGU...............................JUDGE OF APPEALF. SICHALE...............................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR