https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12282

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NAKURU** **CIVIL APPEAL NO. 150 OF 2023** **EDWIN WACHIRA..................................................APPELLANT** **VERSUS** **NGOTHO COMMERCIAL AGENCIES LIMITED...........................................................RESPONDENT** (Being an appeal from the Judgment and Decree of the Resident Magistrate Court at Nakuru, Hon. D.M. Macharia, delivered on 6th June 2023 in Nakuru CMCC No. E500 of 2022) **JUDGMENT** 1. The right to property is a fundamental right enshrined in Article 40 of the Constitution of Kenya, 2010. It is a right that lies at the very heart of human dignity and economic freedom. No person shall be arbitrarily deprived of their property, and where such deprivation occurs, it must be in accordance with the law. The law of distress for rent, codified in the Distress for Rent Act, Cap 293, is one such legal mechanism that permits a landlord to recover rent arrears without the need for a court order. However, this remedy is not a license for lawlessness. It is a statutory power that must be exercised strictly in accordance with the law, with due regard to the rights of the tenant. 2. The Appellant, EDWIN WACHIRA, was a tenant of the late Agnes Kamwiti in a residential house situate at Kenlands Estate, Nakuru. The Respondent, NGOTHO COMMERCIAL AGENCIES LIMITED, was the managing agent of the premises. On or about 21st April 2022, while the Appellant was away on official duties, the Respondent, acting on instructions from the 1st Defendant, broke into the Appellant's house and removed his household goods and work equipment. The reason proffered was rent arrears amounting to Kshs. 30,000. 3. The Appellant contends that this action was illegal and unlawful, as no court order had been obtained, no due process had been followed, and no proper notice had been served. The Respondent maintains that the action constituted a lawful distress for rent, conducted in accordance with the Distress for Rent Act, Cap 293. The trial court (Hon. D.M. Macharia, RM) rendered its judgment on 6th June 2023, dismissing the Appellant's claim and allowing the Respondent's Counterclaim. 4. Aggrieved by that decision, the Appellant has lodged this appeal. As this is a first appeal, this Court has a duty to re-evaluate the evidence on record, analyze it afresh, and arrive at its own independent conclusion, while bearing in mind that the trial court had the advantage of seeing and hearing the witnesses testify. The Court of Appeal in ***Selle v Associated Motor Boat Co. Ltd [1968] EA 123*** held: ***"An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts are that it 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 allowance in that respect."*** 5. The Appellant, being aggrieved by the judgment of the trial court, filed a Memorandum of Appeal dated 5th June 2023 raising the following grounds of appeal: 1. ***THAT the learned trial magistrate erred in fact in finding that the Appellant had not proved his case on a balance of probability.*** 2. ***THAT the learned trial magistrate erred in law in finding that there was due process of distress that had been initiated whereas the correct and legal procedure had not been established by the Respondent and hence the trial magistrate failed to find that the Appellant had been illegally evicted.*** 3. ***THAT the learned trial magistrate erred in law and in failing to find that the Appellant had established a proper case for a mandatory injunction hence the trial magistrate erred in law in dismissing the Appellant case without ordering release of the Appellant's household goods that had been removed by the Respondent.*** 4. ***THAT the learned trial magistrate erred in law and fact, in finding there were costs for distress process which the Respondent had not proved and the trial magistrate erred in condemning the Appellant in meeting the auctioneer's costs which had not been proved as required by law.*** 5. ***THAT the learned trial magistrate erred in law and fact, in finding that the Respondent had established the counter-claim hence allowing the same.*** 6. ***THAT the learned trial magistrate erred in law in taking into consideration extraneous matter to the detriment of the Appellant.*** 6. The Appellant therefore prayed that the judgment delivered on 6th June 2023 be set aside and the Appellant's claim in the lower court be allowed with costs and the counter-claim by the Respondent be dismissed. 7. The Appellant filed written submissions dated 2nd December 2025 in support of the appeal. Counsel for the Appellant, Njeri Njagua & Co., submitted that the trial magistrate erred in finding that there was due process of distress. It was argued that the Appellant was never served with an eviction notice or a court order requiring him to vacate the premises for being in arrears of Kshs. 30,000. Further, it was submitted that there was no notice of proclamation or an order for attachment for the Appellant's household items and work equipment. Counsel contended that the Respondent did not follow due procedure required by law in evicting the Plaintiff, hence the same amounted to an illegal eviction. 8. On the issue of mandatory injunction, counsel submitted that the trial court erred by failing to grant the same. Reliance was placed on the case of ***Vehicle and Equipment Leasing Ltd v Jamii Bora Bank Ltd [2017] eKLR*** where the court held that an "unusually strong and clear" case is required for a mandatory injunction, and the risk of injustice if the injunction is not granted must outweigh the risk if it is granted. Counsel further relied on ***Locabail International Finance Ltd v Agro-Export and Another [1986] 1 ALL E.R. 901*** for the principle that a mandatory injunction may be granted where the case is clear, the act done is simple and can be easily remedied, or where the defendant has attempted to "steal a march" on the plaintiff. 9. On compensation, counsel submitted that the unlawful eviction destroyed the Appellant's only source of livelihood since his work equipment was seized. Reliance was placed on ***Arshad Khan v Dhiiren Hair Designer Limited & Another [2009] eKLR*** where the court held that a court will not hesitate to reinstate a tenant unlawfully evicted if the eviction was done in a high-handed, oppressive manner and with impunity. Counsel further relied on ***Harry Kitulo Mumo v Municipal Council of Mombasa & another [2018] eKLR*** where the court awarded Kshs. 2,000,000 for wrongful eviction. Counsel prayed for Kshs. 1,000,000 as fair compensation. 10. On the issue of auctioneer's costs, counsel submitted that it was unjust for the court to condemn the Appellant to pay costs that had not been proved, and prayed that the same be set aside. 11. The Respondent opposed the appeal and filed written submissions dated 17th November 2025 . Counsel for the Respondent, Muchiri Gathecha & Co., submitted that the distress was lawful and conducted in accordance with the Distress for Rent Act, Cap 293. It was argued that the landlord lawfully instructed a licensed auctioneer to levy distress, a notice of distress was left on the premises, an inventory of the goods seized was prepared, and the tenant was afforded the statutory 14-day redemption period. 12. On the issue of mandatory injunction, counsel submitted that the same is an exceptional remedy and the Appellant has not satisfied the strict test. Reliance was placed on ***Maher Unissa Karim v Edward Oluoch Odumbe [2015] KEHC 4029*** and ***Kenya Breweries Ltd v Washington Okeyo (2002) EA 109*** for the principle that mandatory injunctions are only granted in clear cases and on strict proof. Counsel further submitted that the Appellant has not shown that damages are inadequate to compensate the loss if any, and that the Appellant's own conduct (non-payment of rent) is relevant to the balance of convenience. 13. On the issue of compensation, counsel submitted that the Appellant's claim for uncertain compensation is not supported by evidence of special damages in the trial record. It was further submitted that the Appellant's failure to pay rent contributed to the actions taken by the Respondent. 14. On the issue of the appellate court's role, counsel submitted that an appellate court will not interfere with a trial court's discretionary exercise unless it is shown that the trial court misdirected itself in law, misapprehended material facts, took irrelevant considerations into account, omitted relevant considerations, or that the exercise of discretion was plainly wrong. 15. The Respondent therefore prayed that the appeal be dismissed in its entirety with costs. 16. Having considered the material on record, the following issues arise for determination: 1. ***Whether the distress for rent was conducted in accordance with the law.*** 2. ***Whether the service of notices on Gladys Njambi was valid.*** 3. ***Whether the Appellant was entitled to a mandatory injunction.*** 4. ***Whether the Counterclaim was properly allowed.*** 5. ***Whether the trial magistrate considered extraneous matters.*** 6. ***What orders should be made on costs.*** 17. The power to levy distress for rent is a creature of statute. It is a powerful remedy that allows a landlord to recover rent arrears without the need for a court order. However, with great power comes great responsibility. The law prescribes strict procedures that must be followed to the letter. To exercise the remedy without due regard to these procedures is to abuse it. 18. Section 3(1) of the Distress for Rent Act (Cap 293) provides that any person having rent or rent service in arrear and due upon a grant, lease, demise or contract shall have the same remedy by distress for the recovery of rent or rent service as is given by the common law of England in a similar case. Section 4(1) further provides: ***"Where any goods or chattels are distrained for rent reserved and due upon a grant, demise, lease or contract, and the tenant or owner of the goods or chattels so distrained does not, within fourteen days after distress has been made, and notice thereof (stating the cause of the making of the distress) left on the premises charged with the rent distrained for, pay the rent together with the costs of the distress, or replevy them, with sufficient security to be given to the licensed auctioneer according to law, the person distraining may lawfully sell on the premises or remove and sell the goods and chattels so distrained..."*** 19. The law requires that a notice, stating the cause of the distress, be left on the premises. While personal service on the tenant is not strictly mandated, the notice must be such that the tenant is apprised of the distress and given the opportunity to redeem the goods by paying the arrears within fourteen days. More fundamentally, the distress must be a lawful exercise of a right. It cannot be exercised against the wrong person. 20. The law on this point was restated by the High Court in ***Royal Gardens Hospital v Ebrahim Omenyi Ambwere & another [2018] eKLR.*** The court held: ***"The Distress for Rent Act and the common law do not require that the same be founded on a court order. Indeed, according to the Halsbury's Laws of England, Third Edition Vol. 12 page 115, leave of court to distrain must be obtained before the right to distrain can be exercised only where the tenancy is controlled and where the tenant is a serviceman not serving under regular engagement or dependents of such as service man. All what is required is that the same be carried out by a certified bailiff. Certification of bailiffs, according to section 18, is by the court, but that should not be read to mean the bailiff acts upon the court having decreed the levy of distress. All what the bailiff, in Kenyan lingo that would a court broker or auctioneer, would need are instructions or a warrant from the landlord to carry out the exercise. The warrant or instructions is necessary as it gives the bailiff the right which accrues to a landlord, or the person employing or instructing him, to enter the premises for the purpose of levying distress for rent. Where entry is resisted there may be need to obtain court orders to access the premises and to seize the chattels. It should be emphasized that court action should only be necessary in such circumstances. The only other requirement is that the bailiff serves a notice on tenant of the amounts for which distress is being levied, and the notice should include a computation of authorized fees, charges and expenses. At common law no such notice was necessary as the tenant was presumed to know what was in arrear regarding the property he occupied."*** 21. In the instant case, the Respondent's own documents betray the fatal defect in their case. The demand letter dated 24th March 2022 is addressed to "EDWIN KANGETHE" (D. Exhibit 3). The Proclamation Form dated 6th April 2022 is addressed to "EDWIN KANGETHE" (D. Exhibit 4). The Appellant's name is EDWIN WACHIRA. 22. These documents speak for themselves. The distress was levied against a person who is not the Appellant. This is not a minor clerical error; it is a fundamental illegality. One cannot lawfully distrain upon the goods of a person who is not the debtor. The Respondent has failed to explain this discrepancy. The trial court erred by not interrogating this glaring issue. A court of law cannot sanction an action that was, on the face of the evidence, exercised against the wrong person. 23. Further, the demand letter and the proclamation form both refer to the landlord as "DAVID KAMWETI". The 1st Defendant in the lower court before her demise and subsequent withdrawal of a case against her was AGNES KAMWITI. The Respondent has not explained who David Kamweti is or what his interest in the property was. This casts a long shadow of doubt over the entire process. A distress for rent can only be levied for the benefit of the landlord, and if the person named is not the landlord, the distress is invalid. 24. The evidence on record is clear. The Respondent's own documents establish that the distress was not conducted against the Appellant. The Respondent has no one to blame but itself for this elementary error. I find that the trial court fell into error when it failed to consider this fatal defect. 25. The Respondent's case hinges on the claim that Gladys Njambi was the Appellant's wife and was therefore properly served. The Appellant has denied this under oath, and the Respondent failed to call Gladys Njambi as a witness to confirm her identity or authority. Despite the court's attempts to summon her, she did not respond. The Respondent's witnesses merely testified that Gladys told them she was the wife. 26. The trial court reasoned that Gladys' identity was "immaterial" because she was an adult present at the premises. With respect, this is a misdirection. The Distress for Rent Act requires that notice be left on the premises. However, the notice must be a proper notice. If a notice is left with a person who has no authority to receive it, it is not valid service. 27. In any event, the notice that was allegedly "left" was addressed to "Edwin Kangethe." Even if Gladys was served, she was served with a document intended for a different person. The entire premise of the Respondent's case is unsupported by direct evidence. The trial court should have drawn an adverse inference against the Respondent for failing to call this crucial witness. 28. The law on illegal distress was aptly captured in ***Joseph Nyaga Karingi v Nathan Muhatia Pala t/a Muhatia Pala Auctioneers & another [2009] eKLR***. In that case, the High Court held: ***"In view of the fact that there were several suits pending before the Business rent Tribunal as stated above, it was an abuse of process to proceed to levy distress without the leave of the court. The conclusion is that the action that took place on 27/7/04 was unlawful."*** The court proceeded to award the plaintiff double the value of the goods distrained under Section 8 of the Distress for Rent Act. 29. Similarly, in ***Benerdette Magoma Nyakabaria v Bonareri Asiago & 3 others [2016] eKLR***, the High Court held that a levy of distress and eviction carried out without due regard to the due process of the law, without issuance and/or service of requisite notices, and without procuring a court order to authorize the eviction and distress, was illegal. The court granted a mandatory injunction compelling the restoration of the applicant's movable goods. 30. While the Respondent is correct that a court order is not strictly required for distress, the action must still comply with the statutory framework. The failure to serve proper notices and the confusion over the identity of both the tenant and the landlord render the entire process unlawful. The trial court erred in holding otherwise. 31. The law on mandatory injunctions is well settled. A mandatory injunction is an exceptional remedy that is granted in clear cases where special circumstances exist. As stated in ***Locabail International Finance Ltd v Agro-Export and Another [1986] 1 All E.R. 901,*** a mandatory injunction may be granted where the case is clear and the act done is a simple and summary one which can be easily remedied. 32. The Court of Appeal in ***Kenya Breweries Ltd v Washington Okeyo (2002) EA 109*** affirmed the principle that mandatory injunctions are only granted in clear cases and on strict proof. The court held that the threshold for mandatory injunctions is higher than that for prohibitory injunctions. 33. In the present case, the Respondent's actions were illegal. The goods were taken without proper notice and against the wrong person. The goods are still available at the Respondent's store. The act of returning the goods is simple and summary. The Appellant has suffered irreparable harm, and damages would not be an adequate remedy. The balance of convenience tilts heavily in favour of the Appellant. 34. I am guided by the decision in ***Vehicle and Equipment Leasing Ltd v Jamii Bora Bank Ltd [2017] eKLR*** where the court held that an "unusually strong and clear" case is required for a mandatory injunction, and the risk of injustice if the injunction is not granted must outweigh the risk if it is granted. In this case, the risk of injustice to the Appellant if the injunction is not granted far outweighs any inconvenience to the Respondent. I find that the trial court erred by not granting the mandatory injunction prayed for. 35. Having found that the distress was invalid, it follows that the Counterclaim for auctioneer's costs and storage fees cannot stand. The Respondent cannot benefit from its own unlawful actions. The trial court erred in allowing the Counterclaim. 36. The Appellant submitted that the trial magistrate considered extraneous matters to the detriment of the Appellant. Upon perusal of the judgment, I note that the trial magistrate stated that if landlords were to only serve tenants in person, many people would come up with devious ways to avoid distress yet the rent is unpaid. With respect, this was an unnecessary generalization that had no basis in the evidence before the court. It suggests that the trial magistrate approached the matter with a predisposition against the Appellant. This is regrettable and constitutes an error that this Court must correct. 37. Costs follow the event. The Appellant having succeeded in this appeal, he is entitled to costs in the lower court and in this appeal. See Section 27 of the Civil Procedure Act. 38. In the end, the appeal is found to be meritorious and is hereby allowed. Consequently, I make the following orders: 1. ***The judgment and decree of the Chief Magistrate's Court at Nakuru, CMCC E500 of 2022 delivered on 6th June 2023, is hereby set aside in its entirety.*** 2. ***A mandatory injunction is hereby issued compelling the Respondent to release to the Appellant all the household items and work equipment as listed in the plaint, within fourteen (14) days from the date of this judgment.*** 3. ***A permanent injunction is hereby issued restraining the Respondent from selling and/or disposing of the Appellant's household items and work equipment.*** 4. ***The Respondent's Counterclaim is hereby dismissed.*** 5. ***The Respondent shall pay the Appellant's costs in the lower court and in this appeal.*** **Dated, signed, and delivered at Nakuru this 30th day of July, 2026.** **J. K. SERGON** **JUDGE** **In the presence** Jamleck/Rutoh C/A N/A for parties