https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3239

Ideal Locations Ltd v Muthoni t/a Top Baby Mart (Environment and Land Appeal E048 of 2025) [2026] KEELC 3239 (KLR) (29 May 2026) (Judgment) Neutral citation: [2026] KEELC 3239 (KLR) Republic of Kenya In the Environment and Land Court at Mombasa Environment and Land Appeal E048 of 2025 A Ombwayo, J May 29, 2026 Between Ideal Locations Ltd Appellant and Christine Nyandia Muthoni t/a Top Baby Mart Respondent Judgment 1.This Appeal arises from a Judgment delivered by Hon. Emily M. Mwamuye at the Chief Magistrate’s Court Mombasa on 26th June 2025 in Civil Suit No E1085 of 2023. The Appellant being aggrieved by the said judgment lodged a Memorandum of Appeal dated 25th July, 2025 and listed the following grounds:1.The Learned Magistrate erred in law and fact in failing to appreciate that in line with Order 2 Rule 4 of the Civil procedure rules, that the Appellant pleaded the defence of limitations of actions through its Amended reply to defence and counterclaim dated the 9th of August 2024.2.The Learned Magistrate erred in law and fact in failing to determine the plea of limitations of actions pleaded by the Appellant in its Amended reply to defence and counterclaim dated the 9th of August 2024 and instead dismissed the same as point of preliminary objection.3.The Learned Magistrate erred in law and fact in granting the Respondent special damages pursuant to Section 15 of the Distress for rent (CAP 293) LAWS OF KENYA despitethe same not being strictly proved.4.The Learned Magistrate erred in law and fact in failing to appreciate the application and import of Section 26 (1) of the Auctioneers Act (CAP 526) LAWS OF KENYA in the subject case.5.The Learned Magistrate erred in law and fact in failing to appreciate that the Respondent did not in line with Rule 10 of the Auctioneers rules, seek for an independent valuation of the goods attached, and therefore the valuations of goods assigned by the Auctioneer in the subject proclamation remained the lawful valuation of the goods.6.The Learned Magistrate erred in law and fact in that despite having made a finding that the Appellant was legally entitled to levy distress in order to recover rent, she adjudged the Respondent’s counter-claim to be merited on the basis that the Appellant failed to conduct an inventory of the stock attached.7.The Learned Magistrate erred in law and fact in granting prayers not sought by the Respondent vide her counterclaim. 2.A brief background to this appeal is that the Appellant filed a suit against the Respondent in the lower court in a Plaint dated 12th September, 2023 which was subsequently amended. The Appellant sought the following orders:a.Payment of the sum of Ksh 504,488.80 (Kenya Shillings Five Hundred and Four Thousand Four Hundred and Eighty-Eight Cents Eighty only).b.Costs of the suit. 3.The Respondent filed a Counter-claim dated 28th June, 2024 and sought the following orders:a.An order directing the plaintiff to pay the Defendant the sum of Kenya Shillings, One Million, Nine Hundred and Ninety-Six Thousand Six Hundred and Fifty (Kshs 1,996,650/=)b.Interest on (a) above at court rates.c.Costs of the suit. 4.The suit was heard and the trial magistrate in her judgment dated 26th June, 2025 entered judgment for the Respondents in the following terms:a.The rent arrear of Kshs 504,489/= offset from Kshs 1,996,650/=.b.The balance being Kshs 1,492,161/= to be paid by the Plaintiff as damages for illegal distress, trespass and conversion.c.Each party to bear its own costs. Appellant’s Submissions 5.Counsel for the Appellant filed submissions dated 19th January, 2026. Counsel asked the court to find merit in the grounds raised in its Memorandum of Appeal and find that the trial court erred. Counsel relied on the following cases: C.Y.O Owayo vs George Hannington Zephania Aduda T/A Aduda Auctioneers & Another [2007] KEHC 1390 (KLR), YH Wholesalers Limited vs Kenya Revenue Authority [2021] eKLR. Mwethaga vs Chris M. Gaturu T/A Crima Enterprises & 3 others (Civil Case 1353 of 1998) [2022] KEHC 14623 (KLR) and Caltex Oil (Kenya) Limited vs Rono Limited [2016] eKLR. 6.In a nutshell, the appellant submits that the learned magistrate erred when she considered the preliminary objection based on limitation which had been withdrawn and was pleaded in the amended reply to defence and defence to counter claim. Moreover, on the merit of the issue of limitation, the appellant submits that the counter claim was filed out of time. Respondent’s Submissions 7.Counsel for the Respondent filed submissions dated 26th February, 2026 and identified the following issues for determination:a.Whether the appeal meets the threshold for interference with findings of fact?b.Whether the counterclaim was statute barred?c.Whether special damages were strictly proved?d.Whether the distress and auction complied with statutory requirements?e.Whether the trial court properly exercised discretion in offsetting the sums? 8.On the first issue counsel submitted that the appeal does not meet the threshold for disturbing the trial courts finding. Counsel relied on the cases of Odera t/a AJ Odera & Associates vs Machira t/a Machira & Co Advocates [2013] KECA 208 (KLR) and Selle vs Associated Motor Boat Co [1968] EA 123 and Jabane vs Olenja [1986] KLR 661, 664. 9.On the second issue, counsel submitted that the trial court found that the Respondent’s claim arose from both a contract and a continuing tort comprising unlawful distress, trespass and conversion. Counsel submitted that the wrongful deprivation did not end on the date of proclamation and the appellant failed to prepare a lawful inventory, ignored the Respondent’s protest letter dated 1st February, 2020 and admitted to benefit from the seized stock. 10.Counsel submitted that the injury was ongoing and it is evident that the Appellant’s move to levy distress against the Respondent was founded on contract and as such the argument that the claim is time barred was misleading. Counsel relied on the cases of Maitai Wang’ombe vs Nyeri Clothing Co. Ltd [2019] KEHC 7127 (KLR) and Emmanuel Hatangimbabazi vs Commissioner of Customs & Excise [2020] KEHC 5329 (KLR). 11.On the third issue, counsel submitted that the Respondent met the threshold of strict proof and there is no basis for Appellate interference. Counsel relied on Section 107 (1) of the Evidence Act and the cases of Otieno & another vs Wamai [2024] KEHC 10647 (KLR) and Nkuene Dairy Farmers Co-op Society Ltd & Another vs Ngacha Ndeiya [2010] eKLR. On the fourth issue, counsel submitted that the judgment should be upheld as the distress and auction did not satisfy the statutory and procedural safeguards required by law. Counsel relied on the cases of Bomet Beer Distributors Ltd & another vs Kenya Commercial Bank Ltd & 4 others [2005] KEHC 2932 (KLR) and Endoros Enterprises Limited vs Wild Living Business Hub Co Ltd [2021] KEHC 9062 (KLR). On the fifth issue. Counsel submitted that the trial court’s orders on offsetting should be upheld. Reliance was placed on the case of Esther Wamaitha Njihia & others vs Safaricom Limited [2014] KEHC 6699 (KLR). Counsel asked the court to dismiss the appeal. Analysis and Determination 12.In the case of Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] e KLR, the court held as follows:“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way” 13.The first issue for determination is whether the issue of limitation of time was a preliminary objection. This court finds that the plaintiff having pleaded limitation of time in the amended reply to defence and defence to the counter-claim the issue was imbedded in the pleadings and was subject to determination on the basis of evidence adduced and not as a preliminary objection because the facts of the matter did not depict pure points of law. I agree with the appellant that limitation was to be treated as a pleaded issue and not as a preliminary objection and therefore the learned magistrate fell into error by determining the preliminary objection that had been withdrawn. 14.The second issue is whether the counter claim was time barred. It is trite law that wrongful attachment of goods constitutes an actionable tort, specifically falling under the torts of trespass to goods, conversion, or wrongful. This court finds that the suit was grounded on the tort of trespass and not contract and therefore time stopped running after the period 3 years from the date of trespass of goods. The respondent’s goods were attached in March 2020 and therefore this is the accrual of the cause of action. The counter claim was filed on the 28th of June 2024 more than 3 years after the accrual of the cause of action. 15.Section 4(2) of the Limitation of Actions Act Cap 22 Laws of Kenya states that actions based on tort must be brought within three years of the cause of action, while libel and slander claims have a 12-month limit. Courts strictly enforce this time bar unless exceptional circumstances warrant extension under Section 27. 16.In the case of Sichuan Huashi Enterprises Corp. Limited Vs Micheal Misiko Muhindi [2019] eKLR, the learned Judge cited with approval the cases of Oruta &Another vs. Nyamato [1998] KLR 590 and Divecon Ltd vs Shirinkhanu S. Samani Civil Appeal No. 142 0f 1997 as follows:“The court should formulate limitation as one of the issues for determination and decide it on evidence adduced at the trial. On this see the case of Oruta &Another vs. Nyamato [1998] KLR 590, where the court held that limitation of action:-“… could only be queried at the trial but not by… a preliminary objection… The appellant could raise the objection at the trial and the trial judge would have to deal with the matter on the evidence to be adduced at the trial.” 17.The third issue is that the Learned Magistrate erred in law and fact in that despite having made a finding that the Appellant was legally entitled to levy distress in order to recover rent, she adjudged the Respondent’s counter-claim to be merited on the basis that the Appellant failed to conduct an inventory of the stock attached. The trial court pronounced in its judgment at paragraph 62.63,64 and 65 that;62.Having not done proper inventory to assist the Court, Defendant herein is entitled to compensation. It attached the stock list report which on a balance of probabilities is better that the lack of inventory from the Plaintiff’s side to determine the value of goods and as such the Court has no choice but to rely on the stock list report.63.The amount sought in the report amounts to Ksh 1,996,650/= despite not having the invoice or proof of the said amounts. On a balance of probabilities, it is more accurate than what was provided in the proclamation.64.The Court will deduct the arrears sought by the Plaintiff of Ksh 504,488.80 cents rounded off to Ksh 504,489/= from Ksh 1,996,650/=65.The remainder being Ksh 1,492,161/= to be borne by the Plaintiff herein as compensation for the illegal distress which resulted in losses due to deprivation of her livelihood.” 18.The Respondent informed this court that the appellant failed to prepare a lawful inventory, ignored the Respondent’s protest letter dated 1st February, 2020 and admitted to benefit from the seized stock. This court has looked at the evidence on record and finds that the court correctly found that the distress was illegal. 19.However, this court finds that the figure of ksh Ksh 1,996,650 being special damages and was specifically pleaded, was not strictly proved. The Law on the need to specifically plead and prove special damages is well settled. 20.In Richard Okuku Oloo –vs- South Nyanza Sugar Co. Ltd (2013) eKLR the court stated;We agree with the learned judge that a claim for special damages must indeed be specifically pleaded and proved with a degree of certainty and particularity but we must add that, that degree and certainty must necessarily depend on the circumstances and the nature of the act complained of. In the Jivanji case (supra), a decision of this court differently constituted, it was held that the degree of certainty and particularity depends on the nature of the acts complained of. The following passage which partly quotes Coast Bus Service Limited v Murunga & Others Nairobi CA No. 192 of 1992 (ur) appears in the Jivanji case: “It is now trite law that special damages must first be pleaded and then strictly proved. There is a long line of authorities to that effect and if any were required, we would cite those of Kampala City Council vs Nakaye [1972] EA 446, Ouma v Nairobi City Council [1976] KLR 297 and the latest decision of this Court on this point which appears to be Eldama Ravine Distributors Limited and another v Chebon Civil appeal number 22 of 1991 (UR). In the latest case, Cockar JA who dealt with the issue of special damages said in his judgment: “It has time and again been held by the courts in Kenya that a claim for each particular type of special damage must be pleaded. In Ouma v Nairobi City Council [1976] KR 304 after stressing the need for a plaintiff in order to succeed on a claim for specified damages. Chesoni J quoted in support the following passage form Bowen LJ’s judgment at 532-533 in Ratcliffe v Evans [1892] QB 524, an English leading case of pleading and proof of damage. “The character of the acts themselves which produce the damage, and the circumstances under which those acts are done, must regulate the degree of certainty and particularity with which the damage done ought to be stated and proved. As much certainty and particularity must be insisted on, both in pleading and proof of damage, as is reasonable, having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry.” 21.I therefore find that the Appeal partially succeeds in terms that the award of Ksh 1,996,650 is set aside as the counter claim was time barred, and furthermore was not strictly proved with invoices or vouchers. On the other hand, the appellant is not entitled to rent arrears as the same was not strictly proved. Each party to bear own costs. DATED AND DELIVERED THIS 29TH DAY OF MAY 2026 HON. JUSTICE ANTONY O. OMBWAYOMOMBASA ENVIRONMENT AND LAND COURTDate: 2026-05-20 14:08:46