https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7408

Image Apparels Limited & another v Freight in Time Limited & 3 others (Civil Case 807 of 2007) [2026] KEHC 7408 (KLR) (Civ) (12 May 2026) (Judgment) Neutral citation: [2026] KEHC 7408 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Case 807 of 2007 SN Mutuku, J May 12, 2026 Between Image Apparels Limited 1st Plaintiff Safari Image Limited 2nd Plaintiff and Freight In Time Limited 1st Defendant Jumbo Airlink Auctioneers 2nd Defendant Leakey’S Storage Ltd 3rd Defendant Moses Siagi & Co Advocates 4th Defendant Judgment The Claim 1.Image Apparels Limited and Safari Image Limited (hereafter the 1st and 2nd Plaintiffs) filed the present suit by way of a plaint dated 30.11.2007 and amended on 6.08.2008 (the amended plaint) seeking judgment against Freight Intime Limited, Justus Matundura t/a Jumbo Airlink Auctioneers, Leakey’s Storage Ltd and Moses Siagi t/a Moses Siagi & Co. Advocates (the 1st, 2nd, 3rd and 4th Defendants respectively) jointly and severally for the following orders:a.Special damages totaling a sum of Kshs. 26,743,869.40.b.General damages.c.Punitive/exemplary damages.d.The Honourable Court be pleased to grant any justifiable relief as it may deem fit in the circumstances.e.Interest on (a), (b) and (c) from the date of filing suit until payment in full.f.Costs of the suit. 2.The 2nd Defendant is sued in his capacity as an agent of the 1st Defendant and the 1st Defendant is held vicariously liable for the actions and/or omissions of the 2nd Defendant. 3.The Plaintiffs have presented a case that sometime on or about 1.12.2004 the 2nd Defendant, while acting on the instructions of the 1st and 4th Defendants, proceeded to execute a decree resulting from a judgment purportedly delivered in Nairobi CMCC No. 8966 of 2004 – Freight Intime Ltd v Image Apparels Ltd (the primary suit) against the said Plaintiffs. That in the process of executing that decree, the 2nd Defendant attached and carried away various items and assets from a factory belonging to the Plaintiffs as specifically listed under paragraph 8 of the amended plaint. 4.It is pleaded that the attachment process undertaken by the 2nd Defendant was illegal and unlawful for the reasons that there was no proclamation by the 2nd Defendant of the attached items or valid judgment and decree deriving from the primary suit warranting execution, and that the 2nd Plaintiff’s items were attached despite the fact that it was never a party to the primary suit. 5.It is further pleaded that in view of the above circumstances, the magistrate in the primary suit delivered a ruling on 9.03.2005 ordering the release of the Plaintiffs’ attached items but despite that court order, the defendants refused and/or neglected to release the Plaintiffs’ attached items, thereby causing the magistrate to issue a similar order for release of the items on 27.10.2005. That it is not until 27.09.2006 that the attached items were released by the 3rd Defendant but on condition that the Plaintiffs pay a sum of Kshs. 450,000/- as storage charges. That the specific items listed under paragraph 11 of the amended plaint were released on two (2) separate occasions, namely 7.04.2006 and 27.09.2006. 6.It is pleaded that, despite the release of some items as stated above, the Defendants have to date failed and/or neglected to release the various items listed under paragraph 12 of the amended plaint valued at Kshs 1,351,430, which the Plaintiffs are now claiming as part of special damages. 7.The Plaintiffs have pleaded that between the time of unlawful attachment of their goods/items on 1.12.2004 and release thereof on 7.04.2006 and 27.09.2006 respectively, they suffered grave financial and business loss, in the manner particularized and quantified under paragraphs 13 and 14 of the amended plaint. The Plaintiffs are therefore seeking the reliefs specified in the Plaint as shown above. The Defence 8.The 1st, 3rd and 4th Defendants entered appearance and filed separate statements of defence in which they have denied liability and the allegations made by the Plaintiffs. 9.The 1st Defendant filed a statement of defence dated 10.11.2008 in which he has denied, inter alia, giving instructions to the 2nd Defendant to execute any decree against the Plaintiffs, as alleged in the amended plaint. The 1st Defendant has stated that upon instructing the 4th Defendant to institute the primary suit on its behalf, it did not participate in the matter thereafter including the execution process; that all the items listed under paragraph 8 of the amended plaint were eventually released to the Plaintiffs and that the said items were previously in the custody of a licensed firm of auctioneers duly instructed by the 4th Defendant. It denied that at no time did it refuse to release the attached items to the Plaintiffs and that part of the attached items belonged to the 2nd Plaintiff. 10.The 1st Defendant further denied the particulars of loss and damage set out in the amended plaint and stated, in the alternative, that any loss or damage suffered by the Plaintiffs cannot be attributed to it and that any actions in executing the decree issued in the primary suit were undertaken legally and in good faith. The 1st Defendant has urged that the Plaintiffs’ suit be dismissed with costs to the 1st Defendant. 11.The 3rd Defendant’s statement of defence is dated 12.11.2008. It has denied liability and the allegations of the Plaintiffs. Alternatively, the 3rd Defendant has stated that all goods and items previously held and stored by itself were released to the 2nd Defendant and the 1st Plaintiff, separately; that it was never a party to the primary suit and therefore any losses arising therefrom ought to be pursued against the remaining Defendants herein and that its role was limited to receipt and storage of the attached goods/items. 12.The 3rd Defendant sought dismissal of the suit with costs to the 3rd Defendant. 13.The 4th Defendants filed his statement of defence dated 19.11.2008 in which he denied liability and issuing any instructions to the 2nd Defendant to execute the decree in the primary suit. He has stated that he is not in a position to ascertain the allegations regarding attachment of the items listed under paragraph 8 of the amended plaint. 14.The record shows that the 2nd Defendant herein entered appearance on 25.11.2008 and that on 21.03.2014, he entered appearance a second time through firm of Rombo & Co. Advocates. He did not file defence within the prescribed timelines, leading to entry of an interlocutory judgment against him on 27.02.2009. 15.The record shows that in the course of these proceedings, it was indicated that the 2nd Defendant had died. I did not find any evidence confirming that indication. The record shows, further, that the firm of Rombo & Co. Advocates eventually successfully sought leave of the court to withdraw from acting on behalf of the 2nd Defendant, in the matter. The Evidence 16.At the hearing of the suit, the Plaintiffs called two (2) witnesses, whereas the 1st Defendant elected to call one (1) witness. The 4th Defendant similarly testified in his defence. The 2nd and 3rd Defendants did not call any evidence or participate in the hearing. 17.Ramesh M. Shah testified as was PW1, He stated that he is the Managing Director of the Plaintiffs. He adopted his witness statement dated 3.07.2012 and his amended witness statement dated 6.06.2018 as his evidence-in-chief. The witness also produced the Plaintiffs’ list and bundle of documents dated 3.06.2013 and their additional list and bundle of documents dated 14.12.2015 as exhibits. 18.He testified that on the material date, the 2nd Defendant in the company of police officers, visited the Plaintiffs’ respective premises purporting to execute a break-in order pursuant to a decree issued by the subordinate court in the primary suit and that the 2nd Defendant ultimately carried the Plaintiffs’ goods out of their premises; that following the unlawful attachment, he instructed his advocates to peruse the court file relating in the primary suit; that it was discovered that the court file in the primary suit was missing as a result of which a new file was reconstructed. 19.The witness testified that he suspected that the aforementioned order had been fraudulently obtained, and that the primary suit lay solely against the 1st Plaintiff and not the 2nd Plaintiff; that following the proclamation and attachment exercise, the Plaintiffs’ goods were held in storage by the 3rd Defendant and that upon partial release thereof, he was forced to pay storage charges in three (3) instalments of Kshs. 450,000/-; that the Plaintiffs did not receive all the previously proclaimed goods and that the missing goods were valued at Kshs. 425,000/- and Kshs. 221,430/- for the 1st and 2nd Plaintiffs, respectively. 20.PW1 testified, further, that the dispute between the parties proceeded on appeal where the directors of the 1st Defendant were found guilty for contempt of court and fined accordingly; that ultimately, their appeal to the Court of Appeal was dismissed and that, to his knowledge, criminal and disciplinary proceedings were also lodged against the auctioneers herein. 21.It is also the evidence by PW1 that following the unlawful proclamation and attachment of the said goods, the Plaintiffs suffered loss of rent totaling Kshs. 1,200,000/-; damage for their missing machinery totaling Kshs. 1,351,430/-; loss resulting from subsidized sale of their remaining machinery due to lack of operations, to the tune of Kshs. 3,600,000/-; that the 2nd Plaintiff lost use of its motor vehicle registration number KAH 356N; that they incurred a cost of Kshs. 290,070 as towing charges for the said motor vehicle, plus insurance costs; that he was forced to hire a motor vehicle valued at a sum of Kshs. 1,200,000/- and that the total losses incurred is Kshs. 26,743,867.46 which constitute the special damages sought in addition to general damages and costs of the present suit. 22.In cross-examination, the witness stated that it is the 1st Plaintiff who was sued in the primary suit but that he was not served with a copy of the resulting decree or proclamation notice prior to the attachment process but he was aware of the existence of the dispute therein; that the subordinate court issued an order on 9.03.2005 in the primary suit for a stay of execution of the decree and for the unconditional release of the Plaintiffs’ proclaimed goods/items; that this was followed by a second order issued on 27.10.2005 also for the unconditional release of the said goods/items, at which point the goods were in the custody of the 3rd Defendant; that he did not have an inventory of the goods which were carried out of the Plaintiffs’ premises but stated that the items which were released are particularized in the amended plaint and that as a result of the actions of the Defendants, the Plaintiffs suffered grave financial loss quantified at a sum of Kshs. 26,736,000/- as well as reputational loss. 23.Chetan Haria testified as PW2. He adopted his witness statement executed on 16.10.2017 as his evidence in chief and testified that the 2nd Plaintiff in particular was at all material times a supplier of his company named Colpro Limited; that sometime in October 2004 he placed an order with the 2nd Plaintiff for the supply of fabric worth Kshs. 5,000,000/-; that by the end of November, the said Plaintiff had only supplied part of the fabric worth Kshs. 3,000,000/-; that subsequently on 1.12.2004 he received information that the 2nd Plaintiff had been encountering challenges with auctioneers and its operations, forcing it to source for other suppliers and buy materials for them; that he lost confidence in the 2nd Plaintiff for some time and that his business too was negatively impacted and that it was only a few years later that his company resumed receiving supplies from the 2nd Plaintiff. 24.In cross-examination, the witness gave evidence that as concerns the order referenced in his evidence-in-chief, no money was exchanged between his company and the 2nd Plaintiff since the goods in question were at the manufacturing stage at the time; that the 2nd Plaintiff closed down in December, 2004 following which he ceased undertaking business with them and that the documentation tendered does not contain any delivery notes and hence he was not in a position to confirm the delivery numbers relating to the goods allegedly delivered to him by the 2nd Plaintiff. 25.In re-examination, he testified that he is unable to speak on the losses suffered by the Plaintiffs herein; that any losses referred to in his testimony relate specifically to losses suffered by his company as result of the hitches in supply by the 2nd Plaintiff. 26.The 1st Defendant called Elijah Sila Kiva as DW1. He testified that he has worked as an Accountant for the 1st Defendant since the year 2005; that following judgment in the primary suit, the 1st Defendant instructed its advocate (the 4th Defendant) to engage auctioneers with a view of executing the resulting decree; that, certain items were carried out of the Plaintiffs’ premises but were later returned; that the said items are listed on page 48 of the 1st Defendant’s bundle, specifically a letter dated 6.9.2004 totaling 16 items valued at a sum of Kshs. 3,024,000/- and that in addition, the motor vehicle registration number KAH 356N was released to the Plaintiffs on 1.12.2004. 27.He denied that the 1st Defendant was liable for rent incurred or paid by the Plaintiffs during the intervening period mentioned or that the 1st Defendant was responsible for any loss incurred by the Plaintiffs in the sale of their machines at cheaper rates. He confirmed that the storage charges were paid to the auctioneers (the 3rd Defendant) directly, for release of the attached goods. 28.He testified, further, that the 1st Defendant is not responsible for any losses suffered by the Plaintiffs since it did not engage the services of auctioneers; that, to his knowledge, the 1st Defendant complied with the court orders by releasing the Plaintiffs’ goods to the Plaintiffs and that, the 2nd Plaintiff acknowledged the debt owing in the primary suit and yet failed to settle the same. 29.In cross-examination, the witness stated that he was unaware that the 1st Defendant was ever cited for contempt of the court order in the primary suit; that he was also unaware that the court order required the unconditional release of the Plaintiffs’ goods and that he was also unaware of the 2nd Defendant’s conviction in relation to missing goods belonging to the Plaintiffs. 30.During re-examination, the witness stated that while he has no knowledge as to where the Plaintiffs’ goods were stored following attachment, he was aware that they were eventually released to the Plaintiffs and a release order was signed to that effect and that the contempt proceedings against the 1st Defendant have no bearing on this case. 31.The 4th Defendant testified as DW2. He adopted his witness statement dated 2.10.2024 as his evidence in chief. He testified that acting on the instructions of the 1st Defendant, he filed the primary suit against the 1st Plaintiff herein and that upon taking out summons to enter appearance, he ensured the same were served upon the said Plaintiff who did not enter appearance, thereby resulting in a default judgment in favour of the 1st Defendant. 32.The 4th Defendant testified that he then applied for execution against the 1st Plaintiff and upon encountering challenges in accessing the said Plaintiff’s premises, he applied for issuance of a break-in order which was granted and that he complied with the law and procedure, hence the suit against him ought to be dismissed since no fault can be found against him. 33.During cross-examination, the 4th Defendant stated that the court file relating to the primary suit went missing but that the same was reconstructed; that he had no knowledge that criminal charges had been preferred against the 2nd Defendant and that he admitted that to his knowledge, the court issued orders on 9.03.2005 and 27.10.2005 for the unconditional release of the attached goods, to the Plaintiffs. Parties’ Submissions 34.At the conclusion of the evidence, parties were allowed to put in their respective submissions. The record shows that as at the time of writing this judgment, only the submissions by the Plaintiffs as well as the 1st and 4th Defendants, were available. 35.The Plaintiffs have submitted that they have tendered sufficient evidence to prove that the attachment undertaken on their goods was illegal, unlawful and marred by fraud. They submitted that no proclamation for attachment and/or warrants of attachment were ever taken out or served upon them and that going by the court record, the request for judgment earlier entered in the primary suit was declined due to defective service; that the court file relating to the primary suit mysteriously disappeared thereby necessitating a reconstruction thereof; that the subordinate court by way of a ruling delivered in the primary suit, acknowledged the absence of any judgment and decree warranting execution and that the abovementioned ruling was challenged by way of an appeal which was ultimately dismissed. 36.The Plaintiffs submitted that the documents relied upon by the Defendants in justifying the attachment of their goods were concocted and that it is on this very basis that the subordinate court made an order for release and return of all the Plaintiffs’ attached goods and that the above turn of events prompted them to institute a complaint with the Auctioneers Board, against the 2nd Defendant, vide Misc. Cause No. 89 of 2005 (the Complaint) which resulted in the conviction of the said Defendant. 37.On the reliefs sought, the Plaintiffs have submitted that they are entitled to the totality of the reliefs sought in their amended plain; that firstly, the Plaintiffs are entitled to compensation by way of a sum of Kshs. 1,211,000/- to cater for rent expenses incurred from December, 2004 until June 2005 when their business operations were crippled due to loss of their attached goods and that they have tendered receipts to support this claim. 38.Secondly, the Plaintiffs have submitted that they are entitled to a sum of Kshs. 3,600,000/- being losses arising from the cheap sales of the 1st Plaintiff’s machinery in a bid to settle a loan facility with Giro Commercial Bank and thirdly that, they are entitled to sums of Kshs. 2,000,000/- and Kshs. 1,000,000/- respectively, for loss of reputation and expenses incurred in removing their furniture. 39.The Plaintiffs have similarly urged this court to award a sum of Kshs. 1,000,000/- to the 2nd Plaintiff for loss of user of its motor vehicle registration number KAH 356N, as well as towing charges (Kshs. 2,970/-); service charges (Kshs. 15,416.40); insurance charges for the year 2005 (Kshs. 35,571/-); and insurance charges for four (4) months in the year 2006 (Kshs. 11,857/-). 40.The Plaintiffs have also sought a sum of Kshs. 450,000/- being storage charges incurred by the 2nd Plaintiff in paying the 3rd Defendant. In addition, a sum of Kshs. 800,000/- is sought on loss of use of an embroidery machine, while a sum of Kshs. 1,000,000/- is sought for losses incurred in the cheap sale of certain fabrics. 41.The Plaintiffs have further submitted that they incurred a cost of Kshs. 1,265,625/- in hiring machinery for their business between January, 2005 and April, 2006 and for which they seek compensation and Kshs 10,000,000/- for the loss of goodwill by the 2nd Plaintiff and Kshs 3,000,000 in respect of the Plaintiffs’ Managing Director (PW1) for suffering psychological distress. 42.The Plaintiffs have submitted that they are seeking an award of general damages to the tune of Kshs. 1,000,000/- each. They placed reliance on the case of C.Y.O Owayo v George Hanningtone Zephania Aduda t/a Aduda Auctioneers & Another-Kisumu Court of Appeal Civil Appeal No. 2 of 2003 where the appellant therein was awarded a sum of Kshs. 400,000/- as general damages for trespass and Kshs. 1,000,000/- as exemplary/punitive damages. 43.The 1st Defendant has maintained that the execution process was lawfully and legally conducted, pursuant to a valid judgment and decree emanating from the primary suit; that the subordinate court never deemed the said judgment and decree to have been obtained fraudulently, as purported by the Plaintiffs; that the Plaintiffs’ goods were released to them unconditionally at the first instance, and upon payment of the requisite storage fees at the second instance and that the subordinate court did not conclude that the auctioneers had contravened the law but only directed that they file a bill of costs for purposes of taxation. 44.The 1st Defendant has submitted, further, that although the entry of judgment was rejected, its advocate filed a fresh affidavit of service which was followed by entry of judgment on 22.09.2004; that no liability has been established against it, since the order for release of the attached goods was directed at the 2nd Defendant and that the contempt of court proceedings referred to in this case were conclusively determined and hence the 1st Defendant ought not to be punished a second time. 45.The 4th Defendant has also filed written submissions, echoing the submissions made by the 1st Defendant. He submitted that no reasonable cause of action exists against him since the manner and extent of his liability have not been demonstrated by the Plaintiffs; that the judgment and decree in the primary suit are valid; that the ruling delivered by the subordinate court merely ordered that the attached goods be released to the Plaintiffs, but did not set aside the judgment and decree therein and that in any event, he had ceased acting for the 1st Defendant at this stage. 46.The 4th Defendant further submitted that the instructions for execution were clearly set out in the warrants of attachment; that he did not personally issue any instructions to the 2nd Defendant on the manner of execution; that at no point did he apply for execution against the 2nd Plaintiff and any execution which extended to the latter did not arise from the former; that there is no nexus whatsoever between the 2nd Plaintiff and the 4th Defendant and that on his part, he discharged his professional duties in the primary suit in accordance with the law and procedure and therefore there is no viable claim that has been made against him. 47.He submitted that the Plaintiffs have not brought any material to support their claim for damages; that the invoices and documentation tendered do not match the machinery allegedly attached, while the said documentation does not clarify which items belong to which Plaintiff and that the Plaintiffs are neither entitled to the reliefs sought in the amended plaint, nor the costs thereon. Analysis and Determination 48.I have considered the pleadings and evidence tendered at the trial, as well as the rival submissions and authorities cited therein. I have noted from the record that the Plaintiffs filed a list of issues dated 3.07.2012 containing 11 issues. Nevertheless, there is nothing to indicate that a statement of agreed issues was filed in the matter. 49.I have elected to compress all the issues arising from this case to one: whether the Plaintiffs have proved their case against the Defendants. I believe the determination of that singular issue will settle all outstanding issues in this case. 50.The evidence law is settled. The applicable sections under the Evidence Act on this issue are sections 107, 108 and 109 of the Evidence Act. 51.Section 107 (Burden of proof) provides that:(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. 52.Section 108. (Incidence of burden) provides that:The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. 53.Section 109. (Proof of particular fact) provides that:The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. 54.The Plaintiffs bear the burden of proof to demonstrate that the allegations made against the defendants have been proved to the standard set out in section 107 and 108 of the Evidence Act. It is the plaintiffs who would fail if no evidence at all were given on either side. Further, under section 109 of the Act, the burden of proof keeps shifting to any party who wishes the court to believe in the existence of a fact pleaded. This is the evidential burden of proof. 55.Before determining whether the Plaintiffs have discharged the burden of proof placed on them under Section 107 of the Act, I wish to determine a related matter whether the amended plaint discloses a reasonable cause of action against the 4th Defendant. This issue was raised by the 4th Defendant in his submissions. My careful perusal of the record reveals that the 4th Defendant did not raise this issue in his pleadings. It was raised at the submissions stage. 56.It is trite that submissions do not constitute evidence and hence a party cannot be heard to raise new issues or arguments by way of his or her submissions. 57.I am guided by the decision of the Court of Appeal in Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another [2014] eKLR where that Court held that:“Submissions cannot take the place of evidence…Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all.” 58.In view of the foregoing position, I am of the view that the 4th Defendant cannot raise the above issue at this late stage of the proceedings through the submissions. The record shows that, in addition to filing an unconditional statement of defence, the 4th Defendant actively participated in the hearing of the suit both by way of cross-examination of the Plaintiffs’ witnesses and by way of giving his own testimony. Consequently, I decline to determine that issue for the reasons given. 59.Turning on whether the Plaintiffs have proved their case against the defendants, I have considered the case by the Plaintiffs who have stated that they have proved their case against the Defendants for the reasons that the 2nd Defendant did not tender a proclamation of the attached items; that no valid judgment and decree deriving from the primary suit exist warranting execution and the 2nd Plaintiff’s items were attached despite the fact that it was never a party to the primary suit. 60.This was denied by the 1st and 4th Defendants, who have stated that the attachment was lawfully undertaken pursuant to a valid judgment and decree. 61.I have carefully examined the pleadings and evidence on record. I find no dispute that the 1st Defendant filed the primary suit, seeking a sum of Kshs. 2,507,063/- against the 1st Plaintiff being monies due to the 1st Defendant as freight charges and costs. It is also not disputed that the 1st Defendant was at all material times represented by the 4th Defendant, in the primary suit. 62.According to the averments made by the respective parties, a default judgment was purportedly entered against the 1st Plaintiff for failure to enter appearance and/or file its statement of defence, followed by the alleged issuance of a decree and that warrants of attachment were subsequently applied for and obtained the 2nd Defendant, followed by an order to break in, thereby resulting in the attachment of the Plaintiffs’ goods from their business premises. 63.The material on record reveals that the 1st Plaintiff instructed its advocates to peruse the court file relating to the primary suit, only to discover that the same was allegedly missing from the court registry and could not be traced. That consequently, the 1st Plaintiff through its advocates, filed an application in the primary suit, seeking an order for reconstruction of the said court file and which application was allowed vide an order made on 10.12.2004. Subsequently, the 1st Plaintiff sought and obtained an order for release of the attached goods collected by the 2nd Defendant, vide a ruling delivered on 9.03.2005 and resulting order. A further order was issued on 27.10.2005 for the unconditional release of the 1st Plaintiff’s goods as well as an order directing the 2nd Defendant to file his auctioneer bill of costs for purposes of taxation. 64.From my study of the proceedings relating to the primary suit, it is evident that in issuing the aforesaid orders and in particular, the order of 9.03.2005, the learned magistrate observed that no judgment and/or decree reflected on the record ant that no proclamation reflected on the lower court record. The learned magistrate expressed doubts as to the validity of the proclamation and the attachment process. It is on this basis that the learned magistrate ordered that the attached goods be released to the 1st Plaintiff and that the matter begins afresh. 65.The material on record equally reveals that the 1st Defendant, through the 4th Defendant, filed an appeal before the High Court, being Nairobi High Court Civil Appeal No. 141 of 2005 (Freight In Time Ltd v Image Apparels Ltd) (the appeal) by way of a memorandum of appeal dated 11.03.2005 challenging the ruling and order of 9.03.2005 on various grounds including grounds that the execution process was lawfully undertaken and that the judgment and decree were valid. 66.The 1st Defendant accompanied the memorandum of appeal with an application seeking a stay of execution of the ruling delivered on 9.03.2005 pending hearing and determination of the appeal. From the record, it is clear that upon hearing thereof, the High Court dismissed the 1st Defendant’s application vide a ruling delivered on 15.06.2005. 67.From my own reading and consideration of all the foregoing circumstances, it is apparent that the issues pertaining to the validity of the judgment and decree in the primary suit, as well as the attachment process, were previously canvassed particularly in the primary suit. It, however, remains unclear whether the appeal was substantively determined. As it stands, no material has been placed before me indicating that the rulings delivered in the primary suit were varied and/or otherwise set aside. In the premises, I see no reason to substantively revisit the issue or to depart from the reasoning and finding on the issue of validity of the judgment, decree and proclamation/attachment process herein. 68.From my reading and understanding of the record, it is evident that in undertaking the attachment of the goods in question, the 2nd Defendant was acting under the instructions of the 1st Defendant being the Plaintiff in the primary suit, and/or the 4th Defendant being its legal representative of the 1st Defendant in the said suit. It is also apparent from the record that the attached goods were stored in the custody of the 3rd Defendant, at all material times. 69.Further, from the material on record and in particular, the list of machinery tendered by the respective parties, it is apparent that the attached items were removed from the premises of both the 1st and 2nd Plaintiffs, which seems to support the evidence that both Plaintiffs’ goods were attached notwithstanding the fact that the 2nd Plaintiff was never a party to the primary suit. 70.The record shows that, following an application by the 1st Plaintiff, the lower court made separate orders on 9.03.2005 and 27.10.2005 for the unconditional release of the attached goods. These orders were served upon the 2nd Defendant. That due to non-compliance, the 1st Plaintiff took out various penal notices in the appeal and served them upon the 1st and 2nd Defendants. 71.Upon my examination of the material on record, I observed that it is not until 7.04.2006 that a partial release of the attached goods was undertaken under the instructions of the 2nd Defendant, followed by another partial release on 27.09.2006. 72.From the foregoing, it is clear that the 2nd and 3rd Defendants in particular, not only failed to comply with the timelines set out in the respective court orders, but it is also evident that the said Defendants failed to tender cogent material to demonstrate that all the attached goods were ultimately released to the Plaintiffs and therefore accounted for. As earlier stated, it cannot be overlooked that the 2nd Defendant who engaged the storage services of the 3rd Defendant, was acting under the instructions of the 1st and 4th Defendants. Consequently, I am of the view that the 1st and 4th Defendants cannot be heard to escape liability in this instance. 73.In view of all the foregoing circumstances, I am persuaded to find, which I hereby do, that the 1st and 2nd Plaintiffs herein have proved their above claim against the Defendants, jointly and severally. 74.In view of my finding above, I will now address the reliefs sought under the following heads. Special damages 75.The Plaintiffs are seeking a total sum of 26,743,869.40 for various losses and damage incurred here. The standing legal position on the issue of special damages is that special damages must be specifically pleaded and strictly proved. This was reaffirmed by the Court of Appeal in David Bageine v Martin Bundi [1997] eKLR when it stated thus:“It has been held time and again by this Court that special damages must be pleaded and strictly proved. We refer to the remarks by this Court in the case of Mariam Maghema Ali v. Jackson M. Nyambu t/a Sisera store, Civil Appeal No. 5 of 1990 (unreported) and Idi Ayub Sahbani v. City Council of Nairobi (1982-88) IKAR 681 at page 684:“... special damages in addition to being pleaded, must be strictly proved as was stated by Lord Goddard C.J. in Bonham Carter vs. Hyde Part Hotel Limited [1948] 64 TLR 177 thus;“Plaintiff must understand that if they bring actions for damages, it is for them to prove damage, it is not enough to write down the particulars and, so to speak, throw them at the head of the court, saying, ‘this is what I have lost, I ask you to give me these damages, ‘They have to prove it.” 76.Firstly, the Plaintiffs have sought a sum of Kshs. 1,211,000/- to cater for rent expenses incurred from December, 2004 until June 2005 when their business operations are said to have been crippled due to loss of their attached goods. 77.I have examined the record. It is not disputed that the Plaintiffs were at all material times engaged in the supply of fabric business. It is also apparent that the items which were attached entailed their tools of trade such as machinery and fabric. I therefore find it reasonable that, in paying monthly rent while being unable to effectively run their respective businesses, the Plaintiffs herein suffered loss. 78.From my examination of the material on record, I observed that the Plaintiffs tendered documentation in their bundle of documents, by way of various cheque payments to the tune of Kshs. 173,000/- each made to Sagoo & Nyota Limited in the months of December 2004; January 2005; February 2005 and April 2005, being rent expenses totalling a sum of Kshs. 692,000/-. I am therefore inclined to award this sum being what was specifically pleaded and strictly proved. 79.In respect of the sum of Kshs. 3,600,000/- claimed as losses arising from the cheap sales of the 1st Plaintiff’s machinery, upon my consideration of the material tendered, I did not come across any credible material supporting this claim. Going by the record, the Plaintiffs tendered voluminous records, some of which were illegible and therefore difficult to discern. Further, the documentation tendered largely constitutes invoices and delivery notes, none of which support the Plaintiffs’ averment of the losses incurred above. In any event, I observed that the Plaintiffs did not tender any cogent material ascertaining the value of the machinery referenced hereinabove and/or the value of the machinery withheld. As such, I decline to make any award on this item. 80.Regarding the sums of Kshs. 2,000,000/- and Kshs. 1,000,000/- sought by the 1st and 2nd Plaintiffs respectively for loss of reputation and expenses incurred in removing their furniture, in the absence of any credible material supporting the same, I decline to make any award on this item. 81.As earlier mentioned, the Plaintiffs have similarly urged this court to award a sum of Kshs. 1,000,000/- to the 2nd Plaintiff for loss of user of its motor vehicle registration number KAH 356N, as well as towing charges (Kshs. 2,970/-); service charges (Kshs. 15,416.40); insurance charges for the year 2005 (Kshs. 35,571/-); and insurance charges for four (4) months in the year 2006 (Kshs. 11,857/-). Nevertheless, from my examination of the material on record, I did not come across any credible material indicating that the above expenses were incurred. Consequently, the respective awards are declined. 82.As relates to the sum of Kshs. 450,000/- sought on storage charges paid to the 3rd Defendant in ensuring the release of the attached goods, upon my examination of the material on record, it is apparent that the Plaintiffs tendered Receipt No. 8377 dated 27.09.2006 for a sum of Kshs. 50,000/-; Receipt No. 7399 and dated 7.04.2006 for a sum of Kshs. 125,000/-; Receipt No. 7400 and dated 7.04.2006 for a sum of Kshs. 125,000/- for release of a storage card and the motor vehicle registration number KAH 356N; Receipt No. 8766 (illegible date) for a sum of Kshs. 75,000/- and Recipt No. 8557 (illegible date) for a sum of Kshs. 75,000/-. The respective charges come to a total of Kshs. 450,000/-. I am therefore inclined to award the sum of Kshs. 450,000/- under this head, being both pleaded and proved. 83.Regarding the sum of Kshs. 800,000/- sought on loss of use of an embroidery machine, as well as the sum of Kshs. 1,000,000/- sought for losses incurred in the cheap sale of certain fabrics, I decline to make any award here in the absence of any credible evidence supporting the same. 84.Similarly, and as relates to the cost of Kshs. 1,265,625/- said to have been incurred in hiring machinery for the Plaintiffs’ business between January, 2005 and April, 2006 as well as loss of goodwill to the tune of Kshs. 10,000,000/- and psychological distress for the Plaintiffs’ Director quantified at Kshs. 3,000,000/-, in the absence of any cogent evidence supporting the same, I decline to make any award under this head. 85.Upon my finding above, I thus conclude that the Plaintiffs are only entitled to the sum of Kshs. 692,000/- being rent expenses incurred, and a sum of Kshs. 450,000/- on storage charges paid to the 3rd Defendant, totalling a sum of Kshs. 1,142,000/- on special damages. General damages 86.Under this head, I have considered the proposed awards of Kshs. 1,000,000/- to each Plaintiff and further considered the case of C.Y.O Owayo v George Hanningtone Zephania Aduda t/a Aduda Auctioneers & Another-Kisumu Court of Appeal Civil Appeal No. 2 of 2003 cited in the Plaintiffs’ joint submissions, where an award of Kshs. 400,000/- was made on general damages, for illegal distress and trespass of goods. 87.Following my unsuccessful search of comparable awards on general damages for unlawful attachment and in the absence of any other cited authorities by the parties, I have opted to draw guidance from the above-cited authority, though it was decided many years ago. 88.Taking into account the circumstances of this matter, the passage of time and inflation; and in the absence of any counter-proposals by the respective Defendants, I am persuaded to award the respective Plaintiffs a sum of Kshs. 1,000,000/- each under this head. Punitive/exemplary damages 89.In respect of the above, the Court of Appeal in the case of PN Mashru Ltd v Ojenge [2023] KECA 473 (KLR) laid out the circumstances under which punitive damages are awardable, in the following manner:“On the award of punitive damages, in Bank of Baroda (Kenya) Limited vs. Timwood Products Ltd Civil Appeal No. 132 of 2001, this Court citing Obongo & Another vs. Municipal Council of Kisumu [1971] EA 91 and Rookes v Banard & Others [1964] AC 1129 held that in Kenya punitive or exemplary damages are awardable only under two circumstances, namely (i) where there is oppressive, arbitrary or unconstitutional action by the servants of the government; and (ii) where the defendant’s action was calculated to procure him some benefit, not necessarily financial, at the expense of the plaintiff. The third scenario is, of course, where such damages are authorised by statute.” 90.It is noteworthy that an award of punitive damages by the court is discretionary. Moreover, damages of such nature are deemed to apply in instances where there has been some arbitrary or calculated conduct by the defendant or where the actions by the defendant are calculated to grant some benefit. Punitive damages essentially go beyond compensation and are ordinarily meant to punish the offending party. 91.Upon taking into account the conduct of the respective Defendants here, I am thus persuaded to award the Plaintiffs punitive/exemplary damages. Upon my consideration of the proposals made by the Plaintiffs, I find the same to fall on the higher side. That said, I am persuaded to award a sum of Kshs. 150,000/- under this head to each plaintiff, upon considering the case of Mary Nduta Ngugi v Beatrice Ngelesai & another [2019] KEELC 746 (KLR) where the court awarded punitive/exemplary damages in the sum of Kshs. 100,000/-. Final Orders 92.In conclusion, therefore, Judgment is hereby entered in favour of the 1st and 2nd Plaintiffs against the Defendants jointly and severally in the manner hereunder:a.General damages Kshs. 1,000,000/- to each Plaintiffb.Punitive/exemplary damages Kshs. 150,000/- to each Plaintiffc.Special damages Kshs. 1,142,000/-Total award Kshs. 3,442,000/- 93.The above amount will attract interest on the special damages at court rates from the date of filing the suit until payment in full and in respect of the general and punitive/exemplary damages at court rates from the date of judgment until payment in full. 94.The Defendants shall pay the costs of the suit. 95.It is so ordered. DATED, SIGNED AND DELIVERED THIS 12TH DAY OF MAY 2026.S. N. MUTUKUJUDGEIn the presence of:………………………………………..for the Plaintiffs……………………………….for the 1st Defendant……………………………………..for the 4th Defendant