Interdiocesan Property Ltd & another v Cross Laboratory Supplies Ltd & another (Civil Appeal E190 of 2023) [2026] KEHC 7629 (KLR) (29 May 2026) (Judgment)

Interdiocesan Property Ltd & another v Cross Laboratory Supplies Ltd & another (Civil Appeal E190 of 2023) [2026] KEHC 7629 (KLR) (29 May 2026) (Judgment) Neutral citation: [2026] KEHC 7629 (KLR) Republic of Kenya In the High Court at Kisumu Civil Appeal E190 of 2023 LM Wachira, J May 29, 2026 Between Interdiocesan Property ltd 1st Appellant Church Commissioners of Kenya Ltd 2nd Appellant and Cross Laboratory Supplies Ltd 1st Respondent Pambo Investments 2nd Respondent (Being an appeal from the judgment delivered on 12th October 2023 in Kisumu CMCC No. 563 of 2015 by Hon M. I. Shumenga) Judgment 1.The appeal arises from the decision of Hon. M. I Shimenga (SRM) in a trial wherein the Respondent Cross Laboratory Supplies Ltd had sued the Appellants herein in a claim for distress for rent. The Respondent withdrew its claim before hearing and what was heard was the counterclaim by the Appellant. The Appellants counterclaim was dismissed and hence the Appeal that is before the court. 2.According to the counterclaim in the Defence & Counterclaim filed in court, the Appellants had sought an amount of Kshs.1,777,684/- being the rents arrears accrued by the Respondent, plus a further Kshs.94,387/- being outstanding auctioneers fees. 3.According to the pleadings in the lower court, the Respondent had entered into a sublease agreement dated the 29/05/2012 with the Appellants and the Respondent had defaulted in payment of rent from October 2015 and as at 29/11/2016, when the distress for rent was done, the Respondent was in arrears of rent amounting to Kshs.1,777,684=. According to the counterclaim, only Kshs.29,300/= was realized from the auction and this amount was used to defray part of the auctioneer’s fees. Trial Court Evidence 4.At the trial only the Appellant’s witness testified. As indicated earlier, the Respondent had withdrawn its claim. The Appellant’s witness told court that the Respondent was a tenant of the Appellant at Alpha House and that he had defaulted in rent. That the Respondent vacated the Premises in year 2017 leaving behind rent of Kshs.1,777,584/=. 5.During the cross-examination, the witness told court that the Respondent was a tenant and that the witness was an employee of the Appellant. She stated that the Respondent had been auctioned for the rent arrears but only Kshs.29,300/- was recovered from the sale. The witness statement had been produced in court indicating the amount that was in arrears and the amount that was recovered from the auction. 6.The Respondent did not call any witness in defence to the Counterclaim. 7.In her judgment the learned Magistrate, found the Defendant did not bring in evidence to demonstrate how long the Plaintiff had been in rent arrears She indicated that the statement of rent payment produced in court indicated that the Plaintiff had not paid rent from the month of January to November 2016. She went ahead and stated that the Defendant had not indicated why he failed to claim rent arrears in that period. 8.The learned trial Magistrate also found that a demand letter and statement of rent arrears was not served on the Plaintiff and went ahead to find that the claim by the 1st and 2nd Defendant was unreasonable, stating that the auctioneers had been instructed to levy distress for only Kshs.522,232 and not 1,777,584/- 9.The learned trial Magistrate equally questioned the process of auction and indicated that the auctioneer had not followed the required procedure in the auction and found the auctioneers to have been in breach of the Auctioneers Rules. 10.And based on the above findings, the trial Magistrate found that the Defendants who are now the Appellants had not proved their case on a balance of probabilities and dismissed it. 11.Aggrieved by the said judgment the Appellants filed a Memorandum of Appeal on the following grounds:i.The trial Magistrate erred in law in dismissing the Appellants counterclaim without any basis.ii.The learned trial Magistrate misdirected herself as to the facts and evidence before court.iii.That the learned trial Magistrate erred in finding that the Auctioneer had not complied with the Auctioneers Rulesiv.That the learned trial Magistrate in finding that the failure to produce a proclamation Notice was fatal to the Appellants Case yet the same was part of the record before the court.v.That the learned trial Magistrate failed to consider the evidence produced by the Appellants hence arriving at the wrong conclusion. 12.The Appellants pleaded with the court to allow the appeal, set aside the judgment of the trial court and enter Judgment as sought in the Counterclaim. 13.The court directed the appeal be canvassed by way of written submissions. Each party filed written submissions. Appellants’ Submissions 14.In the submissions by the Appellant, the Appellant contends that the dismissal was against the weight of the Counterclaim. His argument is that the failure to produce a Proclamation Notice would not render a distress for rent unlawful. He stated that the Appellant’s case crystalized once there was proof that there was rent arrears. That the question as to how much was in arrears was a question of reconciliation of accounts and would not merit a total dismissal. Counsel argued that the learned Magistrate focused on the procedure of proclamation and auction and failed to evaluate the rest of the evidence that was before court. Respondent’s Submissions 15.The Respondent in their submissions admitted that there were arrears of rent at some point but stated that after the proclamation and sale, the proceeds of the sale were never disclosed to the Respondents. Their submission therefore is that without the Appellant indicating how much was recovered in sale, the quantum payable cannot be established. According to the Respondent, the proclamation indicated the approximate value of the goods proclaimed as Kshs.1,000,000/- and argues that it would be impossible that these goods fetched only Kshs.29,300/= in the auction. He therefore requested the court to dismiss the appeal and uphold the judgment of the lower court. Analysis and Determination 16.This is being a first appeal I am alive to the duty of the court as stated in by the Court of Appeal in Kenya Horticultural Exporters Ltd vs Julius Munguti Maweu Civil Appeal No. 9 of 2004, where it was held that:-“On a first appeal the Court has the duty of re-evaluating the evidence, assess it and make its own conclusions without overlooking the conclusions of the trial court and bearing in mind that unlike the trial court it neither saw nor heard the witnesses. 17.I have considered the Memorandum of Appeal, the submissions in support and in opposition to the appeal, the trial court’s evidence and the issues for determination are:i.Whether the respondent proved his case on a balance of probabilitiesii.Whether the trial court erred in dismissing the Appellants counterclaim on the ground that the Proclamation Notice had not been produced in court.iii.Whether this court should interfere with the findings of the trial courtiv.Who should bear the costs of the appeal? 18.On the first issue, the legal burden is placed on the person asserting an issue to prove it. In the instant appeal, at the trial court the burden of proof was on the Defendants to prove that indeed there were outstanding rent arrears and how much the said arrears were. 19.In Evans Nyakwana v Cleophas Bwana Ongaro (2015) eKLR it was held that:“As a general proposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107(i) of the Evidence Act, Chapter 80 Laws of Kenya. Furthermore, the evidential burden…is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Sections 109 and 112 thereof…The appellant did not discharge that burden and as Section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given as either side.” 20.The Appellant’s case is that there were rent arrears as indicated on the statement that was produced in court. Indeed, the question as to whether there were rent arrears is not disputed, as the Respondent also conceded that indeed there were rent arrears. 21.However, the Respondent contends that there was a proclamation and a sale of the goods that were proclaimed. The Proclamation is attached to the record of Appeal at Page 87 and indeed confirms that the proclamation was done on 1st October 2015. The amount of arrears listed at the time was Kshs.522,232/=. The defence and Counter claim herein was filed on 16th January 2017 and claims Kshs.1,871,971/= being the arrears of Kshs.1,777,684/= plus 94,387 being the auctioneer’s costs. 22.I have considered this claim against the evidence that was adduced in the trial court. The question that was before the trial court was whether there were rent arrears and how much. From the Judgement of the trial court, this question was not determined. The court found that the Appellant had not brought sufficient evidence to prove that there were rent arrears. However, having looked at the Record of Appeal at Page 96, is the rent statement of the Respondent. It shows that by 1st October when distress was being levied, the rent arrears stood at 522,532/- before it jumped to 632,432/- the following month. Page 97 of the Record of Appeal shows that 1st March 2016, arrears stood at Kshs.1,183,432/. Page 112 of the Record of Appeal, which is a continuation of the rent statement shows that despite the Respondent paying Kshs.95,816/= in the month of March, August and October 2016, there were still arrears of Kshs.1,777,584/= as at November 2016. All this is clear from the rent statement. My view is that the rent statement was a clear proof that indeed the Respondent owed the Appellant the said amount in rent arrears. 23.On the question of the Proclamation Notice, the same is on the Record of Appeal and was part of the documents filed at the trial Court. When DW1 testified in court, she produced in Court her statement, which referred to the arrears and the distress for rent. The Proclamation is also part of the Record of Appeal. The document having been part of the Court record, it behooved the court to evaluate the same, and which I have taken my time to. 24.The Respondent’s argument is that the Appellant has not accounted for the amounts that were recovered during the Auction, and that the approximate value of the items proclaimed was Kshs.1,000,000/=. I have had an opportunity to evaluate the proclamation and a simple total of the items indicated on the proclamation is Kshs.595,000/=. The Appellants have indicated that the auction fetched Kshs.29,300/=. I have considered the submissions from both ends and my view is that the suit herein sought a permanent injunction against the Defendants who are now Appellants, a declaration that the distress was illegal and unlawful, an order of permanent injunction restraining the Defendants from interfering with the Plaintiff’s goods in shop 4A in Alpha House and costs of the suit. The suit was entirely withdrawn and only the Defendant’s counterclaim proceeded to the hearing. 25.So that the question of challenging the process and procedure of the auction was not one of the issues that the Plaintiff challenged at trial. Parties are bound by their pleadings and in this case, the plaint had been withdrawn. The claim of the Respondent was not anchored on any pleading. Equally, the counterclaim having been filed long after the proclamation, the Plaintiff should have at filing defence to counterclaim requested for accounts if indeed its view was that the proceeds of the auction had not been disclosed. The Plaintiff did not do this. 26.My finding is that indeed the Appellant has demonstrated by way of the Rent statement that indeed the Respondent owes it rent arrears of Kshs.1,777,584/= as indicated on the rent statement. 27.On the question of the auctioneer’s costs, there is no evidence whatsoever to show that the outstanding amount in auctioneer’s costs is Kshs.94,387/=. The proclamation shows that the total cost of the proclamation was Kshs.85,000/= and the evidence on record is that indeed the auctioneers recovered 29,300/-. I find that the figure of Kshs.94,387/= has not been proven and is not justified. 28.In the circumstance this court is convinced the Appellant proved its case on a balance of probability in the trial court and that the learned trial magistrate erred in dismissing the Appellants counterclaim against the Respondent. 29.In making this finding I am alive to the incidences where interference with a trial courts discretion is permitted. In Govani v shah & Another, Jaff (Third Party) Civil Appeal 185 of 2019, the learned Judges of Appeal reiterated the finding in Mbogo v Shah (1968) EA stating as follows:-“I think it is well settled that this court will not interfere with the exercise of discretion of the inferior court unless it is satisfied that its discretion is clearly wrong because it has misdirected itself or because it has acted on matters of which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so it arrived at a wrong conclusion. It would be wrong for this court to interfere with the exercise of trial Judges decision merely because this court’s decision would have been different”. 30.And with that in mind, my finding is that the Appellant have proved that they are entitled to the orders sought in the Appeal. I will therefore set aside the orders of the Judgment of the trial Court delivered on 12th October, 2023 and allow the appeal and enter Judgement for the Appellant as against the Respondent in the sum of Kshs.1,777,584/=, plus interest at court rates from the date of filing the lower court suit until payment in full. 31.The Appellant is also awarded the costs of the proceedings in the lower court and on this Appeal.Orders accordingly. JUDGMENT DELIVERED, DATED AND SIGNED VIRTUALLY AT NAIROBITHIS 29TH DAY OF MAY, 2026.…………………………..………………L.M. WACHIRAJUDGEIn the Presence of:Kevin – court assistant…………………………………………… -for the Appellant…………………………………………… -for the Respondent