https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9139

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NYERI** **HIGH COURT CIVIL APPEAL CASE NO. E016 OF 2025** **JOSEPH NDERITU GUANDARU** **NANCY WANJIRA WARUINGI** **T/A PROVIDENCE AUCTIONEERS………………….….APPELLANT** **VERSUS** **PETER KIONI NJOGO…………………………………..RESPONDENT** **JUDGEMENT** 1. The Appellant **JOSEPH NDERITU GUANDARU** has filed the Memorandum of Appeal dated **17th March 2025** seeking the following orders:- **“(a) THAT the appeal be allowed.** **(b) THAT the judgment of the trial court be set aside and/or** **varied.** **(c) Costs of the Appeal and Interest.** **(d) Any further or better relief that the court may deem fit** **to grant.”** 2. The Respondent **PETER KIONI NJOGO** opposed the appeal. The appeal was canvassed by way of written submissions. The Appellant filed the written submissions dated **9th December 2025** whilst the Respondent relied upon his written submissions dated **16th February 2026**. **BACKGROUND** 3. The Respondent filed in the Magistrates Court Civil Suit No. **129 of 2021** seeking the following orders:- **“(a) Value of goods as per the purchase value of Kshs. 726,183.** **(b) Damages for unlawful execution.** **(c) Damages for loss of business and interference with** **business relations.** **(d) Costs and interest.”** 4. The Plaintiff in his evidence stated that he carried on a general shop business located in the premises known as LR No. **NYERI MUNICIPALITY BLOCK 11/28** situate within **Nyeri Town** which property belonged to the 1st Defendant **Joseph Ndiritu Guandaru**. 5. That on or about **28th October 2017** the 2nd Defendant **PROVIDENCE AUCTIONEERS** acting on instructions from the 1st defendant proclaimed the plaintiff’s trade goods valued at **Kshs.** **726,183**. The proclamation was based on warrants of proclamation issued in **Nyeri CM Misc Case No. 15 of 2020** (the former cause’) 6. The 2nd defendant proceeded to sell the plaintiff’s trade goods by way of public auction on **22nd November 2017**. 7. On **30th November 2018** (after the sale of the plaintiffs goods by auction) a ruling was delivered declaring the execution against the plaintiff to be illegal null and void. The plaintiff then filed the suit seeking to be awarded damages for this illegal execution. 8. The Defendants filed a statement of Defence dated **15th March 2022** in which they denied that the plaintiff was carrying on business in their premises. The defendants position was that the property had been leased out to the plaintiff’s late father. 9. The 1st Defendant admits that he instructed the 2nd defendant to proclaim the plaintiffs goods for distress of rent pursuant to the court order issued in **Nyeri CMCC NO. 15 of 2010**. That said proclamation occurred on **28th October 2021**. 10. The defendants contend that the ruling on **30th January 2018** did not apply retrospectively and that at the time when execution took place, the orders allowing that execution were in force and was valid. The Defendants further state that the plaintiff was the person in occupation of the suit premises and was paying rent at the material time, the plaintiff signed the proclamation orders and the orders were fully within his knowledge. 11. The Defendants contended that the suit could not be re-opened as per the orders issued on **23rd November 2016** in **Nye-ri ELC 31 of 2015**. They prayed that the suit be dismissed with costs. 12. The suit was duly heard and vide the judgment delivered on **26th February 2025** by **HON. E. N. ANGIMA**, Resident Magistrate, the suit was allowed and the trial court made the following orders:- **“(a) 1st Defendant is found to be 100% liable for the illegal execution against the plaintiff.** **(b) The Plaintiff is awarded Kshs. 70,000/= being the value of his goods illegally taken from his enterprise and auctioned.** **(c) The plaintiff is awarded General Damages of Kshs.** **800,000/= for the losses suffered following the illegal execution against him.** **(d) Interest on (b) and (c) above at Court rates is awarded to the plaintiff from the date of this judgment until payment in full.** **(e) The 1st Defendant will bear the costs of this suit.”** 13. Being aggrieved by this judgment the Appellant (the Defendant in the Lower Court case) filed this appeal which appeal is premised upon the following grounds:- **“1. The learned trial magistrate erred in law and in fact in finding the Appellant 100% liable to the Respondent, against the order issued in Nyeri ELC Court, Appeal No. 31 of 2015 declaring the appeal filed by the Respondent’s father as having abated, and ordering the family of the said Appellant to vacate the premises reference number NYERI/MUNICIPALITY BLOCK 11/28 within 60 days, or be evicted by the appellant herein.** **2. The learned trial magistrate erred in law and in fact in failing to appreciate that the Respondent herein is a son of the Appellant in Nyeri ELC Appeal No. 31 of 2015 and that as the occupier of NYERI/MUNICIPALITY BLOCK 11/28, he was to be evicted if he failed to leave the said property within 60 days from 23rd November, 2016.** **3. The learned trial magistrate erred in law and in fact in failing to apportion blame upon the Respondent, yet he was illegally in occupation of the L. R NYERI/MUNICIPALITY BLOCK 11/28.** **4. The learned trial magistrate erred in law and in fact in awarding the Respondent general damages for Kshs. 800,000/= for losses suffered following the eviction, without sufficient evidence to support the alleged loses.** **5. The learned trial magistrate erred in law in allowing the Respondent’s claim, against the weight of the evidence on record.** **ANALYSIS AND DETERMINATION** 14. I have considered the appeal before this court, the Record of appeal as well as the written submissions filed by both parties. 15. This is a first appeal and in this regard I take cognizance of the holding in **Imanyara & 2 others v Attorney General [2016] KECA 557 (KLR)** in which the Court of Appeal stated as follows:- ***This being a first appeal it is trite law, that this Court is not bound necessarily to accept the findings of fact by the court below and that 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 in such an appeal is are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. See Selle and Another v Associated Motor Boat Company Limited and others [1968] EA 123 and Williamson Diamonds Ltd. V Brown [1970] E.A.L*** ***As we discharge our mandate of evaluating the evidence placed before the High Court, we keep in mind what the predecessor of this Court said in Peters -vs- Sunday Post Ltd [1958] EA 424. In its own words:-*** ***“Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide……..”*** 16. It is not in dispute that the Respondents goods were proclaimed through a court order dated **15th August 2015** which allowed the 1st Defendant to levy distress for rent. The order was carried out by the auctioneer on **28th October 2017**. 17. Further it is also not in dispute that the said proclamation was set aside through a court order dated **20th January 2018** being the result of an appeal filed by the Respondents father. 18. In his evidence (at **page 20** of the Record of Appeal) the Appellant admitted that the **ELC** order dated **20th November 2017** staying distress of rent was in fact obtained by the Respondent. The Appellant admits that by this date the property had not been sold, as the sale took place on **22nd November 2017**. 19. From the above it is quite evident that the Appellant acting in defiance of the order of stay proceeded to sell the goods. In the premises I would find no valid reason to fault the finding of the trial court that the actions of the Appellant were in fact illegal. I hold that the finding of 100% liability against the Appellant was sound and I do uphold that finding. 20. The **ELC** order dated **16th January 2017** (see **Page 96** of the Record of Appeal) was in the following terms:- **“1. The APPEAL be and is hereby declared to have** **abated.** **2. The family of the Appellant to vacate the premises** **reference number NYERI/MUNICPALITY BLOCK 11/28 within 60 days from this date failure of which the Respondent to proceed and evict then from the premises.”** 21. From a plain reading the **ELC** orders only provided for eviction of the Respondent but no orders were made regarding the illegality of the distress for rent. As such the **ELC** orders did not negate the setting aside of the orders of levy for distress of rent. 22. The trial court did not address these orders for eviction of the Respondent from the suit premises and as such those orders of eviction remain valid and enforceable. 23. Therefore what the Appellant ought to have done was to simply evict the Respondent from the suit premises without distressing for rent as the orders for distress had already been set aside. 24. Based on the foregoing I find no merit in this appeal. The same is hereby dismissed in its entirety. Costs of this Appeal to be met by the Appellant. **Dated in Nyeri this 29th day of June 2026.** **………………………………..** **MAUREEN A. ODERO** **JUDGE**