https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7259

Mbunge t/a Mbunge Enterprises v Muriithia Holdings Limited & another (Civil Appeal E993 of 2024) [2026] KEHC 7259 (KLR) (Civ) (25 May 2026) (Judgment) Neutral citation: [2026] KEHC 7259 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E993 of 2024 AN Ongeri, J May 25, 2026 Between Julius Kilei Mbunge t/a Mbunge Enterprises Appellant and Muriithia Holdings Limited 1st Respondent Andrew Mwariri Matu t/a Andrew Investments 2nd Respondent (Being an Appeal from the Judgment of Hon. L.B. Koech (SPM) in Milimani CMCC No. 3936 of 2016 delivered on 31st July, 2024) Judgment 1.The Appellant was the Plaintiff in Milimani CMCC No. 3936 of 2016 where he sued the two Respondents vide Plaint dated 15/6/2026 seeking orders to compel the Respondents to release goods to him. 2.The Appellant amended the plaint on 9/10/2020 in which he added a prayer for special damages amounting to Ksh. 30,000/= and aggravated damages for loss of business and goodwill. 3.The Respondents filed a Defence dated 10/3/2023 denying the Appellant’s claim. 4.The Respondents also raised a counter-claim of Ksh. 70,000/= being arrears of Ksh. 60,000/= and 10,000/= being costs for filing suit at the Tribunal. 5.The Respondents also sought storage charges of Ksh. 5,000/= until the Appellant pays rent. 6.The Appellant’s case was that he executed two tenancy agreements with the Respondents. The first was from 1/2/2005 to 1/2/2008 and the 2nd for five years from 1/1/2010 to 31/11/2014. 7.That during the tenancy, the Appellant decorated the premises and fixed a security door worth Ksh. 30,000/=. 8.Further that during the second tenancy, the Respondents locked the premises and evicted him and detained his goods making him to lose business. 9.The Respondents on their part said that the Appellant defaulted in payment of rent and they filed a suit at the Business Premises Tribunal where they obtained an order to break into the premises and evict the Appellant. 10.The Trial Court found that the Respondents ought to have sold the goods but they did not and directed that the goods be released on condition that the Appellant pays the rent arrears. 11.The Tribunal dismissed the prayer for general damages for alleged eviction and also the order for storage costs. 12.The Trial Court found that the Respondents had a valid order from the Business Premises Tribunal which had not been appealed against by the Appellant to the Environment and Land Court. 13.The Trial Court also directed each party to bear its own costs of the suit. 14.The Appellant has appealed against the said Judgment on the following grounds:-i.That the learned Senior Principal Magistrate grossly erred in law and fact in failing to find and hold that the Respondents unlawfully and without any colour or right evicted the Appellant from the premises he had rented from them on 21st November 2013 when they unlawfully locked him out and denied him access to the said premises.ii.That the learned Senior Principal Magistrate grossly erred in law and fact in purporting to rely on a purported order of the Nairobi Business Premises Rent Tribunal in the purported case No. 415/2014 – NAIROBI between Andrew M. Matu and Another and Julius Kilei Mbunge while that purported Tribunal case, if indeed it exists or existed, it was filed as an afterthought and after the Appellant had by then been unlawfully evicted.iii.That the learned Senior Principal Magistrate erred in law and in fact in upholding the Respondents’ alleged claim of Ksh. 60,000/= being rent arrears and Ksh. 10,000/= costs of the tribunal against Appellant when she based her findings and judgment on the entire wording appearing on the copy of the order as produced and exhibited by the Respondents’ defence case as evidence of purported tribunal orders and a prove of existence of the purported Nairobi Business Premises Tribunal Case No. 415 of 2014 between Andrew M. Matu and Muriithia Holdings Limited Versus Julius Kilei Mbunge and which she presumed it as the orders of the Court, validated and admitted it as the judicial record contrary to Section 67 of the Evidence Act, Chapter 80 Laws of Kenya.iv.That the learned Senior Principal Magistrate grossly erred in law and fact in upholding the orders of the Tribunal as the orders of the Court failed to find that from the face of the said purported Tribunal copy of the order is in wrong format and it shows that, the suit came up for hearing ex-parte on 17th July 2014, it was certified urgent, orders for distress for rent against Appellant was granted and extracted on the same day without any notice to and behind the Appellant’s knowledge, and entirely in violation of established legal procedures, a fundamental principle of nature justice and the landlord and tenant shops, hotels and catering establishments Act Chapter 301 Laws of Kenya.v.That the learned Senior Principal Magistrate grossly erred in law and in fact in finding that the Appellant would have appealed against the orders from the Tribunal and failing to find that Business Premises Rent Tribunal Case No. 415 of 2014 between Andrew M. Maru and Muriithia Holdings Limited Versus Julius Kilei Mbunge, if indeed exists or existed the suit had already abated due to failure to take out at all and serve summons to enter appearance and supporting documents upon the Appellant as provided for under Order 5 rules 1, 6, 8 of Civil Procedure Rules 2010 Chapter 21 Laws of Kenya as the Appellant never participated in the proceedings before the Tribunal at all.vi.That the learned Senior Principal Magistrate grossly erred in law and fact in failing to find that under Clause 6 special conditions of then, the current tenancy agreement, it was the Appellant’s responsibility and for his personal benefits, his enjoyment and security to put security measures to the office and since he was unlawfully evicted he was entitled to compensation of Ksh. 30,000/= he incurred as the costs of the said responsibility of putting up security measures and failing to award the same as a complete violation of his constitutional and fundamental right.vii.That the learned Senior Principal Magistrate grossly erred in law and fact in failing to find that if the premises were controlled and came within the provisions of the Landlord and Tenant (Shops, hotels and catering establishments) Act Chapter 301 Laws of Kenya as she rightfully stated then the Respondents had illegally evicted the Appellant by padlocking the door to the premises he had rented from them and denying him access to the same with effect from 21st November 2013.viii.That the learned Senior Principal Magistrate grossly erred in delivering a Judgment against the solid pictorial, oral and documentary evidence adduced by the Appellant.ix.That the learned Senior Principal Magistrate grossly erred in law and fact by rewarding wrong doers for their breach of contract and the detention and conversion of the Appellant’s goods as their goods. 15.The parties filed written submissions as follows; The appellant, Julius Kilei Mbunge trading as Mbunge Enterprises, submitted that he is appealing a judgment delivered on July 31, 2024, at the Milimani Commercial Courts. 16.In the primary suit, the appellant sought orders for the release of unlawfully detained movable goods or financial compensation in lieu, alongside special damages of KSh 30,000 for renovation and labor, general damages for illegal eviction and detention of goods, aggravated damages for loss of business, interest, and costs. 17.The trial magistrate declined to grant these remedies, prompting this appeal on nine consolidated grounds objecting to the trial court's factual and legal findings. 18.The main argument is that the trial magistrate erred by failing to find that the respondents unlawfully evicted him by padlocking the premises and denying him access starting November 21, 2013. 19.The appellant contends that the trial court erroneously relied on a copy of an ex-parte order from the Nairobi Business Premises Rent Tribunal in Case No. 415 of 2014 to retrospectively justify this eviction. 20.Pointing out a seven-month gap between the physical lockout and the tribunal order issued on July 17, 2014, the appellant argues that the order was an afterthought dealing with a completed action, making its retrospective application a procedural absurdity that violates the principles of natural justice and fair hearing. 21.Furthermore, the appellant challenges the admissibility and authenticity of the tribunal order copy relied upon by the respondents. 22.He claims the trial court violated the Best Evidence Rule and Section 67 of the Evidence Act by admitting a mere copy without requiring the original judicial record or establishing the necessary legal foundations. 23.The appellant notes that he was never served with tribunal summons or supporting documents, never participated in those proceedings, and only became aware of the order five years later in 2019 through the respondents' defence statements. 24.Upon investigating the tribunal registry, a clerk informed him that no such order or file existed, leading the appellant to argue the document lacked the required statutory format, such as dates of reference and affidavits, and should have been treated as an unauthenticated nullity. 25.Finally, the appellant asserts that even if the ex-parte injunction order had been authentic, it legally lapsed because the respondents failed to serve the order, application, and pleadings within the mandatory three-day timeframe required under Order 40 Rule 4 of the Civil Procedure Rules. 26.He further submitted that because an unserved ex-parte order automatically expires within fourteen days, the appellant states it became a legal nullity that the trial magistrate could not validly enforce. 27.Consequently, the appellant maintains that the trial court erred in upholding the respondents' counterclaim for rent arrears of KSh 60,000 and tribunal costs of KSh 10,000, as well as denying his entitlement to KSh 30,000 for security renovations contractually mandated under the tenancy agreement. 28.The Respondent in its submissions invited the court to dismiss the appeal with costs and uphold the judgment and decree delivered on July 31, 2024, at the Milimani Chief Magistrates Court. T 29.The underlying conflict originated from a primary landlord-tenant relationship where the Appellant, a tenant under two successive tenancies running from 2005 to 2008 and 2010 to 2014, sued the Respondents for the release of movable goods and general damages following what he asserted was an illegal eviction and detention of property. 30.In response, the Respondents denied the claims, launched a counterclaim for rent arrears and tribunal costs, and sought substantial storage fees for keeping the goods since August 2014. 31.The trial court ultimately determined that the tenancy terminated because the Appellant consistently defaulted on rent rather than due to an eviction, and it adopted the Business Premises Rent Tribunal's orders awarding the Respondents late rent and costs while dismissing the storage fee demands. 32.Dissatisfied with this outcome, the Appellant lodged an appeal citing nine distinct grounds, which the Respondents methodically address across three central themes. 33.In addressing the first issue of whether an eviction occurred, the Respondents maintain that the trial court was entirely justified in finding that the Appellant simply walked away from his primary obligations as a tenant. 34.They contend that the Appellant failed to corroborate his allegation of being locked out on November 21, 2013, notably omitting testimony from his own secretary, whereas the Respondents offered consistent, corroborated evidence from their caretaker and landlord showing that the Appellant routinely evaded payment by only visiting the office at night. 35.Furthermore, the Respondents challenge the evidentiary value of a photograph depicting a padlocked door produced by the Appellant, noting it lacks timestamps, fails to link back to the premises, and is legally inadmissible due to the absence of an electronic records certificate under Section 106(4) of the Evidence Act. 36.To demonstrate continuous possession, the Respondents point to a demand letter they sent in February 2014 and received by the Appellant in March 2014, arguing that his subsequent claim of an earlier eviction was an unproved afterthought designed to escape accumulating rent arrears. They conclude that the lawful execution of distress for rent under the authority of the Nairobi Rent Tribunal is conclusive proof that the Appellant remained in legal possession up until the formal intervention. 37.Regarding the second dispute concerning special damages of 30,000 shillings for office renovations and security modifications, the Respondents support the trial magistrate's decision to reject the claim entirely. 38.They emphasize that these expenses were incurred exclusively during the first tenancy agreement, which officially lapsed in 2008 and was never a live issue before the trial court. 39.Even if the timeline had been relevant, the Respondents submit that the Appellant fundamentally failed to meet the strict legal standard of proof required for special damages under Kenyan law. 40.Finally, concerning the trial court's treatment of the Business Premises Rent Tribunal Case No. 415 of 2014, the Respondents argue against the Appellant's stance that the lower court erred in validating the tribunal orders. 41.They submit that a certified copy of the tribunal orders was appropriately filed in full compliance with Section 14 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act. 42.Consequently, the trial magistrate acted within her proper statutory jurisdiction to adopt and enforce those external orders to recover 60,000 shillings in rent arrears and 10,000 shillings in tribunal costs. 43.They assert that this statutory adoption perfectly aligns with the overriding "Oxygen Principle" codified in the Civil Procedure Act, which mandates the just, expeditious, and proportionate resolution of civil disputes. 44.Based on these arguments, the Respondents, pray that the entire appeal be dismissed and that they be granted the final costs of the proceedings alongside interest. 45.The issues for determination in this appeal are as follows;i.Whether the Appellant was unlawfully evicted from the suit premises.ii.Whether the trial court erred in law and fact by admitting and relying upon an unauthenticated copy of an ex-parte order from the Nairobi Business Premises Rent Tribunal.iii.Whether an unserved ex-parte tribunal order can retrospectively validate a physical lockout that occurred seven months prior to the issuance of the said order.iv.Whether the Respondents strictly proved their counterclaim for rent arrears and tribunal costs in accordance with the law.v.Whether the Appellant was contractually and legally entitled to compensation of KSh 30,000 for office security renovations. 46.Upon an exhaustive re-evaluation of the entire trial record, the oral and documentary evidence, and the relevant statutory frameworks, I find that the main argument in Respondents’ defence and counterclaim rests upon an ex-parte order from the Business Premises Rent Tribunal in Case No. 415 of 2014, purportedly issued on 17th July, 2014. 47.The trial magistrate heavily relied on this order to conclude that the Respondents possessed a valid judicial sanction that excused the locking out of the Appellant and justified the dismissal of his claim for illegal eviction and general damages. 48.This finding constitutes a profound misdirection in both law and fact. 49.As a matter of fact, the Appellant was locked out of his business premises and denied access on 21st November, 2013. 50.The purported ex-parte tribunal order allowing distress for rent and a break-in was extracted on 17th July, 2014. 51.It is a violation of the rule of law to argue that an order issued in July 2014 can retroactively legalize a physical, extra-judicial lockout that took place seven months earlier in November 2013. 52.Judicial and quasi-judicial orders operate prospectively from the date they are granted unless specifically stated otherwise by an explicit statutory framework. 53.A landlord cannot take the law into their own hands, padlock a tenant’s door, and then rush to a tribunal month later to secure an ex-parte cover-up for a completed illegality. 54.The Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Chapter 301 of the Laws of Kenya, was specifically enacted to protect tenants from arbitrary, extra-judicial evictions and lockouts. 55.By padlocking the premises on 21st November, 2013, without a subsisting court or tribunal order, the Respondents committed an unlawful eviction and acts of illegal conversion and detention of the Appellant's movable goods. 56.Furthermore, the trial magistrate erred by admitting the copy of the tribunal order into evidence in absolute disregard of the Best Evidence Rule and the strict statutory commands of the Evidence Act, Chapter 80 of the Laws of Kenya. 57.Section 67 of the Evidence Act explicitly mandates that documents must be proved by primary evidence, except in specific instances where secondary evidence is legally permissible. 58.To introduce secondary evidence of a judicial or tribunal record, Section 68 and Section 79 of the Act require the production of a certified copy signed and stamped by the authorized officer of that specific court or registry. 59.The Respondents produced a mere photocopy of an ex-parte order. 60.When the Appellant investigated the tribunal registry, he confirmed that no such file or order existed. 61.The Respondents failed to lay the necessary statutory foundation to justify the entry of secondary evidence, and they failed to offer a properly certified copy of the judicial record. 62.Moreover, the Respondents argued that the electronic pictorial evidence of the padlocked door introduced by the Appellant was inadmissible due to the absence of an electronic records certificate under Section 106B(4) of the Evidence Act. 63.While the Respondents are correct that the strictures of Section 106B(4) require a statutory certificate for electronic output, they overlooked the fact that the Appellant also provided solid oral and documentary evidence of the physical lockout on 21st November, 2013. 64.The burden of proof then shifted to the Respondents to demonstrate by what lawful authority they took possession of the premises on that date. 65.They failed to show any such authority. Instead, they attempted to leverage Section 14 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act to claim the trial court had a duty to adopt the tribunal order. 66.Section 14(2) of the Act clearly states that when a tribunal order is filed in a competent subordinate court, the Tribunal must transmit its full record of proceedings to be filed alongside it. No such record was transmitted or filed. 67.The trial court therefore lacked the legal jurisdiction to enforce or adopt a detached, unauthenticated photocopy of an order from an untraceable file. 68.Even if the ex-parte order had been authentic, the undisputed fact remains that it was never served upon the Appellant. 69.The Appellant only discovered its alleged existence five years later in 2019 through the Respondents' pleadings. 70.Under Order 40 Rule 4 of the Civil Procedure Rules, an ex-parte injunction order, together with the underlying application and supporting pleadings, must be served upon the affected party within three days of its issuance. 71.Failure to effect service within this mandatory timeframe renders the ex-parte order automatically spent, causing it to lapse and become a legal nullity after fourteen days. 72.This principle is deeply embedded in the tenets of natural justice and the right to a fair hearing. 73.A party cannot hide an ex-parte order in their desk drawer for five years and then brandish it in a subsequent civil suit as a valid sword to extract rent arrears or justify the continuous detention of a tenant's properties. 74.The order automatically abated and lapsed and the trial court could not validly enforce it to award the Respondents KSh 60,000 in rent arrears and KSh 10,000 in tribunal costs. 75.The Respondents' entire counterclaim was anchored on a legal nullity and should have been dismissed. 76.Turning to the issue of special damages, the Appellant sought KSh 30,000 for the installation of a security door and office modifications, relying on Clause 6 of the tenancy agreement which allocated security responsibilities to him. 77.The Respondents resisted this claim on the basis that these expenses were incurred during the first tenancy which expired in 2008. 78.This Court notes that special damages must not only be specifically pleaded, they must also be strictly proved with clean, unassailable evidence, such as receipts or invoices. 79.While the Appellant's eviction was unlawful, he did not produce the strict, itemized financial documentation at trial required to satisfy the high standard of proof for an award of special damages. 80.Submissions and references to contractual clauses alone cannot substitute for actual receipts of expenditure. 81.Consequently, the claim for KSh 30,000 in special damages was properly declined by the trial magistrate. 82.However, because the physical lockout and the subsequent detention of the Appellant's movable goods were entirely illegal, extra-judicial, and executed without a shred of valid legal authority, the Appellant is fully entitled to general damages for unlawful eviction, loss of business goodwill, and the immediate, unconditional release of his detained property. 83.The trial magistrate's judgment rewarded a gross abuse of process and allowed the Respondents to profit from a clear breach of contract and the tort of conversion. 84.For the reasons stated above, this Court orders that the appeal be and is hereby allowed. 85.The judgment and decree of the Senior Principal Magistrate delivered on 31st July, 2024, in Milimani CMCC No. 3936 of 2016 is set aside in its entirety. 86.The Respondents' counterclaim for rent arrears, tribunal costs, and storage fees is hereby dismissed. 87.The Respondents are ordered to immediately and unconditionally release all of the Appellant’s detained movable goods to him, or in default, pay financial compensation equivalent to the value of the goods at trial. 88.This Court finds that this appeal is highly meritorious and the same be and is hereby allowed. 89.The case is remitted back to the subordinate court solely for the assessment of general damages for unlawful eviction and loss of business, to be paid by the Respondents to the Appellant. 90.The Appellant shall have the costs of this appeal and the costs of the proceedings in the lower court, plus interest at court rates from the date of the judgment of the trial court (31st July, 2024), until payment in full. 91.Orders to issue accordingly. DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 25TH DAY OF MAY, 2026.………….…………….A. N. ONGERIJUDGEIn the presence of:Mr Julius Mbungei the Appellant present in personMr Mageto for the RespondentUbah – Court Assistant