https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11416

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAJIADO** **CIVIL APPEAL NO. E007 OF 2024** **KENYA SOCIETY FOR THE PROTECTION AND CARE OF ANIMALS……….APPELLANT** **-VERSUS-** **JOTHAM NYAVERA MUKHWANA ..........................................................RESPONDENT** (***Being an Appeal arising from the Judgment of the Honourable P. Achieng (SPM) in Civil Suit No. E035 of 2022 at the Senior Principal Magistrate's Court at Ngong delivered on 18th January 2024)*** **JUDGEMENT** **Introduction** 1. Before me is an appeal by the Kenya Society for the Protection and Care of Animals (the "**Appellant**") challenging the Judgment of the Senior Principal Magistrate at Ngong, delivered on 18th January 2024 in Civil Suit No. E035 of 2022. The trial court dismissed the Appellant's claim in its entirety and, on the Respondent's counterclaim, ordered the return of all animals belonging to the Respondent that were in the custody of the Appellant. Each party was ordered to bear its own costs. 2. The Appellant appeals on six grounds, substantially to the effect that the trial court erred in law and in fact in: 1. Failing to find that the Appellant had demonstrated a prima facie case with a high probability of success; 2. Failing to find that the Appellant was legally justified in seizing the animals owned by the Respondent; 3. Ordering the return of the seized animals to the Respondent; 4. Failing to find that multiple complaints had been made in relation to the Respondent's animal welfare violations; 5. Failing to consider the costs incurred by the Appellant in providing food, shelter, and medical care to the rescued animals; and 6. Failing to award the Appellant damages for those costs. 3. The Respondent, in addition to opposing the appeal on the merits, raised an objection to the competence of the appeal on procedural grounds. The parties have filed rival written submissions, which I have read together with the lower court record. **Issues for Determination** 1. Having considered the Memorandum of Appeal, the pleadings, the evidence at trial, and the submissions of counsel, I frame the following issues for determination: 1. Whether this appeal is properly before the court and whether this court has jurisdiction to determine it; 2. Whether the trial court erred in finding that the Appellant did not lawfully take and retain possession of the Respondent's animals; 3. Whether the Appellant was entitled to the reliefs sought — specifically, the permanent injunctions and special damages; 4. Whether the trial court was correct to order the return of the animals to the Respondent. **Analysis** **Issue I: Whether this appeal is properly before the court — Compliance with Section 79G of the Civil Procedure Act** 1. The Respondent raised an objection grounded in section 79G of the Civil Procedure Act, Cap. 21 (the "CPA"). That section provides: **"Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery of a copy of the decree or order: Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time."** 1. The facts are not in dispute. The trial court delivered judgment on 18th January 2024. The Appellant filed its Notice of Appeal on 16th February 2024, which was within the 30-day window. However, the Record of Appeal was not filed or served until 12th September 2024. This was approximately eight months after the delivery of the judgment and approximately seven months after the notice of appeal was filed. The respondent submits that since no Certificate of Delay was applied for or obtained from the subordinate court and that no application for leave to file out of time was made to this court, the appeal ought to be dismissed in its entirety. 2. The law on this point is settled. In order to set on foot a competent appeal, the appellant must either file within the prescribed period of thirty days or account for the delay by means of a Certificate of Delay issued by the subordinate court, or seek and obtain leave from this court upon demonstrating "good and sufficient cause" for the delay. See ***Ndegwa Kamau t/a Sideview Garage v Fredrick Isika Kalumbo* [2016] KEHC 5638 (KLR)** where the court held that: *"The preparation and delivery of the decree or order for the purpose prescribed in section 79G of the Act is not a pastime which one may choose to overlook but rather a mandatory ritual without which no legitimate appeal can be said to have been lodged in the High Court."* 3. The rule governing the time for which the Appellant ought to file their record of appeal before this court is order 42 rule 13 of the civil procedure rules. Unlike before the court of appeal, appeals before the high court do not have a specific prescribed period within which the appellant must file their record of appeal. In fact, the burden is placed upon the court to satisfy itself before allowing the appeal to go for hearing that the documents forming the record of appeal are on the court record and served upon all parties. This matter proceeded to hearing upon satisfaction of this requirement and the court therefore finds no merit in the respondent’s arguments. **Issue II: Whether the trial court erred in finding that the Appellant did not lawfully take and retain possession of the Respondent's animals** 1. This is the central issue in appeal. The guiding statute is the Prevention of Cruelty to Animals Act, Cap. 360, Laws of Kenya (the "**Act**"). The Appellant relies principally on sections 30, 31 and 32 of the Act. 2. Section 30 of the Act authorizes *any person* to take reasonable steps to prevent the commission of an offence under the Act where summoning an authorized officer or police officer would occasion unreasonable delay and unnecessary suffering to an animal. 3. Section 31 empowers an authorized office, on production of his authority or a police officer of or above the rank of Sub-Inspector to enter without warrant any premises where an offence is believed to have been or is about to be committed, and to seize any animal or thing believed to be evidence of an offence. **Critically, section 31(4) provides: "Every seizure under this section shall be reported without unnecessary delay to a magistrate."** Section 32(1) permits seizure of an animal where a person having charge of it is apprehended by an authorized officer or a police officer for an offence, and that seizure similarly **"shall be reported without unnecessary delay to a magistrate"** under section 32(3). Under section 32(1), costs of detention and veterinary treatment are recoverable from the owner — but *only in the event of a conviction*. 4. There is no dispute that the Appellant's employees were authorized officers within the meaning of section 36 of the Act. There is also no genuine dispute that the condition of the Respondent's horses at the time of seizure was poor and cause for concern, as evidenced by the letter of the Sub-County Veterinary Officer, Langata, Dr. JM Wanguru, dated 2nd July 2019. On these facts, the initial decision to seize the animals was not per se unlawful. 5. However, what decisively undermines the Appellant's entire legal position is what happened; or rather, did not happen; after the seizure. The uncontroverted evidence on record establishes that: 1. The seizure was never reported to a magistrate as mandated by sections 31(4) and 32(3) of the Act. This obligation is not discretionary, the word used is "shall". The failure to comply with this mandatory statutory requirement was fatal. 2. The Respondent was never charged with any offence under the Act. The animals were detained over two distinct periods, from 2019 and again from November 2021, without any criminal charge ever being preferred against the Respondent. 3. The animals were detained for an inordinately long time, several years, without any court order authorizing or supervising that detention. 4. The Acting County Director of Veterinary Services, Mr. Daniel K. Karugu, via correspondence dated 22nd March 2022, expressly directed that the horses be released to the Respondent, invoking the Respondent's constitutional rights under Articles 40 and 47 of the Constitution. The Appellant disregarded that direction. 6. The scheme of the Act is plain on its face. It provides for lawful seizure in two limbs, firstly as an interim, evidence-preservation power exercised in aid of criminal prosecution. Secondly as an interim protective or human measure for the animals where their charge is unable to take care of them on account of him being apprehended. Neither of the two provisions provides a standalone punitive tool available to civil claimants such as the appellant or any of the authorized officers under its employment. 7. This court, on a first appeal, must re-evaluate and re-assess the evidence on record and determine whether the conclusions of the trial court are to stand. On re-evaluation, I find the trial court's conclusions to be correct and well-grounded in law and in fact. I am bound not to interfere unless the decision was based on no evidence, was a misapprehension of the evidence, or was reached on wrong principles. 8. The statutory pathway for the two types of authorized seizures is clear (a) seizure; (b) report to magistrate; (c) charge and prosecute the owner; (d) conviction; and (e) only then may the costs of detention and care be recovered under sections 29(2) and 32(1). The Act did not contemplate nor authorize indefinite detention of an owner's animal’s absent prosecution. The trial court was therefore entirely correct in finding that the continued detention of the Respondent's animals without prosecution was unlawful. I shall proceed to deal with the issue of compensation in detail later on in this judgement. **Issue III: Whether the Appellant was entitled to the reliefs sought** 1. The reliefs sought by the Appellant at trial were: (a) a permanent injunction barring the Respondent from engaging in horse rearing, keeping, breeding, or any horse-related business; (b) a permanent injunction barring the Respondent from harassing the Appellant or interfering with animals in its custody; and (c) special damages of Ksh. 813,028/= for expenses incurred in treating, feeding, and housing the animals. **On the claim for a permanent injunction barring the Respondent from the horse business:** 1. A permanent injunction fully determines the rights of the parties before the court and perpetually restrains the commission of an act by the defendant in order to protect the plaintiff's legal rights. It is granted upon the merits of the case after evidence has been heard and evaluated. As was affirmed in ***Kenya Power & Lighting Company Ltd v Habib [2018] KEHC 5027 (KLR)***, the three sequential limbs of the Giella test (as distilled from ***Giella v Cassman Brown & Co. Limited [1973] EA 358***) and firmly entrenched in Kenyan jurisprudence in ***Nguruman Limited v Nielsen & 2 others [2014] KECA 606 (KLR)*** apply with equal force to permanent injunctions: the applicant must demonstrate (i) a clear and unmistakable legal right deserving protection; (ii) that damages would be an inadequate remedy; and (iii) that the balance of convenience favours the grant. 2. The Appellant did not satisfy the first limb. A permanent injunction barring a private individual from engaging in lawful trade or business is an extraordinarily drastic remedy. The Respondent has not been convicted of any offence under the Act. He has not been found, in any criminal proceeding with the proper procedural safeguards, to have committed a sustained pattern of cruelty that would justify permanent exclusion from his livelihood. The Constitution of Kenya, under Article 40(1), guarantees every person the right to acquire and own property, and under Article 47, the right to fair administrative action. To permanently bar a person from an entire category of lawful economic activity — in a civil suit, without a criminal conviction — would be a manifest violation of these constitutional guarantees and an affront to the rules of natural justice. 3. Significantly, the Act itself, under section 28, vests in a criminal court (and only in a criminal court, upon conviction) the power to disqualify a person from owning, possessing or controlling animals of a specified kind for such period as the court thinks fit. That power is exercised only where the court is further satisfied "by evidence of a previous conviction for an offence involving cruelty to an animal, or as to the character of the convicted person" that further offending is likely. Parliament's deliberate allocation of that power to criminal courts, conditioned on conviction, underscores that a civil court cannot grant, in a civil suit, relief that effectively amounts to the same disqualification without that statutory precondition being satisfied. 4. The prayer for a permanent injunction barring the Respondent from his horse-rearing business was therefore misconceived, legally incompetent, and properly rejected by the trial court. **On the claim for special damages (Ksh. 813,028/=):** 1. The Appellant sought to recover, as special damages, the costs of treating, feeding, and housing the Respondent's animals during the period of detention. Special damages must be specifically pleaded and strictly proved. See ***Jogoo Kimakia Bus Services LTD v Electrocom International LTD [1992] KECA 48 (KLR)*** 2. Under section 29(2) of the Act, a person who has incurred expenses in providing necessary veterinary treatment, food, or shelter for an animal may apply to court to be ordered compensation — but this remedy is available upon the conviction of the owner of an offence in relation to that animal. Section 32(1) similarly provides that the reasonable costs of detention and veterinary treatment are recoverable from the owner "in the event of a conviction…. be recoverable from the owner as if it such costs were a fine." There was no conviction here. 3. The Appellant relies on section 29(3)(a) of the Act which provides that nothing in section 29 prevents the taking of "any other legal proceedings" in respect of damage, injury, or expenses incurred to argue that it may sue in civil proceedings for these costs independently of criminal proceedings. I do not accept that construction. Section 29(3)(a) is a savings provision against double jeopardy; it ensures that the statutory compensation mechanism in section 29(1) does not bar separate civil proceedings. It does not create a free-standing right to recover care costs in civil proceedings where no conviction has been obtained and where the Appellant chose never to institute criminal proceedings in the first place. Such a construction, I find to be dangerously liberal and against parliament’s intentions. This would essentially allow anyone to unlawfully seize your property and charge you for the cost of holding it ransom. 4. Even if a civil claim for recovery of necessary expenses were theoretically available on the principles of unjust enrichment or quasi-contract, which Kenyan courts have recognized since ***Chase International Investment Corporation and Another v Laxman Keshra and 3 others [1978] KECA 7 (KLR)—*** such a claim would require the court to be satisfied, inter alia, that the expenses were incurred necessarily, that the owner has been unjustly enriched, and that the Appellant has clean hands. On the evidence, the Appellant incurred the expenses because it chose to continue detaining the animals unlawfully, in breach of its statutory reporting obligation, long after the statutory basis for detention had lapsed. Equity will not assist a party whose own non-compliance with mandatory statutory duties brought about the loss it now seeks to recover. The Appellant cannot launder an unlawful detention into a civil debt by suing the very owner whose animals it had no right to continue holding. 5. The claim for special damages was accordingly rightly dismissed. **Issue IV: Whether the trial court was correct to order the return of the animals** 1. On the Respondent's counterclaim, the trial court ordered the return of all of the Respondent's animals in the Appellant's custody. This was the correct and only proper order available. The animals remained the Respondent's property. Their continued detention without a magistrate's order and without criminal proceedings was unlawful and the Respondent's property rights under Article 40 of the Constitution entitled him to their return. 2. I find no merit in any of the six grounds of appeal. The appeal therefore fails in its entirety. **Determination** 1. For all the foregoing reasons, this appeal is dismissed in its entirety. The judgment of the Senior Principal Magistrate, Hon. P. Achieng, in Civil Suit No. E035 of 2022 delivered on 18th January 2024 is upheld. 2. Costs in this court shall follow the event and are accordingly awarded to the Respondent. 3. It is so ordered. **DATED, SIGNED AND DELIVERED AT GARISSA VITUALLY THIS 23RD DAY OF JULY 2026** **J.T. LOLWATAN** **JUDGE**