[2024] KEHC 10703 (KLR)

Omondi v Kassam & another (Civil Appeal E018 of 2024) [2024] KEHC 10703 (KLR) (11 September 2024) (Judgment)

Neutral citation: [2024] KEHC 10703 (KLR)

Republic of Kenya

In the High Court at Kisumu

Civil Appeal E018 of 2024

RE Aburili, J

September 11, 2024

Between

Hon George WM Omondi

Appellant

and

Nishad Hassanally Kassam

1st Respondent

JO Josiah T/A Nyaluoyo Auctioneers

2nd Respondent

(An appeal arising out of the Judgment & Decree of the Honourable G.C. Serem in the Chief Magistrate’s Court at Kisumu delivered on the 10th January 2024 in Kisumu CMCC No. E155 of 2021)

Judgment

Introduction 1. Beddings? Does this term sound familiar and is there anyone out there who does not know what beddings are? There are certain terms and things that most of us take for granted and consider to be so insignificant. They seem not to attract any attention of anyone because they are obvious, after all. This is not until a dispute arises for determination by a court of law. Thus, in common parlance, does anyone need to be told what beddings are? and what business does the court have in trying to define for people what beddings are? Even our legislators have not attempted to define what beddings are in the statutes. As will be observed in this judgment, that omission to define what beddings are in the Distress for Rent Act, Chapter 293 of the Laws of Kenya, has made it necessary for this court, in its determination of this dispute, to look all over the place for the meaning of the word beddings. But before I define that term, let me take you through the cause of action herein that has necessitated the definition of the term “beddings” and its significance in these proceedings.

2. The appellant herein Hon. George W.M. Omondi instituted suit against the respondents Nishad Hassanally Kassam and J.O. Josiah trading ad Nyaluoyo Auctioneers, vide a plaint dated 29th March 2019 in which he sought a return of all attached property or in the alternative, payment of the value of the said attached property and further, the return of the undistressable property proclaimed by the 2nd respondent Auctioneer J.O.Josiah Trading as Nyaluoyo Auctioneers.

3. It was the appellant’s case that he was a tenant of the 1st respondent at Apartment D4, Lakeside Grove Apartments in Kisumu where he lived occasionally and that he had fallen into rent arrears.

4. The appellant averred that he was not aware of the distress for rent undertaken by the respondents and that the legal process was not followed. Further, that some of his items were not disclosed as having been attached and sold.

5. The respondents filed a joint statement of defence dated 19th July 2021 denying the appellant’s allegations and put the appellant to strict proof thereof. The respondents further denied liability to the appellant in toto.

6. In her judgement, the trial magistrate found that it was right for the landlord to levy distress as the appellant was in arrears and that this was lawfully done. Further, that the auctioneer, the 2nd respondent, did give the appellant sufficient notice. As regards the claim that non distressable goods were distressed, the trial magistrate found that the appellant failed to prove on a balance of probabilities that his personal belongings were proclaimed. The trial court thus found that the appellant had failed to prove his case and dismissed it.

7. Aggrieved by the said decision, the appellant filed a memorandum of appeal dated 30th January 2024 raising the following grounds of appeal:1. That the honourable court erred in fact and in law in arriving at a decision that is biased and contrary to the evidence adduced before the court.2. That the honourable court erred in fact and in law in arriving at a decision which was contrary to the law prescribed in the Auctioneers Act and impartiality.3. That the honourable court erred in fact and law in making a decision akin to that the appellant having defaulted in payments of rent had no recourse at all at law.4. That the honourable court erred in law and fact in making no finding on the property that was illegally distressed.5. That the honourable court erred in law and in fact in making no findings and determination at all on the property that was distressed, advertised for sale but not sold and not released to the appellant.6. That the honourable court erred in law in making a determination that was out rightly biased and contrary to the law as enshrined in sections 6 and 16 of the Distress for Rent Act.7. That the honourable court erred in law and in fact in dismissing the appellant’s case with costs despite proof that the rental arrears were over paid, the appellant’s goods distressed including undistressable property, and no disclosure on the whereabouts of the properties not sold and undistressable properties.8. That the honourable court erred in fact and law in disregarding in totality of the law on Distress for Rent Act.9. That the honourable court erred in fact and law in holding in favour of the respondents who acted contrary to the orders of the court purporting to rely on the same to allow break in the property for purposes of distress.10. That in totality, the honourable court’s determination is one which is highly charged with disrespect of the law and highly partial of the evidence adduced before her.

8. The appeal was canvassed by way of written submissions.

The Appellant’s Submissions 9. The appellant’s counsel submitted that some of the goods that were distressed were not sold yet they were the most important assets as evident in the list of items sold at the auction conducted on the 5. 11. 2019 and further that having realised his cost and paid off the rent arrears, the auctioneer was not entitled to keep the property that he did not sell which was beyond the limits of his action which is against the appellant’s property rights enshrined in Article 40(2) of the Constitution and Section 3 of the Distress for Rent Act.

10. It was submitted on behalf of the appellant that on cross-examination, the auctioneer conceded that those properties were not sold and that as such, they still belonged to the appellant and should be returned or in the alternative their worth value paid.

11. It was submitted that the fact that a tenant was in rent arrears did not open the door to all vagaries of the world against him and such tenant could only be distressed to the extent of what he owed the landlord. He further submitted that he had fully paid the rent and even overpaid yet his properties were attached and sold.

12. It was submitted that the auctioneer attached non-distressable goods as listed at page 27 paragraph 6 of the Record of Appeal contrary to the provisions of section 16 (2) of the Distress for Rent Act which the trial court erred by ignoring.

13. The appellant submitted that the trial court erred in stating that all the goods attached were not exempted goods as provided under section 16 (d) and (g) of the Act and thus arrived at a wrong decision despite the fact that the evidence in court both by the auctioneer on cross-examination and on his proclamation confirmed that exempted goods were attached.

14. It was submitted that the distress was illegal as the court order relied on by the auctioneer did not allow entry into apartment D4 which was only for use as a residential property and thus as the auctioneer did not bother to change this order or get the right court order, he was therefore in error to have broken into the house.

15. The appellant submitted that the auctioneer disobeyed the rules that protect the processes under which he operated and thus it was evident that his action was fraught with ill intentions of self-enrichment and that explained why he did not give an account of what he had sold to his instructor.

16. The appellant thus submitted that in view of these serious transgressions on the part of the Auctioneer and flagrant disrespect of the law, this court ought to hold it right that the Auctioneer did violate his mandate and he should, to that extent, pay the Appellant special damages for the items attached against the law and items attached but not sold and not reinstated to the Appellant.

The Respondents’ Submissions 17. On behalf of the respondents, it was submitted that the appellant was a lawful lessee of the 1st respondent where he had accrued rental arrears of Kshs. 480,000 as at July 2019 and thus the distress for rent against him and subsequent public auction held on 5th November 2019 were conducted in accordance with the laid down procedure.

18. The respondents’ counsel submitted that a valid court order to levy distress for rent against the appellant was obtained after various demand notices to the appellant were not adhered to. It was further submitted that the locking of the door to the premises by the 1st respondent was purposely to secure the premises as leaving the door open would have posed a security threat and such action cannot be relied on to argue that the appellant was evicted.

19. It was further submitted that the appellant’s submissions that the said court order was wrong on the basis that it had been indicated in the said order as business premises and not residential premises was neither here nor there as there was no confusion as to which premises were being referred to and that the order clearly indicated that a proclamation notice be issued against the appellant for purposes of distress for rent and it also authorised the 2nd respondent to access and or gain access to the suit premises and proclaim the appellant’s goods.

20. It was submitted that the 1st respondent demanded for rent arrears which totaled Kshs. 360,000 at the end of April 2019 vide a letter dated 2. 5.2019 sent to the appellant by registered post, which letter was received by the appellant who sought 60 days’ indulgence and also authorised his advocates to issue an undertaking which never materialized. The respondents further submitted that by July 2019, the rent arrears had increased to Kshs. 480,000 and vide a letter dated 17. 7.2019, the 2nd respondent issued a demand letter for payment of the arrears failing which they would seek orders to gains access to the premises and distrain for rent arrears.

21. The respondents submitted that subsequently on the 5. 8.2019, the 2nd respondent obtained a court order to gain access to the premises and for issuance of proclamation notice which was served on the appellant on the 8. 8.2019 vide registered post and that contrary to the appellant’s submissions, the 2nd respondent did not carry away the goods on the date of proclamation but on expiry of the proclamation notice which was after 14 days.

22. It was submitted that the 2nd respondent sent another notification of sale dated 15. 10. 2019 to the appellant by registered post informing him of the values placed on the proclaimed goods and further informing him that the goods would be sold by public auction on 5. 11. 2019 unless he paid the rent arrears and there being no response and no payment from the appellant even after the advertisement of the public auction in the star newspaper of 24. 10. 2019.

23. The respondents thus submitted that the appellant’s allegation that he did not receive any letter from the respondents including the proclamation, court order and notification of sale was an afterthought and unsustainable.

24. The respondents relied on the case of Patricia Jean Louis v New Maintenance Services (K) Limited [2019] eKLR where the court held interalia that section 3 as read with section 4 of the Distress for Rent Act do not require a landlord to give notice before distressing for unpaid rent rather a notice of 14 days is only required to be served on the tenant after distress has been levied requiring him/her to pay the arrears.

25. The respondents submitted that no personal items were attached and later sold by public auction as was evident from the copy of proclamation produced as DEX-13 by the respondents and were thus not excluded by virtue of section 16 of the Distress for Rent Act. It was submitted that the items claimed by the appellant as personal items including shoes, trousers, flasks, cooking pans, inner wear etc were not listed in the proclamation and that there was no proof that they existed.

26. The respondents submitted that the values purportedly attached to the items listed by the appellant are grossly exaggerated as confirmed by the appellant in cross-examination when his case was reopened.

27. It was submitted that 13 months after the auction, the appellant sent the 1st respondent’s advocate a cheque for Kshs. 840,000 on 2. 6.2020 from which the 1st respondent recovered rent arrears, service charges, utility bills, legal charges and repairs as the 1st respondent had not realised any amount from the auction and that subsequently, the 1st respondent’s advocate later received a cheque for Kshs. 240,000 on 20. 7.2020 being an overpayment and which was returned to the appellant.

28. Accordingly, it was submitted that the appellant’s submission that the process for levying of distress was flouted as the appellant had paid up the rent arrears was misleading and untrue as payment of the same was made 13 months after the auction and as such, this court ought to find that the properties distressed were distressable properties and that all the properties that were attached were sold in accordance with the law.

29. It was submitted that the appellant did not suffer any loss and damage as a result of the distress for rent as the same was conducted in accordance with the laid down procedure in the Distress for Rent Act and thus the appellant was not entitled to any damages.

30. The respondents further submitted that the appellant failed to prove that the distress for rent was not conducted in accordance with the provisions of the Distress for Rent Act and therefore failed to prove his case on a balance of probability against them and as such, this court ought to uphold the lower court’s judgment and dismiss the instant appeal with costs to the respondents.

Analysis and Determination 31. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and reach its own conclusions. It must, however, bear in mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing them first-hand and therefore give an allowance for that. In Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR, the court stated as follows-“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.”

32. I have considered the pleadings, evidence, grounds of appeal and submissions for and against the appeal herein. The issues for determination are: whether the trial court failed to make a finding on the property exempted from distress; whether there was a failure to make a finding on the property distressed, advertised for sale but not sold and not released to the appellant; and whether the trial court erred in fact and law in dismissing the appellant’s suit and if so, what orders should this court make?

33. The appellant’s case before the trial court was that the respondents wrongfully attached his properties and in disregard of the Distress for Rent Act and that they proceeded to illegally and unlawfully sell the said goods. He also claimed that the goods distrained were exempted goods and that some of the goods in issue were neither sold nor returned to him.

34. In his own testimony on oath, the appellant admitted that he was in rental arrears to the 1st respondent but denied receiving any notification of proclamation and the subsequent disposal by way of sale of the said goods proclaimed. He faulted the 2nd respondent for using a wrong court order in breaking into the residential premises and further lamented that the 2nd respondent proclaimed non-distressable goods. Finally, it was the appellant’s case and submissions both before the trial court and this court that the respondents proceeded to sell his goods despite him paying the said rent arrears and even overpaying the same.

35. On their part, the respondents’ defence and submission was that the appellant fell into rental arrears and that despite demand for settlement of the same, the appellant ignored the same forcing the respondents to initiate the process of levying distress for rent. That throughout the process, they sent to the appellant the requisite notices which were ignored leading up to the distress and public auction and that eventually, the appellant settled the arrears 13 months after the public auction and that after settling their lawful arrears, they refunded to him the excess amount.

36. I have considered the evidence on record as well as the submissions made by both parties before this court. The law is clear that he who alleges must proof. Burden of Proof is used to mean an obligation to adduce evidence of a fact. According to Phipson on the Law of Evidence, the term ‘burden of proof’ has two distinct meanings:1. Obligation on a party to convince the tribunal on a fact; here we are talking of the obligation of a party to persuade a tribunal to come into one’s way of thinking. The persuasion would be to get the tribunal to believe whatever proposition the party is making. That proposition of fact has to be a fact in issue. One that will be critical to the party with the obligation. The penalty that one suffers if they fail to proof their burden of proof is that they will fail, they will not get whatever judgment they require and if the plaintiff they will not sustain a conviction or claim and if defendant no relief. There will be a burden to persuade on each fact and maybe the matter that you failed to persuade on is not critical to the whole matter so you can still win.

2. The obligation to adduce sufficient evidence of a particular fact. The reason that one seeks to adduce sufficient evidence of a fact is to justify a finding of a particular matter. This is the evidential burden of proof. The person that will have the legal burden of proof will almost always have the burden of adducing evidence.

37. Section 107 of Evidence Act defines Burden of Proof as– of essence the burden of proof is proving the matter in court. subsection (2) Refers to the legal burden of proof.

38. Section 109 of the Evidence Act exemplifies the Rule in Section 107 on proof of a particular fact. It is to the effect that the burden of proof as to any particular fact lies on the person who wishes to rely on its existence. Whoever has the obligation to convince the court is the person said to bear the burden of proof. Thus, if one does not discharge the burden of proof then one will not succeed in as far as that fact is concerned.

39. In this case, the onus was on the appellant to prove that the respondents’ actions of levying distress for rent was unlawful and contrary to the laid down procedure in the Distress for Rent Act as a result of which the appellant suffered loss and damages for which he ought to be compensated. The appellant was also under a duty to establish that some of the distressed goods were exempted from distress and that some of the distressed goods were never sold yet they were never returned to him hence the prayers for the return of their value paid to him.

40. The common law position in cases similar to the present one is clearly spelt out in the case of WALSH vs LONDSDAIE as follows:“A lessee in occupation under an executory lease is subject to the same right of distress as if a lease had been granted and if ------ under the terms of the lease rent would have been payable then distress is lawful”“In light of the above, I find that the defendant was entitled to distrain for rent due in accordance with clause 16 of the Memorandum of Agreement.”

41. In Royal Gardens Hospital v Ebrahim Omenyi Amwere & Another (Civil Suit Number 10/2018, the High Court Kakamega) the court reiterated the right of a landlord to distress for rent when a tenant fails to pay rent. The court stated as follows inter alia:“10. The Kenyan statute is rather skeletal in its provisions on the subject, and therefore guidance is to be had from the English common law. The general position in law is that a landlord is given a right to seize and remove certain goods from the possession of the tenant in order to compel him to pay rent due. If thereafter the tenant fails to pay the rent due after seizure the same is sold by auction. There are two prerequisites for the right to distrain for rent. One, there must exist a landlord and tenant relationship, at the time when the rent falls due as well as when distress is levied. Secondly, the rent must be in arrears. Being in arrear means that the amount due is ascertained, due and unpaid. The rent payable by the tenant must be certain, otherwise the right to distrain would not be available.”

42. Thus, where a tenant fails to pay rent altogether, the landlord has the right to levy distress for unpaid rent. This remedy is best exercised by engaging the services of an auctioneer. Distress for rent by the landlord involves seizing of the tenant’s goods within the premises for which rent is owed without the need to commence litigation. See Distress for rent is governed by the Distress for Rent Act, which prohibits landlords from levying distress for rent at night and on Sundays. The law also prohibits landlords from seizing tools of trade, perishable goods, goods belonging to third parties, clothes and beddings and pets.

43. Once the goods are seized, the tenant is expected to pay the rent owed as well as the cost of seizing the goods within 14 days. If the same is not paid, the landlord is at liberty to auction the goods to recover the amount owed.

44. This right to levy distress is provided for under section 3 of the Distress for Rent Act, Cap 293 of the Laws of Kenya as follows:3. (1)Subject to the provisions of this Act and any other written law, any person having any rent or rent service in arrear and due upon a grant, lease, demise or contract shall have the same remedy by distress for the recovery of that rent or rent service as is given by the common law of England in a similar case.(2)No distress shall be levied between sunset and sunrise or on any Sunday.

45. The court in Peter Nthenge v Daniel Itumo & another [1976] eKLR stated that the right of a landlord to distrain for arrears of rent arises at common law and it enables the landlord to secure the payment of rent by seizing goods and chattels found upon the premises in respect of which the rent or obligations are due. Thus under common law, the law allowed the defendant to levy for distress in the case where the plaintiff was in rent arrears. The right of distress therefore arises if it is established that rent is in arrears.

46. In the instant case, there is no dispute that the appellant was the tenant in the 1st respondent’s premises and that he was in rental arrears. The appellant admitted as much in his testimony and stated that he received the demand from the 1st respondent and send it to his advocates who, on his behalf, sought a 60 days’ indulgence from the 1st respondent and further issued an undertaking on the same which never materialized.

47. There is therefore no doubt that the appellant tenant herein was in arrears of rent at the time that the 1st respondent Landlord sought to levy distress. The evidence on record shows that the payment of the said arrears was only done after the distress had been levied and more so, 13 months after the distressed goods had been sold but not realised the rental arrears claimed. I therefore find that the Landlord’s right to levy distress for rent had crystalized and that he was within his rights so to do.

48. The trial court record reveals that the 1st respondent demanded for rent arrears which totaled Kshs. 360,000 at the end of April 2019 vide a letter dated 2. 5.2019 sent to the appellant by registered post, which letter was received by the appellant who sought 60 days’ indulgence and he also authorized his advocates to issue an undertaking which never materialized.

49. I further also note that by July 2019, the rent arrears had increased to Kshs. 480,000 and vide a letter dated 17. 7.2019, the 2nd respondent auctioneer issued a demand letter for payment of the arrears failing which they would seek orders to gain access to the premises and distrain for rent arrears.

50. Subsequently on the 5. 8.2019, the 2nd respondent obtained a court order to gain access to the premises and for issuance of proclamation notice which was served on the appellant on the 8. 8.2019 and that the 2nd respondent sent another notification of sale dated 15. 10. 2019 to the appellant by registered post informing him of the values placed on the proclaimed goods and further informing him that the goods would be sold by public auction on 5. 11. 2019 unless the appellant paid the rent arrears and there being no response and no payment from the appellant even after the advertisement placed for the public auction in the star newspaper of 24. 10. 2019, the 2nd respondent proceeded to carry out the public auction on the 5. 11. 2019.

51. Taking all the aforementioned into consideration, I am invited to consider what constitutes illegality of distress for rent. In the case of Cyo Owaya v George Hannigton Zephania Aduda T/a Aduda Auctioneers & Another [2007] e KLR, the Court of appeal held that:“Under Section 3(1) of the Distress for Rent Act, in looking at what constitutes illegality of distress for rent, the court must not only consider our laws, but must also consider what in England would be considered an illegality in the levy of distress. An illegal distress is one which is wrongful at the very outset, that to say either where there is no right to distrain or where a wrongful act was committed at the beginning of the levy invalidating all subsequent proceedings.” The following are instances of illegal distress:“A distress by a landlord after he has parted with his reversion; a distress by a person in whom the reversion is not vested; a distress when no rent is in arrears; or for a claim or debt which is not rent; as a payment for the hire of chattels; a distress made after a valid tender of rent has been made; a second distress for the same rent; a distress off the premises or on the highway; a distress in the night that is between sunset and sunrise .... a distress levied or proceeded with contrary to the Law of Distress.

52. On the other hand, Section 15 of Distress for Rent Act provides thus:“Where distress is made for any kind of rent justly due, and any irregularity or unlawful act is afterwards done by the party distraining, or by his agents, the distress itself shall not be therefore deemed to be unlawful nor the party making it be deemed a trespasser ab initio, but the party aggrieved by the unlawful act or irregularity may recover full satisfaction for the special damage he has sustained thereby in a suit for that purpose.”

53. Based on the evidence on record and the above authorities, Iam not persuaded by the appellant’s argument that the distress levied by the respondents was illegal and wrongful. It is clear that the appellant was in rental arrears and was well aware of the 1st respondent’s demand for rental arrears. The appellant then instructed his advocates to act on the demand and seek for 60 days indulgence and even gave an undertaking. Can the appellant therefore later claim that he was not aware of the proclamation and therefore the distress levied? The answer is a big no.

54. The appellant further argued that the 2nd respondent used a wrong court order in breaking into the premises as the order relied on by the auctioneer did not allow entry into apartment D4 which was only for use as a residential property and thus as the auctioneer did not bother to change this order or get the right court order, he was therefore in error to have broken into the house.

55. The court order in question was issued in the Chief Magistrate’s Court at Kisumu in Civil Miscellaneous Application No. 127 of 2019 in the following terms:“1. That the Officer in-charge of Winam Administration Police Station and or any other Police Station in the Republic of Kenya be and hereby ordered to provide reasonable and adequate security to NYALUOYO AUCTIONEERS, During the issuance of a proclamation notice to GEORGE W.M. OMONDI, for purposes of distress for rent of against the said GEORGE W.M. OMONDI, the Tenant/Debtor, at Apartment No. D4, within Kisumu Municipality Block 12/42 within Kisumu Town.

2. That M/S NYALUOYO AUCTIONEERS, be and are hereby permitted and or authorised to gain access and or enter the business premises of the Debtor/Tenant to enable NYALUOYO AUCTIONEERS, proclaim the Debtor’s/Tenant’s goods currently in the business premises as required by law.”

56. In my reading of the order as issued, I find that there was no confusion as to which premises were being referred to. That order clearly indicated that a proclamation notice be issued against the appellant for purposes of distress for rent and it also authorised the 2nd respondent to access and or gain access to the suit premises for which the rent was due and unpaid in arrears and proclaim the appellant’s goods both at his residence at Apartment No. D4 on Plot No. Kisumu Municipality Block 12/42 and at the tenant’s business premises. There is however no evidence that there was any distress undertaken at the appellant/tenant’s business premises which were not even disclosed.

57. On whether the court order for break in was necessary, the case of Royal Gardens Hospital v Ebrahim Omenyi Ambwere & another [2018] eKLR is relevant where the learned Judge stated s follows and I agree that:“11. The principal issue before me is under whose authority distress should be carried out. The Distress for Rent Act and the common law do not require that the same be founded on a court order. Indeed, according to the Halsbury’s Laws of England, Third Edition Vol. 12 page 115, leave of court to distrain must be obtained before the right to distrain can be exercised only where the tenancy is controlled and where the tenant is a serviceman not serving under regular engagement or dependents of such as service man. All what is required is that the same be carried out by a certified bailiff. Certification of bailiffs, according to section 18, is by the court, but that should not be read to mean the bailiff acts upon the court having decreed the levy of distress. All what the bailiff, in Kenyan lingo that would a court broker or auctioneer, would need are instructions or a warrant from the landlord to carry out the exercise. The warrant or instructions is necessary as it gives the bailiff the right which accrues to a landlord, or the person employing or instructing him, to enter the premises for the purpose of levying distress for rent. Where entry is resisted there may be need to obtain court orders to access the premises and to seize the chattels. It should be emphasized that court action should only be necessary in such circumstances. The only other requirement is that the bailiff serves a notice on tenant of the amounts for which distress is being levied, and the notice should include a computation of authorized fees, charges and expenses. At common law no such notice was necessary as the tenant was presumed to know what was in arrear regarding the property he occupied.”

58. For the above reasons, therefore, I find that the appellant’s claim that the order was wrongful is devoid of any merit.

59. The appellant further claimed that the 2nd respondent attached non-distressable goods as listed in the plaint and in his submissions, contrary to the provisions of section 16 (2) of the Distress of Rent Act and that the trial court erred by ignoring to make a finding on the same.

60. The appellant listed the alleged non-distressable goods at paragraph 14 of his plaint as follows:a.Shoes 4 pairsb.Trousers 5 pairsc.Shirts 10 casuald.Bed, pillows, slumber land mattresses Kshs. 79,544e.Bedding, bedsheets 2 pairs, 2 blankets, queen and size bedcover 2 molen, 2 pillowsf.Carpetg.Plates assortedh.Cups assortedi.Cooking pans 10 piecesj.Inner wears 20 piecesk.Sleeping gowns, pajamas 3 pieces

61. Section 16 (1) of the Distress for Rent Act lists down Articles that are exempted from distress. The said section provides that:“16. (1)The following goods and chattels shall be exempt from distress for rent –(a)the property of the Government;(b)goods or chattels in the possession of the law;(c)things delivered to a person exercising a public trade, to be carried, wrought, worked up or managed in the way of his trade;(d)things in actual use or occupation of the person distrained upon at the time of the distress;(e)things of a perishable nature, or such as cannot be restored again in the same state and condition that they were before being taken or must necessarily be damaged by removal of severance;(f)animals feræ naturæ;(g)wearing apparel and bedding for the persons whose goods and chattels are being distrained upon and the tools and implements of his trade to the total value of one hundred shillings;(h)things exempted from distress under the Electric Power Act; and(i)any meter (together with any fittings thereto) supplied and let on hire by a corporation or company supplying water to the premises on which the distress is levied for the purpose of ascertaining the quality of water consumed on or supplied to those premises.

62. On their part, the respondents averred that no personal items were attached and later sold by public auction as was evident from the copy of proclamation produced as DEX-13 by the respondents and that those proclaimed goods were thus not excluded by virtue of section 16 of the Distress for Rent Act. The said proclamation notice listed the goods as follows:Four burner electrical/gas cookerDining table with four chairs2 Seater Sofa set1 LG Fridge1 Coffee table with two stools1 Sony TV 21’ & Startimes Decoder1 Electric Kettle & 3 sufurias1 Gas cylinder 13KG1 Bed 5x6, Mattresses & Beddings1 suit case and three sets of curtains.

63. I note that among the items distressed were and as per the proclamation, a bed size 5x6, a mattress and beddings. The 2nd respondent does not provide a list what ‘beddings’ were distressed.

64. The Act exempts from being distrained tools of trade, beddings and clothing apparel. However, there was no evidence adduced by the appellant as to the other exempted goods that he listed and alleged were non-distressable.

65. On whether the distressed goods inclusive of those exempted were sold after the payment of the rent arrears, I find that this allegation is not well founded because the evidence on record by way of the proclamation notice produced by the respondent show that the 2nd respondent stayed with the goods and the same were not sold immediately but rather two months after proclamation at which time the appellant never complained about them or assert that any of the goods attached were tools of trade or exempted from being distrained. That in itself does not, however, justify distraint and sale of exempted good.

66. Thus, the appellant’s claim that the respondents proceeded to auction off his goods despite the fact that he had settled the arrears was not supported by evidence on record which reveals that this was a misleading and an untrue statement as payment of the same was made 13 months after the auction. The trial court record reveals that the appellant sent the 1st respondent’s advocate a cheque for Kshs. 840,000 on 2. 6.2020 from which the 1st respondent recovered rent arrears, service charges, utility bills, legal charges and repairs as the 1st respondent had not realised any amount from the auction and that subsequently, the 1st respondent’s advocate later received a cheque for Kshs. 240,000 on 20. 7.2020 which, being an overpayment, was returned to the appellant.

67. I therefore find that this allegation by the appellant is devoid of merit and proceed to dismiss it.

68. On the issue of the exempted goods, I have already reproduced section 16 of the Distress for Rent Act which prohibits distress of exempted goods and the section goes ahead to list what those exempted goods are. The appellant asserted and submitted that the trial court failed to make any finding on the property exempted from distress for rent.

69. I have read the impugned judgment. At paragraph 14 thereof, the trial magistrate posed the question; On the issue of whether goods that are not distrassable were distressed? and she continued to answer that question by listing the items which the appellant had claimed were exempted from distress yet they were distressed. She also reproduced section 1 of the Distress for Rent Act.

70. The trial court at paragraph 16 then stated as follows:“The proclamation notice produced by the respondent did not list any of the above goods as per the Act. There was nothing to prove that indeed the items were in the House and were proclaimed at the time of the proclamation. The plaintiff did not proof on a balance of probability that indeed, his personal belongings were proclaimed. Based on the court finds that there was no proof of un distressable items being distressed.”

71. The question is, is the above finding correct, from the evidence on record? I have perused the trial court record and I find that indeed, some of the items listed by the appellant as having been personal items which were exempted from distress were not listed in the proclamation.

72. However, it is not correct to say that none of the items listed in the proclamation were non distressable. I say so because the proclamation dated 8/8/2019 and filed into court by the 2nd respondent auctioneer on 22nd July, 2021 lists among others, the following items: One bed 5x6, mattress and (beddings) condition: Good and value being Kshs 5,000 In addition, the Notification of Sale dated the same day lists the following items, among others, bed 5x6, mattress and beddings. Further, the Advertisement in the Star Newspapaer dated 24th October 2019 shows that the items advertised for sale included the following: 1 bed 5x6 mattress and beddings.

73. Before I go to the remedy available, the question is whether the highlighted items which were distressed are exempted items. Section 1(1) of the Distress for rent Act exempts from being distressed, beddings. The 2nd respondent on behalf of the 1st respondent, distressed and proclaimed and sold beddings together with a bed and a mattress.

74. The question is, are mattresses and beds beddings? The Distress for Rent Act does not define what beddings are and neither does it mention whether mattresses and beds are part of the beddings. It therefore compels this court to look for a judicial definition of the word beddings and to determine whether beds and mattresses are included in that definition.

75. Strauds Judicial Dictionary of Words and Phrases, Sixth Edition defines beddings to mean a.The articles which compose a bed especially the mattress etc and the bedclothes.b. Anything used to sleep on or in.

76. In the English Queens Bench Case of Davis v Harris[1900] 1QB (Court of Appeal), the question arose in a Landlord /Tenant Distress for Rent case on what things were privileged from distress and therefore whether beddings included a bedstead used by the tenant as part of his sleeping accommodation. The tenant had claimed before the lower court that the landlord had carried out an illegal distress by taking a bedstead from the tenant’s house, removing beddings from it and selling the bedstead. The Magistrate held that a bedstead was not a bedding. There was also no precedent from the High Court on the issue hence the magistrate interpreted the section strictly.

77. The learned Judges on appeal per Channel J Bucknil J faulted the magistrate for interpreting the statute strictly and in holding that the word ‘bedding’ did not include a bedstead in the Act in question and opined that:“What is the meaning of “the bedding” of the person in question? We are justified, in my opinion, in reading those words as meaning whatever he has for the purposes of sleeping accommodation. If he sleeps on a mattress laid on the floor, the mattress is his “bedding”; and if he has a bedstead and mattress, they are his “bedding”; and if his mattress has gone and he sleeps upon the bedstead, that is his “bedding” within the meaning of the Act. That interpretation may, I think, be fairly applied to the tenant’s bedstead in the present case, which was protected by the statute from seizure if the bedstead and bedding did not exceed the value of 5l. It was a thing used as part of the tenant’s sleeping accommodation, and it was, therefore, his “bedding”. The case must go back to the magistrate with this intimation of our opinion.”

78. From the above judicial pronouncement, though persuasive, as there is no definition of the word “bedding” in the Kenyan Statutes and neither have I come across such definition in judicial pronouncements, I am persuaded to hold that section 1 of the Distress for rent Act must not be read strictly as to exclude a bed and mattress from what comprises beddings.

79. Accordingly, I find and hold that the bed, 5x6, mattress and beddings as distrained and proclaimed from the appellant’s house and sold comprised beddings, which are exempted items. Having said so, I fault the learned trial magistrate for not the finding that there were items which were exempted from distress but which were distressed and these items are the bed 5x6 and mattress.

80. Having so found, what then is the remedy for the appellant since the above stated exempted items were already sold?

81. Under section 16(2) of the Distress for Rent Act:“(2)A subordinate court, on complaint that goods or chattels exempt under this section from distress for rent have been taken under that distress, may by summary order direct that the goods and chattels so taken, if not sold, be restored; or if they have been sold, that such sum as the court may determine to be the value thereof shall be paid to the complainant by the person who levied the distress or directed it to be levied.”

82. The section empowers the subordinate court to order for restoration of exempted items and if sold, to order for the value thereof to be paid to the complainant tenant.

83. This Court is not a subordinate Court. Accordingly, I shall not make any Orders as to restoration or payment of the value of the exempted items to the complainant by the landlord. This is because the trial magistrate failed to pronounce herself on whether there were any exempted items and now this court having found so, I must remit the matter back to the subordinate court to make a finding on the value of the said exempted items as sold and make appropriate orders as stipulated in section 16(2) of the Distress for Rent Act.

84. This power of this Court to remit or remand a case to the trial court is also found in section 78 of the Civil Procedure Act which provides:“78. Powers of appellate court(1)Subject to such conditions and limitations as may be prescribed, an appellate court shall have power—(a)to determine a case finally;(b)to remand a case;(c)to frame issues and refer them for trial;(d)to take additional evidence or to require the evidence to be taken; (e) to order a new trial.(2)Subject as aforesaid, the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Act on courts of original jurisdiction in respect of suits instituted therein.

85. As the power to make appropriate orders are donated by the parent statute to the Magistrate’s Court, I shall not exercise those powers even if the Civil Procedure Act delegates those powers to this Court, noting that the Distress for Rent Act was enacted in 1982 whereas the Civil Procedure Act under section 78 were enacted in 1924. This is in accordance with the rules of statutory construction that if statutes are in conflict, the later statute prevails over the earlier statute, unless the earlier statute is clearer and more explicit.

86. Furthermore, Order 42 Rule 24 of the Civil Procedure Rules stipulates for remand of cases as follows:“Remand of cases [Order 42, rule 24]Where the court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point, and the decree is reversed on appeal, the court to which the appeal is preferred may, if it deems fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence, if any, recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.”

87. Under Order 42 Rule 25, this Court may, on appeal, where evidence on record is sufficient determine case finally. The section stipulates that:“Where the evidence upon the record is sufficient to enable the court to which the appeal is preferred to pronounce judgment, the court to which the appeal is preferred may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the court to which the appeal is preferred proceeds.

88. In the instant case, the trial magistrate already heard all evidence before her and what she failed to do was to make a finding regarding the exempted items and where sold, to determine their value and make appropriate orders bearing in mind the fact that the appellant did finally settle the rent arrears albeit belatedly.

89. The last issue is whether the trial court failed to make a finding on the distressed property which were not listed for sale yet they were not returned to the appellant and therefore what orders should this court make.

90. As earlier stated, the appellant claimed and submitted that some items proclaimed were never sold and neither were they returned to him yet the trial court made no finding on the same.

91. I have again perused the trial court record and I find that indeed, after proclaiming and advertising the items for sale, vide letter dated 9/11/2019, the following items are not reported to have been sold-- Four burner electric cooker type, one electric kettle, one flask and one gas cylinder 13kg.

92. That being the case, I find that the appellant had made out a case for accountability of the 2nd respondent auctioneer for the proclaimed items listed and advertised for sale yet they were not sold and therefore it was upon the trial court to make a pronouncement on the same, whether they should be returned to the appellant or their value determined and an order for compensation made, which she did not. I therefore remit this issue back to the trial court for appropriate orders on the same.

93. On the whole, I find that the appellant’s case was not hopeless. It ought not to have been dismissed as a whole. I allow this appeal to the extent stated herein above and remit the matter back to the trial magistrate who is still in the court station to make findings on the two issues that I have identified above before reaching a conclusion as to whether the appellant had proved his case on a balance of probability and to what extent.

94. I therefore set aside the judgment of 10th January, 2024 dismissing the appellant’s suit with costs and substitute it with an order directing the trial magistrate to pronounce herself on the two issues identified above.

95. I order that each party bear their own costs of the appeal noting that the errors of omission complained of were occasioned by the trial court and therefore the respondents should not be penalised for that.

96. Finally, and this is counsel directed at Auctioneers and landlords that beds and mattresses are part of beddings and therefore whenever they carry out distress for rent arrears, they should not proclaim or take possession of these items, among other clearly spelt out exempted items such as the tenants’ or their family members’ wearing apparel and or tools of trade.

97. This file is closed.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 11TH DAY OF SEPTEMBER, 2024R.E. ABURILIJUDGE