https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11078

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CIVIL DIVISION** **CIVIL CASE NO. 437 OF 2015** **SAROJ K. SHAH………………..……..…………...…...........PLAINTIFF** **-VERSUS-** **NARAN MANI PATEL ……………..…..………..…...…1ST DEFENDANT** **KANTILAL NARAN MANJI ….….……………..…….…2ND DEFENDANT** **HEBROS TRADERS…………………………………....3RD DEFENDANT** **JUDGMENT** **Pleadings** 1. By way of a plaint an **amended plaint dated 31/08/2016**, **Saroj K. Shah** *(hereafter the Plaintiff)* sued **Naran Mani Patel, Kantilal Naran Patel** and **Hebros Traders** *(hereafter the 1st, 2nd & 3rd Defendant/Defendants)* seeking judgment jointly and severally against the Defendants by way of-; ***i.*** *An order of injunction be issued directed to the Defendants by themselves, servants and or agents and any other person claiming under them from interfering with peaceful occupation and residency of the Plaintiff in the suit premises.* ***i(a)*** *General and aggravated damages for breach of the tenancy agreement.* 1. *That an order is issued directed to the Defendants by themselves, servants and or agents and any other person claiming under them to return the seized property of the Plaintiff.* ***ii(a)*** *General and aggravated damages for breach of tenancy agreement.* 1. *Special damages to be ascertained.* 2. *Legal costs incurred by the Plaintiff in CMCC 1534 of 2011.* 3. *Interest on (i)(a), ii(a), (iii) & (iv) above at Court rate from 16/05/2011 until payment in full.* 4. *Return and compensation of the Plaintiff’s property confiscated by the Defendants,* 5. *Cost of the suit.* 6. The Plaintiff averred that he was a tenant in **Flat No.5** on **Mogotio Road Westlands LR No. 209/7559** *(hereafter suit premises)* whereas the 1st Defendant is the owner of the suit premises, the 2nd Defendant the son and agent of the 1st Defendant while the 3rd Defendant is an agent and or servant of both the 1st and 2nd Defendants. 7. It was further averred that the Plaintiff had a tenancy with the 1st and 2nd Defendant for the period of 05/02/2011 to 05/03/2012, to wit, her advocate on 16/02/2011 forwarded monies for rent to the 1st and 2nd Defendants for the period of February - August 2011 in arrears. 8. That the Defendants broke into her residence on 16/05/2011 and took away household items with the intention to auction the same ostensibly for rent due and owing. The Plaintiff went on to aver that in undertaking the aforecaptioned, the Defendants locked the suit premises and as a consequence she had to incur huge bills in seeking alternative shelter. 1. It was averred that the Plaintiff subsequently incurred legal costs in filing Nairobi CMCC No. 1534 of 2011 as a consequence of the Defendants, their employees, servants and or agents breach of the tenancy agreement. That having broken into the suit premise and carted away the Plaintiff’s goods and or sold the same the Defendants have never returned the goods, for which she now claims damages. 2. The **1st & 2nd** **Defendants** filed a statement of **defence and counterclaim dated 31/03/2017** denying the key averments in the plaint.By way of the counterclaim, the 1st & 2nd Defendant aver that the Plaintiff was their tenant pursuant to a tenancy agreement dated 01/03/2010 and that the latter breached the said agreement by defaulting in paying rent and disregarding a termination notice. 3. It was further averred that as a consequence of the Plaintiff’s conduct, the 1st & 2nd Defendants incurred legal fees, auctioneer hiring fees and loss on rent or enjoyment of quiet possession of the premises. Therefore, the 1st & 2nd Defendants seek judgment as against the Plaintiff as follows-; 4. *Kshs. 940,000/-* 5. *Interest on the above from 2011 until payment in full.* 6. *Costs of the counterclaim.* 7. Having set out the above, the suit proceeded to full hearing during which only the Plaintiff, and the 1st and 2nd Defendants called evidence in support of the averments in their respective pleadings. **Plaintiff’s case and Evidence** 1. **Mayur Shah** testified as **PW1**. He began by identifying himself as a businessman and younger brother to the Plaintiff, that she issued in his favour a Power of Attorney, which was duly registered. He proceeded to adopt his witness statement dated 15/02/2018 as his evidence in chief meanwhile adduced into evidence the documents appearing in Plaintiff’s bundle of documents as **Pexh.1.** 2. The gist of his evidence was that the Plaintiff was a tenant under lease in the suit premises wherein alongside the Plaintiff they resided with two (2) other siblings. He testified that in 2010 the Plaintiff gave notice of her intention to renew her lease in respect of the suit premises, to run up to 2012. 3. He stated that the Plaintiff having issued the notice, they departed for treatment in India whereafter the landlord filed a suit before the Business Premises Rent Tribunal (BPRT) claiming that the Plaintiff had rent arrears and thereafter managed to obtain an order to levy distress, and however not to evict. 4. He went on to state that despite the order from the BPRT, they were evicted from the suit premises on 15/05/2011 with their house goods carted away. That an assessor’s report was prepared in respect of the carted goods which captures among the goods carted away as jewelry, money, a car and many other items estimated at more than Kshs. 595,000/-. 5. He concluded by stating that prior to their eviction there was a *status quo* order therefore given the Defendants actions, the Plaintiff claims damages following the unlawful eviction from the suit premises. 6. **On cross-examination**, upon being referred to the tenancy agreement, he confirmed that it was for one (1) year however subject to renewal with a 5% increment on rent. He went on to assert that the Plaintiff was never served with any termination notice. And categorical that the Defendants letter dated 31/12/2010 was not served upon the Plaintiff given that at the time, the Plaintiff was receiving treatment in India as from 15/12/2010 to 31/12/2010. 7. That the Plaintiff having intimated interest on renewal of the lease there was an understanding that it would be renewed because the Plaintiff drew out cheques in favour of the Defendants, of which, they later accepted. 8. While being referred to the Plaintiff’s medical documents and records, he stated that the Plaintiff developed her health condition in 2013 - 2014 after evictions on 16/05/2011 and later on 08/12/2011. He confirmed to not having any medical reports linking the eviction to the Plaintiff’s condition. 9. He further confirmed that the Plaintiff was admitted in hospital in 2016, which was five (5) years after she had been evicted and that he did not adduce any medical expense receipts for the Plaintiff, immediately after the eviction. That subsequent to the Plaintiff’s eviction, Nairobi CMCC No. 1534 of 2011 was filed however the same was dismissed with no appeal being preferred as against the said order of dismissal. 10. While being referred to the 1st and 2nd Defendant’s list of documents he confirmed there being an order for levying of distress issued on 07/12/2011 in Nairobi CMCC Misc. App. No. 827 of 2011. Despite being aware of the said order, he did not remove any attached items because the said attachment was illegal. 11. It was his testimony that he evinced a certificate of production in respect of the photographs attached in the Plaintiff’s bundle of documents and equally evinced receipts for the breakdown of the goods attached during the levying of distress for rent. 12. In conclusion, while being referred to the ruling rendered on 02/07/2011 in Nairobi HC. Civil ELC No. 309 of 2011, he confirmed that the Court noted therein that as at delivery of the said ruling, the Plaintiff had since been evicted from the suit premises. 13. **In re-examination,** while being referred to the latter ruling, he clarified that the Court had in the said ruling earlier noted that the orders from the BPRT were irregular for want of jurisdiction whereas the Plaintiff was evicted in process of levying of distress. Therefore, it was his evidence that the Defendants never had any order to evict the Plaintiff from the suit premises. 14. He stated that in the course of eviction the Plaintiff lost some property whereinafter they reported the matter to Parklands Police Station on 16/05/2011 and at Central Police Station on 08/12/2011 asserting that everything in the house was carted away save for the clothes they were wearing on the said dates therefore the Plaintiff’s eviction was unlawful. 15. The witness further testified that he wrote to the landlord on 16/02/2011 seeking to extend the lease, and attached copies of cheques, which eventually were cleared, that he never received a letter from the landlord demanding arrears, and therefore it can be reasonably concluded that the Plaintiff was not in any rent arrears. He maintained having not received the Defendants notice dated 31/12/2010 hence the reason they continued to pay their rent. 16. In summation, he iterated that the break in order having been obtained from the BPRT, the Plaintiff’s eviction was unlawful given that the suit premises was residential and not a business or commercial in nature. 17. **Paresh Kumar Shah**, testified as **PW2**. He began by identifying himself as the younger brother to both the Plaintiff and **PW1** meanwhile proceeded to adopt his witness statement dated 15/02/2018 as his evidence in chief. Thegist of his evidence was that on16/05/2011 and 08/12/2011 they were evicted from the suit premises with their house items carted away on both dates. He added that after the first eviction and carting away on 16/05/2011, they bought new house items and leased others, all of which were also carted away on 08/12/2011. It was his testimony that the aggregate of the Defendants actions constituted an illegal break-in and that despite settling the rent due for March 2011 – February 2012, the Plaintiff’s carted items have never been returned. 18. **On cross examination**, he iterated that the break in order was an illegal directive from the BPRT however confirmed that they did not appeal against the said. He stated that the cheque for Kshs. 252,000/- drawn in favour of the Defendants, was for the rent period between September 2011 – February 2012 therefore the Plaintiff was not in any rent arrears. 19. **In re-examination,** he clarified that the landlord refused to accept any of their cheque(s) and as at eviction 02/12/2011, the latter was in possession of a cheque in the sum of Kshs.252,000/- which was returned on the same day by his advocate. 20. **Dr Wilson Kivindu**, testified as **PW3**. He began by identifying himself as Registered Loss Assessor & Adjuster meanwhile proceeded to adopt his witness statement dated 27/11/2019 as his evidence in chief. Thegist of his evidence was that he received instruction from **PW1** on 19/11/2019 to audit, review and adjust the values of the lost goods, items & valuables resulting from the Plaintiff’s unlawful eviction from the suit premises. 21. That his report was based on verification and quantification of goods, items & valuables captured by Teja Singh Kundhi on 06/12/2011 and the valuation of losses as quantified by **PW2.** He went on to state that having had access to the source documents, where available, he was satisfied upon verification as to the accuracy of the losses recorded of which he assessed in his report to be in the sum of **Kshs. 66,698,781.50/-.** 22. **On cross examination**, it was his evidence that his report was premised on information provided by **PW1** & **PW2** of which he verified. That his valuation of the goods, items & valuables carted away in May & December 2011 was pegged on their market value in 2019. Despite the concerning events having occurred on 16/05/2011 and 08/12/2011, the **PW1** approached him in 2019. 23. He went on to state that the evidence presented to him were invoices, receipts and delivery notes demonstrating that the Plaintiff had an insurable interest on goods, items & valuables carted away. Nevertheless, he confirmed that in his assessment and valuation, he was not presented with photographs of the aforestated, to wit, his report was based on good faith. 24. He further stated that in preparation of his report, he relied on a valuation that had earlier been done by **PW2**, which he confirmed was reliable. That despite arriving at an estimated value of loss in the sum of Kshs. 66,698,781.50/-, he stated that a valuation conducted by **PW2** two (2) years earlier, arrived at a figure of Kshs. 28,380,852/-. In conclusion it was his evidence that despite the aforestated he independently verified the value of goods, items & valuables carted away. 25. **In re-examination,** he iterated that he is a qualified loss adjuster and assessor therefore his report was reliable. 26. **Teja Singh Kundhi**, testified as **PW4**. He began by identifying himself as a Registered – Practicing Valuer. He proceeded to adopt his witness statement dated 16/02/2018 as his evidence in chief. Thegist of his evidence was that he received instruction from the Plaintiff on 05/12/2011 concerning the verification and quantification of house items in the suit premises. That he visited the suit premises on 06/12/2011 and conducted a quantification of the house items as availed by the Plaintiff and therefore wishes to rely on the said report as part of his evidence. 27. **On cross-examination**, he confirmed being present at the suit premises on 05/12/2011 and subsequently visited the premises the following day. That he took an inventory and valued the house items that were carted away. It was his evidence that he took photographs of the items however, with respect to other items he did not visually inspect, such as watches, he relied on invoices. 28. He testified that the invoices in respect of the watches and jewelry originated from the same shop whereas the valuation on 06/12/2011 was done by **PW2**. He confirmed having not been summoned before the Auctioneer’s Board however he was a witness in the matters before the High Court and BPRT. 29. **In re-examination,** he maintained there were invoices in respect of the earrings and bracelets, though even dates, had different times stamps. **1st and 2nd Defendants case and Evidence** 1. On behalf of the 1st and 2nd Defendants, **Kantila Nanan Maji Patel**, testified as **DW1.** He proceeded to adopt his witness statement dated 29/07/2025 as his evidence in chief meanwhile adduced into evidence the documents appearing in 1st and 2nd Defendant’s bundle of documents dated 30/03/2017 as **Dexh.1**. 2. The kernel of his evidence was the 1st Defendant issued a notice of non-renewal to the Plaintiff on 31/12/2010, that despite the Plaintiff having sought for an extension of the notice period, the latter was advised to put his offer in writing. That the Plaintiff having failed to comply with the aforestated, the 1st Defendant reiterated vide a letter dated 13/01/2011, that the notice of non-renewal stood, and that the Plaintiff was required to vacate the suit premises on or before 28/02/2011. 3. He stated that the lease was terminated as at 31/12/2010 meanwhile due to rent arrears and continued occupation of the suit premises beyond 28/02/2011, the 1st Defendant instituted proceedings before the BPRT wherein the latter issued orders towards levying of distress in respect of two (2) months rent arrears. 4. It was his evidence that the 3rd Defendant on instruction of the 1st and 2nd Defendant effected the aforestated notice whereas despite the Plaintiff having obtained interim stay orders in Nairobi CMCC No. 1534 of 2011, the same were eventually discharged on 24/06/2011. 5. He went on to state that the Plaintiff thereafter moved the High Court to secure interim orders in **Nairobi HC. Civil ELC No. 309 of 2011** which was later lifted on 01/12/2011. However, the High Court stayed proceedings before it, pending hearing and determination of Nairobi CMCC No. 1534 of 2011. He thus stated that as a consequence of the aforestated there were no interim orders in place restraining the Defendants from taking possession of the suit property, upon which the 1st Defendant, through counsel, instructed the 3rd Defendant, as a licensed auctioneer, to proceed and levy distress. 6. He concluded that after taking possession of the suit premises the Plaintiff unsuccessfully instituted contempt proceedings in Nairobi HC. Civil ELC No. 309 of 2011 and that the 1st and 2nd Defendants returned the Plaintiff’s cheque dated 02/12/2011. He thus urged the Court to dismiss the Plaintiff’s suit. 7. **On cross-examination**, he confirmed the suit premises was residential. While being referred to the BPRT order, he likewise acceded that the order was specific to breaking in and levying distress, and not to evict the Plaintiff, however despite the aforestated, the Plaintiff was evicted from the suit premises. He equally confirmed the Court in Nairobi HC. Civil ELC No. 309 of 2011, in its ruling found that the eviction of the Plaintiff was illegal, however qualified that the 1st and 2nd Defendants were not present during the evictions nevertheless gave instructions towards the eviction. He concluded by stating that the eviction was done by the 3rd Defendant, but that the 1st and 2nd Defendants were unaware of any loss visited on the Plaintiff. 8. At the close of the trial, directions were issued on filing of written submissions. The parties duly complied and were accorded an opportunity to highlight the same. 9. However, before I proceed to set out the respective submissions, it necessitates that I point out that the **3rd Defendant** did not participate in the instant proceedings by either filing pleadings or examination of witnesses. Additionally, the Plaintiff did not take any directions as to the latter’s status or position, as may concern, the Plaintiff’s case as against the said **3rd Defendant**. Therefore, the aforestated was the obtaining position of the parties, as at filing and subsequent highlighting of their respective submissions. **Plaintiff’s Submissions** 1. Counsel for the Plaintiff summarily addressed the Court on six (6) cogent issues. At the outset, counsel summarily argued that the issue of liability had already been conclusively determined by the High Court and the Court of Appeal therefore the present suit principally concerns the appropriate reliefs flowing from the Defendants' unlawful conduct. 2. It was submitted that the tenancy agreement dated 01/03/2010 is undisputed, subsisted whereas rent was paid or duly tendered, and that the Defendants themselves refused to accept rent, thereby creating the very default upon which they subsequently relied on to levy distress and evict the Plaintiff. 3. It was therefore contended that the Defendants cannot benefit from their own wrongdoing or sustain their counterclaim on rent arrears allegedly arising from their refusal to accept rent. 4. Counsel further posited that the legality of the distress proceedings and the resultant eviction is no longer open to dispute, as both the High Court and the Court of Appeal held that the BPRT lacked jurisdiction because the suit premises were residential. While relying on the of-cited decision in **Owners of the Motor Vessel "Lillian S"**, the counsel maintained that jurisdiction is foundational, and proceedings undertaken without jurisdiction are a nullity incapable of conferring lawful authority. Consequently, the distress for rent, entry into the premises and forcible eviction were void *ab initio*, and the Defendants cannot retrospectively validate those acts by alleging expiry of the tenancy, rent arrears or entitlement to possession. 5. That even if the tenancy had come to an end, the Defendants remained under a legal obligation to recover possession through lawful judicial process rather than self-help measures. In support of the above proposition, reliance was placed on **Gusii Mwalimu Investment Co. Ltd & 2 Others v Muahimu Hotel Kisii Ltd [1996] KECA 69 (KLR)**. 6. Counsel went on to submit that the Defendants unlawfully entered the premises, removed and retained the Plaintiff's goods, thereby committing trespass, conversion and breach of the covenant for quiet enjoyment. Reliance was placed upon **Clerk & Lindsell on Torts**, **Kenya Power & Lighting Company Ltd v Habib [2018] KEHC 5027 (KLR), Obongo & Another v. Municipal Council of Kisumu [1971] EA 91**, and the English decision in **Southwark LBC v Mills [2001] 1 AC 1** for the propositions that trespass is actionable without proof of actual damage, unlawful interference with possession attracts damages, and forcible interference with a tenant's quiet enjoyment constitutes a fundamental breach of tenancy rights. 7. Counsel maintained that these findings, coupled with the superior Courts' determination that the BPRT proceedings were a nullity and that the Plaintiff was evicted pursuant thereto, conclusively establish liability, leaving for determination, assessment of damages . 8. **On quantum**, counsel posited that the Plaintiff is entitled to general, aggravated and special damages. Reliance was placed upon the decision in **Kenya Tourist Development Corporation v Sundowner Lodge Ltd** **[2018] KECA 312 (KLR)** for the restorative purpose of compensatory damages, **Gitobu Imanyara & 2 Others v Attorney General [2013] KEHC** **6361 (KLR)** for the award of aggravated damages where conduct is oppressive and high-handed, and **Hahn v Singh [1985] KECA 129 (KLR)** for the settled principle that special damages must be specifically pleaded and strictly proved. 9. It was further contended that the pleaded claim for Kshs. 66,698,781.50/- was fully supported by valuation reports, receipts, invoices and other documentary evidence, while comparable authorities, including **Gusii Mwalimu Investment Co. Ltd** (supra)and **Kenya Power & Lighting Co. Ltd** (supra) demonstrate that substantial awards are appropriate in cases involving unlawful eviction, trespass and interference with proprietary rights. The Court was urged to allow the suit as prayed. **1st and 2nd Defendants Submissions** 1. Counsel for the 1st and 2nd Defendant began his submissions by setting out in brief the events leading hereto meanwhile condensed his submission into five (5) salient issues. 2. Addressing the Court on whether the tenancy agreement between the parties was extended up to 05/03/2012, counsel stated that it is undisputed that the parties executed a written tenancy agreement dated 01/03/2010 for a fixed term expiring on 28/02/2011, that the tenancy was renewed until 05/03/2012 is legally and factually untenable given that Courts cannot rewrite contracts and that parties remain bound by the contractual terms unless vitiating factors such as fraud, coercion or undue influence are pleaded and proved. 3. Reliance was placed on the decisions in **National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & another [2001] KECA 362 (KLR)** and **Langat v Co-operative Bank of Kenya Ltd [2017] KECA 152 (KLR)** 4. Counsel went on to submit that **Clause 3(e)** of the tenancy agreement expressly entitled either party to terminate the tenancy by giving two calendar months' written notice and that the clause commenced with the phrase *"Notwithstanding anything to the contrary herein contained or implied,"* thereby giving it overriding effect over every other provision of the agreement, including the renewal clause. 5. That the 1st Defendant validly exercised this contractual right by issuing the written notice dated 31/12/2010 informing the Plaintiff that the tenancy would not be renewed upon expiry on 28/02/2011, followed by a further demand dated 13/01/2011 requiring vacant possession. Counsel argued that the notices fully complied with Clause 3(e), thereby bringing the tenancy to an end upon expiry of the fixed term. 6. Counsel rejects the Plaintiff's contention that the tenancy renewed automatically upon payment of rent with the stipulated five (5) per cent increment, on grounds -; that by virtue of **Clause 3(e),** its overriding wording, superseded the renewal provision; and that the renewal never occurred because the landlord expressly rejected every purported rent payment tendered after termination. Therefore, the Court was asked to find that the conditions precedent to renewal were never fulfilled, the notice of termination remained effective, the tendered rent was unequivocally rejected, to wit, the tenancy expired on 28/02/2011 without renewal. 7. Submitting on whether there was breach of the tenancy agreement, counsel argued that the Plaintiff's allegation of breach is predicated upon alleged interference with her right to quiet possession under the tenancy agreement. That this allegation cannot stand because, as demonstrated under the first issue, the tenancy agreement lawfully expired on 28/02/2011 pursuant to the valid notice of termination issued under Clause 3(e). 8. Consequently, the Plaintiff enjoyed quiet possession throughout the subsistence of the contractual tenancy and that the 1st Defendant only proceeded to levy distress for rent and recover possession after the agreement had already expired. Therefore, no interference occurred during the currency of the tenancy capable of constituting a contractual breach, to wit, the Court was urged to find that there was no breach of the tenancy agreement by the 1st Defendant. 9. Concerning whether the 1st and 2nd Defendants seized the property claimed by the Plaintiff in its purported reports, counsel posited that the Plaintiff failed to discharge the statutory burden of proving that the specific goods allegedly seized during the levy of distress were actually present in the suit premises and were in fact seized by or on the instructions of the Defendants. 10. While relying upon **Sections 107 and 109** of the **Evidence Act**, counsel argued that no credible evidence demonstrates that any property beyond the goods contained in the auctioneer's proclamation was ever taken. That the Plaintiff's case suffers from a fundamental evidential deficiency because neither the original plaint filed in 2011 nor the amended plaint of 2016 particularized the alleged seized property, and the extensive inventories, valuation reports and schedules of household goods only emerged six (6) to seven (7) years later through reports prepared by **PW2, PW3** and **PW4**. 11. Further, the Plaintiff never produced any catalogue of the alleged goods before the High Court, the Magistrate's Court or the Auctioneers Licensing Board, notwithstanding the numerous proceedings instituted since 2011, thereby rendering the subsequent reports unreliable and lacking probative value**.** 12. Counsel went on to submit that the Plaintiff's photographic and expert evidence is inadmissible as the photographs relied upon consist of unauthenticated electronic evidence, lacked timestamps, did not identify the photographer or processor therefore was not **Section 106B** of the **Evidence Act** as observed in the decision in **Samwel Kazungu Kambi v Nelly Ilongo, the Returning Officer, Kilifi County & 2 others [2017] KEHC 2256 (KLR)**. 13. It was further submitted that the reports of **PW2, PW3 & PW4** neither constituted independent proof of the alleged goods nor satisfied the requirements of expert evidence, as they were founded upon unverified schedules, unauthenticated photographs and assumptions supplied by the Plaintiff. Counsel urged the Court to find that the Plaintiff had failed to prove either the existence of the alleged household goods or that they were seized by the Defendants. The decisions in **Kagina v Kagina & 2 others [2021] KECA 242 (KLR)**, **Gitau v Gitau & Another [2025] KECA 1988 (KLR)** and **Mbogoh (Suing as the Administrator and Legal Representative of the Estate of the Late Benson C. Mbogoh) & 2 others v Juma & 65 others [2026] KECA 294 (KLR)** were cited in the above regard. 14. Submitting on whether the Plaintiff is entitled to the reliefs claimed, counsel contended that the prayer for an injunction is untenable because the Plaintiff's rights arose solely under a tenancy agreement which validly expired on 28/02/2011 following lawful termination whereas even on any alleged extension of the tenancy, the same would have expired by effluxion of time. The decision in **Kenya Power & Lighting Co. Ltd** (supra) was called to aid. 15. It was equally argued that the Plaintiff failed to prove that any goods beyond those proclaimed by the auctioneer were seized and that the 1st & 2nd Defendants' instructions to levy distress were confined to recovery of rent arrears of Kshs.352,000/-, thereby disentitling the Plaintiff to orders for return of property or, alternatively, limiting any compensation to items objectively proved to have been proclaimed. 16. With respect to the Plaintiff’s claim for general, aggravated and special damages, while placing reliance on the decisions in **National Industrial Credit Bank Ltd v Aquinas Francis Wasike & another [2015] KECA 337 (KLR)**, **Kenya Tourist Development Corporation v Sundowner Lodge Ltd [2018] KECA 312 (KLR)**, **Dharamshi v Karsan [1974] EA 41** and **Securicor (K) Ltd v Benson David Onyango & another [2008] KECA 349 (KLR)** counselsummarily posited that the above reliefs are legally unsustainable given that general damages is ordinarily unavailable for breach of contract whereas awarding the same would amount to impermissible duplication. 17. As regards the claim for special damages, counsel submitted that the Plaintiff merely pleaded "special damages to be ascertained", contrary to the requirement that such damages be specifically pleaded and strictly proved, as observed in the decisions in **Equity Bank Ltd v Gerald Wang'ombe Thuni [2015] KEHC 2474 (KLR)** and **Okulu Gondi v South Nyanza Sugar Company Ltd [2018] KEHC 8361 (KLR)**. 18. Counsel further submitted that the various expert reports cannot cure defective pleadings whereas the reports themselves lacked probative value. That several heads of claim — including hotel expenses, daily living expenses, surveyor's fees, legal costs and medical expenses — were never pleaded, unsupported by independent evidence and in any event the Plaintiff failed to mitigate her loss. The decisions in **Routestone Ltd v Minories Finance Ltd & Another**), **Shah & Another v Shah & Others [2003] 1 EA 290** as cited in **Mbithi & another v Mweti [2022] KEELC 12 (KLR)**, **Daniel Otieno Migore v South Nyanza Sugar Co. Ltd [2018] KEHC 5456 (KLR)**, **African Highland Produce Ltd v John Kisorio [2001] KECA 364 (KLR)**, **Kwanza Estates Ltd v Jomo Kenyatta University of Agriculture and Technology [2024] KESC 74 (KLR)** and **Republic v Rosemary Wairimu Munene Ex Parte Applicant v Thururu Dairy Farmers Cooperative Society Ltd [2014] eKLR** were called to aid in the above regard. 1. Lastly on whether the counter-claim is merited, counsel argued that the 1st and 2nd Defendants having established that the tenancy lawfully terminated on 28/02/2011, the Plaintiff nevertheless remained in occupation of the suit premises until **08/12/2011**, thereby rendering her liable for rent or mesne profits for the period of continued occupation. 2. That, as a consequence of the Plaintiff's continued occupation and the numerous proceedings instituted before the Magistrate's Court, the High Court and the Court of Appeal after expiry of the tenancy, the 1st and 2nd Defendants incurred auctioneer's charges and legal expenses. The Court was therefore urged to dismiss the Plaintiff's suit in its entirety and enter judgment for the 1st and 2nd Defendants as pleaded in the counterclaim together with the ancillary reliefs sought. **Plaintiff’s Rejoinder submissions** 1. Counsel for the Plaintiff submitted that the 1st and 2nd Defendant seek to reopen issues already conclusively determined by superior Courts by attempting to legitimize an eviction founded upon proceedings declared a nullity for want of jurisdiction. That having expressly admitted invoking the jurisdiction of the BPRT, obtaining its orders and relying on those orders to levy distress and evict the Plaintiff, the 1st and 2nd Defendants cannot now justify those actions by reference to the alleged expiry of the tenancy, rent arrears and or mesne profits. 2. Counsel maintained that an illegality cannot be retrospectively cured and that the 1st and 2nd Defendants cannot rely upon their own unlawful conduct either to defeat the Plaintiff's claim or to sustain their counterclaim. That the challenge to its valuation reports, inventories and expert evidence is unsupported by any rebuttal evidence, noting that while the Plaintiff adduced witness testimony, documentary exhibits, receipts, invoices, valuation reports and photographs, the 1st and 2nd Defendants offered no rebuttal evidence. Reliance was placed on decisions in **Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & Another** **[2014] KECA 642 (KLR),** **Nancy Wambui Gatheru v Peter W. Wanjere Ngugi – Nairobi HCCC No. 36 of 1993**, **Ngang'a & Another v Owiti & Another** **(2008) 1 KLR 749** and **Avenue Car Hire & Another v Slipha Wanjiru Muthegu -Civil Appeal No. 302 of 1997.** 3. Additionally, counsel posited that the 1st and 2nd Defendants submissions do not constitute evidence and cannot displace uncontroverted expert testimony, to wit, the Plaintiff’s evidence on liability and quantum remains substantially unrebutted. 4. Counsel also rejected the 1st and 2nd Defendants' contention that special damages were neither pleaded nor strictly proved, maintaining that the amended plaint specifically pleaded the claim and that the same was supported by schedules of loss, valuation reports, receipts, invoices, witness testimony and expert evidence, thereby satisfying the requirements in **Hahn v Singh** (supra). 5. That counsel for the 1st and 2nd Defendant having extensively cross-examined the Plaintiff's witnesses on quantum, suffered no prejudice, while the counterclaim remains unsustainable because it is founded upon the same unlawful process previously declared void and upon an alleged default occasioned by the 1st and 2nd Defendants' own refusal to accept rent duly tendered by the Plaintiff. 6. In concluding, Plaintiff’s counsel submitted that the authorities relied upon by the 1st and 2nd Defendants are distinguishable, as they concern ordinary contractual disputes or merely state general legal principles without addressing unlawful distress, trespass, conversion and eviction founded upon proceedings already declared a nullity. Therefore, this Court ought to reject the 1st and 2nd Defendants' attempt to relitigate settled issues, find that the Plaintiff's evidence on liability and loss remains unrebutted, dismiss the counterclaim, and award the Plaintiff general, aggravated and special damages together with costs and interest, as sought. **Analysis and Determination** 1. The Court has carefully considered the respective parties’ pleadings, the evidence adduced by respective witnesses, and the parties' written submissions wherefrom the Court crystallizes the following as the **Issues for determination-:** 1. *Whether the Plaintiff has made out a case as the Defendants on a balance of probabilities?* 2. *Whether the 1st and 2nd Defendant have made out a case as against the Plaintiff on a balance of probabilities?* 3. *Whether the Plaintiff and 1st & 2nd Defendant are entitled to the relief(s) sought in their rival claims?* 4. *Who ought to bear costs?* ***Whether the Plaintiff has made out a case as the Defendants on a balance of probabilities?*** 1. Pertinent to the determination of the issue(s) are the pleadings, which forms the basis of the respective parties’ case before this Court. See-; **Wareham t/a A.F. Wareham & 2 Others v Kenya Post Office Savings Bank [2004] 2 KLR 91**. Akin to pleadings is evidence in support of the pleadings. To the above end, the applicable law as to the burden of proof is found in **Section 107, 108** and **109** of the **Evidence Act**. In **Karugi & Another v Kabiya & 3 Others (1987) KLR 347** the Court of Appeal stated that-: *“[T]he burden on a plaintiff to prove his case remains the same throughout the case even though that burden may become easier to discharge where the matter is not validly defended and that the burden of proof is in no way lessened because the case is heard by way of formal proof….The plaintiff must adduce evidence which, in the absence of rebuttal evidence by the defendant convinces the court that on a balance of probabilities it proves the claim.”* 1. With the above in reserve, it is undisputed that the Plaintiff and the 1st Defendant entered into a tenancy agreement dated 01/03/2010 in respect ofsuit premises, for a term of one (1) year commencing on the latter date and expiring on 28/02/2011. 2. It is also common ground that the tenancy had a renewal clause whereas prior to the expiry of the above tenancy period, the 1st Defendant issued a written notice to the Plaintiff dated 31/12/2010, communicating that the tenancy would not be renewed. 3. Subsequently, a dispute arose between the parties over the Plaintiff's continued occupation of the premises, which dispute, generated proceedings before the BPRT, the Chief Magistrate's Court, the High Court and the Court of Appeal whereas distress for rent was levied upon the Plaintiff's goods therefore giving rise to the present suit. 4. Accordingly, the real controversy before this Court is not whether the tenancy existed or distress was levied but whether the notice of non-renewal was issued or properly communicated; whether the tenancy was lawfully renewed or terminated; whether the 1st & 2nd Defendant and by extension the 3rd Defendant acted in breach of the tenancy agreement or unlawfully levied distress; whether Plaintiff is entitled to special damages, in the event the Court finds there was unlawful distress; and consequently whether the 1st & 2nd Defendants' counterclaim ought to succeed. 5. Quintessential to the Plaintiff’s claim is the tenancy agreement. The role a Court plays while adjudicating over a dispute between contracting parties was since settled in the oft-cited decision of **National Bank of Kenya Ltd** (supra),whereinit was succinctly stated that-; *…..“A court of law cannot re-write a contract between the parties whereas its role is limited to interpretation of the same. This is because contracting parties are free to specify the terms and conditions of their agreement, and that when parties do contract, the court does not have the right or ability to substitute its judgment for that of the parties.”* 1. With the above wisdom in reserve, as to whether the notice of non-renewal was issued or properly communicated and whether the tenancy was lawfully renewed or terminated? Here it is apparent from the tenancy agreement appearing in **Pexh.1**, particularly at **Clause 1A**, the tenancy was to commence on 01/03/2010 to 28/02/2011 with a renewal option available for a further one (1) year subject to increment of 5% in rental income. 2. It is ostensible from the above clause that renewal of the tenancy agreement in respect of the suit premises, from 01/03/2011 to 29/02/2012 was automatic however subject to increment of the rental income by 5%. Importantly, **Clause 3(e)** of the same tenancy agreement provided that, and I quote *ad verbum*-; ***“Notwithstanding anything to the contrary herein contained or implied either party shall be entitled to terminate this agreement on giving either party two months’ notice in writing of his / its intention to do so provided that such notice is given at any date after the first day of the calendar month shall be deemed to take effect from the first day of the calendar month.*** ***Next following expiration of such period of notice this agreement shall cease and determine but without prejudice to any of action accrued to either party during the currency of the agreement.”*** (sic) 1. The above provision notwithstanding the automatic renewal clause, was to the effect that either party was entitled to terminate the agreement by giving two (2) months prior notice in writing. Therefore, it would appear that on the backdrop of the above clause, the 1st Defendant issued a notice of non-renewal dated 31/12/2010, noting that the tenancy was slated for an automatic renewal as at 01/03/2011. 2. I garner from the Plaintiff’s letter dated 01/12/2010, which sought a renewal of the tenancy agreement until 29/02/2012, that the parties had been in communication wherein the Plaintiff had earlier communicated via a letter dated 26/08/2010, certain challenges meanwhile in the letter dated 01/12/2010, informed the 1st & 2nd Defendant that she would be travelling abroad for treatment of her medical condition. 3. During the hearing, **PW1** stated that the 1st Defendant’s letter dated 31/12/2010 was not served upon the Plaintiff given that at the time she was receiving treatment in India as from 15/12/2010 to 31/12/2010. Deliberately, I note that the tenancy agreement did not provide for the manner and mode of service of the notice, or how it was to be effected, though it does seem the parties were in communication notwithstanding the Plaintiff’s proposition. 1. In any event the Plaintiff did not tender any evidence of being out of the country between 15/12/2010 to 31/12/2010. However, given the 1st Defendant’s subsequent letter dated 13/01/2011 it would appear that the Plaintiff was alive to the 1st Defendant’s notice of non-renewal and vacation notice. 2. Nevertheless, it is not lost on the Court that Plaintiff had via her letter dated 01/12/2010 sought an extension of the lease to 29/02/2012, which in my view, was duly communicated to the 1st Defendant. 3. At this juncture it would be pertinent to state that **Clause 4** of the tenancy agreement provided that if and whenever the rent of the suit premises or any part there was is in arrears for (7) days whether formally demanded or not or if the Plaintiff commits a breach of any of the provisions in the tenancy agreement the 1st and 2nd Defendants would be permitted to enter the suit premises, to wit, the tenancy would be determined without prejudice to any remedy on account of any breach by the Plaintiff or any other provision of the tenancy agreement. 4. Here, it was a term of the tenancy agreement that the rent was payable every 1st week of the month in advance, to wit, failure to comply with above by dint of the latter provision allowed the Plaintiff to enter the suit premises, terminate the tenancy agreement while not prejudicing any legal remedies available to the 1st and 2nd Defendant for any breach by the Plaintiff. The latter in my estimation reserved the landlord’s right to levy distress for rent and or eviction, if necessary. 5. It would appear that as at May 2011, the Plaintiff was still in occupation of the suit premises despite the termination notice from the 1st Defendant. Subsequently, the latter moved to realize what was purportedly rent arrears hence their application before the BPRT towards levying distress. 6. As to the propriety of the order emanating from the BPRT, in my view, the same appears to have been suitably addressed by **Waweru, J.** in his ruling rendered in Nairobi HC. Civil ELC No. 309 of 2011, wherein he pithily noted that the orders obtained therein were irregular for want of jurisdiction. From the material evidence before me, the said decision was neither set aside nor appealed whereas to address myself on the same would be to sit on appeal over a decision issued by a concurrent Court. 1. Therefore my deduction is that the notice of non-renewal was issued and properly communicated to the Plaintiff whereas notwithstanding the latter’s express interest to have the lease extended for a further one (1) year, in line with, Clause 1A, it would appear that the 1st & 2nd Defendant were not interested in the said proposition, to wit, it can reasonably be concluded that the tenancy agreement was expressly terminated by the 1st & 2nd Defendant. That being the case, it would be difficult to arrive at a finding that the Defendants were in breach of a tenancy agreement, that was since terminated. 2. As to whether the 1st & 2nd Defendants and by extension the 3rd Defendant unlawfully levied distress? Here, as earlier noted, as at May 2011 it would appear that the Plaintiff was still in occupation of the suit premises. The latter prompted the 1st Defendant to levy distress for rent thereby necessitating proceedings before BPRT. Prior, this Court had noted **Waweru, J**.’s determination in his ruling rendered in Nairobi HC. Civil ELC No. 309 of 2011 that the orders obtained by the 1st Defendant were irregular for want of jurisdiction. In my view, the aforestated, must have been informed by the unstated fact that the dispute between the parties was a Cap 296 question and not a Cap 301 issue. The latter deduction is ostensibly informed by the fact that the suit premises was a residential and not a business premises. 1. That said, from 2nd Defendant’s affidavit in response to the Plaintiff motion dated 18/05/2011 in Nairobi CMCC No. 1534 of 2011, evinced in **Pexh.1**, perceivably, it was the 1st Defendant apprehension that the suit premise was abandoned sometime in March 2011. Further, it was the 2nd Defendant’s deposition that despite counsel for the Plaintiff having forwarded six (6) month advance rent via various cheques, they never banked the same on the credence that the tenancy had been determined as at 01/03/2011 and or that the suit premises had been abandoned. 2. I further note that vide a letter dated 16/02/2011, the Plaintiff’s advocate wrote to the 1st Defendant informing him that the Plaintiff was to depart from the country in early March 2011 to seek medical attention, and went on to state that his client had since settled the January and February rent, meanwhile concomitantly prepared, for forwarding, six (6) cheques in advance rent, that encompassed the 5% increment on rent as provided for in the tenancy agreement. 3. It would appear that the Plaintiff was up to date on her rent for the entirety of the duration of the first year of her tenancy (March 2010 – February 2011) whereas I also garner that the 1st & 2nd Defendants deliberately failed to bank the advanced rent for March – August 2011, for reasons earlier captured that the tenancy had been determined as at 01/03/2011 and or that the suit premises had been abandoned. 4. Despite the aforestated, the Defendants still went ahead to levy distress on the basis of orders obtained from the BPRT, yet had declined to accept cheques in payment of advance rent. While it was not in dispute that the 1st and 2nd Defendant had every intention to terminate the tenancy agreement, the Plaintiff was still in occupation of the suit premises, and by the aforestated, it was obligatory of her to continue paying rent as per the tenancy. It appears the Plaintiff had every intention of fulfilling the said obligation however the 1st and 2nd Defendant had no interest in continuing the tenancy hence declining to accept the forwarded cheques. 1. In any event, for reasons earlier captured, the said orders to levy distress from the BPRT were irregular in themselves and thus could not articulate a legal foundation to levy distress as against the Plaintiff’s household property. Despite the aforestated, the Defendants set into motion process to levy distress, proceedings before Chief Magistrate Court, High Court and Court of Appeal. Further, it would seem that the 1st and 2nd Defendants having levied distress also placed security guards at the premises to deny the plaintiff entry therein. 1. The back and forth as to possession and occupation of the suit premises appears to have persisted onwards to December 2011 wherein during the said period the Plaintiff appears to have regained occupation of the premises whereas despite attempts by the Plaintiff to further pay rent for September – December 2011, the 1st & 2nd Defendant rebuffed the said attempts by returning a cheque in the sum of Kshs. 252,000/- advanced by the Plaintiff’s counsel. 2. Interestingly, the 1st and 2nd Defendants seem to have been prevaricating on the issue of rent, where on one hand, failed to bank advanced rent for March – August 2011 while also declining to accept rent for the period September – December 2011. Nevertheless, they proceeded to claim outstanding rent arrears in the sum of Kshs. 352,000/- by a letter dated 02.12.2011 in **Pexh.1**. Further, via a letter dated 02.12.2011 appearing in **Dexh.1**, 1st and 2nd Defendant’s advocate proceeded to instruct the 3rd Defendant to secure a break in order and levy distress for the aforestated sum. The 3rd Defendant successfully obtained the said order vide Nairobi CMCC Misc. App. No. 827 of 2011. 1. In totality of the aforestated, it is not in doubt that the 1st and 2nd Defendants did not waiver on the fact that they were no longer interested in the Plaintiff’s tenancy whereas the latter was adamant to continue her tenancy and occupation of the suit premises until February of 2012. In light of the 1st and 2nd Defendants resolve, by declining to accept payment in rent as advanced by the Plaintiff and levying repeated distress for rent, - irregularly in May 2011 (for reasons earlier noted) and subsequently in December 2011, further frustrating the Plaintiff’s quiet possession and occupation of the suit premises during the aforestated period, in all, seemed to have been an endeavor towards constructive eviction of the Plaintiff. 1. While by their action, the 1st and 2nd Defendants resolve was unyielding towards termination of the tenancy, they fell short of seeking the appropriate relief directed at eviction of the Plaintiff from the suit premises from a tribunal with requisite jurisdiction. 2. Concerning the requirement for lawful distress and possession by a landlord, the same was settled by **A.B.** **Shah, JA**. in **Gusii Mwalimu Investment Co. Ltd & 2 Others** (supra) wherein he observed that -; *“To obtain possession by carrying out illegal distress is per se wrong. ...if what the landlord did in the case is allowed to happen we will reach a situation where the landlord will simply walk into the demised premises exercising his right of re-entry and obtaining possession extra-judicially. A court of law cannot allow such state of affairs whereby the law of the jungle takes over. It is a trite law that unless a tenant consents or agrees to give possessions, the landlord has to obtain all orders from a competent court or statutory tribunal (as appreciate) to obtain an order for possession”.* 1. At the risk of repetition, though apparent that the 1st and 2nd Defendants were no longer interested in the Plaintiff’s tenancy meanwhile had communicated notice of non-renewal, the Plaintiff was obstinate on continued occupation of the suit premise meanwhile did not consent or agree to give vacant possession. Consequently, in light of the aforestated, it is my reasoned deduction that the totality of the Defendants actions constituted what was unlawful distress and constructive eviction of the Plaintiff from the suit premises. Therefore, it can be reasonably concluded that the Defendants unlawfully levied distress, and evicted the Plaintiff from the suit premises. ***Whether the 1st and 2nd Defendants have made out a case as against the Plaintiff on a balance of probabilities?*** 1. Here, given the Court’s earlier determination that the Defendants unlawfully levied distress as against the Plaintiff, can the Defendants successfully claim damages in rent arrears to the tune of Kshs. 440,000/- and legal service & auctioneers charges in the sum of Kshs. 500,000/-? I believe not. It is obvious that the above claim was a frolic of the Defendants' design when they declined to bank the Plaintiff’s cheques and subsequently returned a rent payment cheque from the Plaintiff. 2. Further the legal expenses were necessitated by the Defendants unlawful actions as against the Plaintiff. Had the Defendants genuinely intended to remove the Plaintiff from the suit premises all they needed to do was to move the Court appropriately for eviction orders as exhorted in **Gusii Mwalimu Investment Co. Ltd & 2 Others** (supra). 3. Indubitably, as rightly argued by the Plaintiff, the Defendants action bring to mind the wisdom of **Kuloba, J** (as he then was) in **Mbui v Maranya [1993]** **KEHC 161 (KLR)** where in his characteristic pithy style, the learned Judge stated**:-** *“No one can improve his condition by his own wrong. The latin of it is Nemo ex suo delicto meliorem suam conditionem facere potest…it is an ancient dictum of our law, that a person alleging his own infamy is not to be heard. People whose wisdom I cannot profane by making modern comparisons to them abbreviated their wisdom in the saying, Allegans suam turpitudinem non est audiendus…. By which they meant that no one shall be heard in a court of justice to allege his own turpitude as a foundation of a right or claim. No one shall be allowed to set up a claim based on his own wrongdoing. A person cannot take advantage of his own wrong and in equity, the maxim holds good that he who comes into equity must come with clean hands… Null prendra advantage de son tort demesne… meaning no man shall profit by the wrong that he does, and Nullus commodum capere potest de injuria sua propria… which means, no one can gain an advantage by his own wrong.”* 1. Applying my mind to the above rendition, it is apparent that the 1st and 2nd Defendant’s counterclaim cannot succeed for the aforestated reasons. It is dismissed. ***Whether the Plaintiff is entitled to the relief(s) sought in their rival claims and who ought to bear costs?*** 1. As to whether the Plaintiff is entitled to special damages? Here it is apparent that the distress levied as against the Plaintiff was unlawful in light of this Court earlier finding. Further, it would seem that in carrying out the said unlawful distress the Defendant perpetuated constructive eviction of the Plaintiff from the suit premises. It is on the premise of the aforestated unlawful distress and constructive eviction that the Plaintiff hinged her claim on special damages, in which she pleaded *“was to be ascertained”*, whereas by implication of the **PW3** and **PW4** evidence was quantified as Kshs. 66,698,781.50/-. 1. It has been settled since **Galaxy Paints Co. Limited v Falcon Guards Limited [2000] 2 EA** **385**, that the issues for determination in a suit generally flow from the pleadings and a trial Court can only pronounce judgement on the issues arising from the pleadings. To the above, it is ostensible that the claim for special damages in the sum of Kshs. 66,698,781.50/- was not pleaded in the plaint. The above figure on special damage, was on occasion by **PW3** and **PW4’s** evidence and not by implication of the Plaintiff’s pleadings. That said, decisions on special damages are replete and this Court does not intend to reinvent the wheel on the same. 1. **Chesoni, J** (as he then was) in the case of **Ouma v Nairobi City Council (1976) KLR 304** held that -: *“Thus, for a plaintiff to succeed on a claim for special damages he must plead it with sufficient particularity and must also prove it by evidence. As to the particularity necessary for pleading and the evidence in proof of special damage the court’s view is as laid down in the English leading case on pleading and proof of damages, Ratcliffe v Evans (1892) 2 QB 524 where Bowen L J said at pages 532, 533;-* *The character of the acts themselves which produce the damage, and the circumstances under which these acts are done, must regulate the degree of certainty and particularity with which the damage done ought to be stated and proved. As much certainty and particularity must be insisted on, both in pleading and proof of damage, as is reasonable, having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry.”* See also-; **David Bagine v Martin** **Bundi [1997] eKLR**and **Hahn -v- Singh [1985] KLR 716.** 1. Reasonable deduction would transcend the fact that as at filing of the suit the Plaintiff must have been alive to the quantifiable loss suffered as a result of the Defendant’s actions. Why the Plaintiff opted to plead, “*special damages to be ascertained*” is beyond me. In any event, and as rightfully contented by the 1st and 2nd Defendants, the claim of Kshs. 66,698,781.50/- was only ascertained in 2019 given **PW3’**s evidence that he received instruction from **PW1** on 19/11/2019 to audit review and adjust the values of the lost goods, items & valuables resulting from the unlawful eviction of the Plaintiff from the suit premises. 1. As at when the **PW1** testified in October 2019, she ought to have been and or was alive to her claim on special damages whereas the attempt to further amend the plaint was derailed by this Court in its ruling rendered on 30/01/2025 wherein it was observed in part that the Plaintiff's intended amendment were brought after inordinate and unexplained delay, sought to introduce new claims and a new cause of action that could prejudice the Defendants, and amounted to an afterthought made in bad faith. 2. Therefore, while it is not lost on the Court that by dint of the Defendants actions, the Plaintiff’s goods were attached in distress for rent and or the Plaintiff lost property by dint of constructive eviction, the claim in the tune of Kshs. 66,698,781.50/- in respect of the aforestated was not properly pleaded and proved to the required standard. The claim for special damages ought to be denied. 3. The Plaintiff’s claim for injunction and return of the Plaintiff seized property is untenable for obvious reasons that the Plaintiff is no longer a tenant within the suit premises whereas given the duration when the cause of action accrued and rendering of this Court’s decision, an order for return would be in vain if not equally untenable, given the seized property was not in storage and in all probability must have been disposed of. 4. The Plaintiff equally sought general and aggravated damages. *Ex facie*, the Plaintiff’s claim presents as one entirely founded on quantifiable damages that this Court has since determined the Plaintiff has failed to specifically plead and prove. However, it is equally not lost on the Court that in the same breath a determination was arrived at that the Defendants actions on levying distress was unlawful. Therefore, it is apparent that on occasion of the Defendant actions, the Plaintiff has established a legal right he is endowed with, has been infringed though failed to prove any quantifiable loss resulting from the said infringement. 1. In such circumstances I reasonably believe that such a claimant is entitled to an award of nominal damages as recognition of the violation of the said right – unlawful distress – given that the Plaintiff had since presented an actionable cause of action, that she only failed to quantify and prove. 2. The Court of Appeal in Jogoo Kimakia Bus Services Ltd v Electrocom International LTD [1992] KECA 48 (KLR) while addressing itself to the issue of nominal damages observed that-; *“In ‘Medina’ and the ‘Mediana’ [1900] AC 113, 116 Earl of Halsbury LC as he then was defined nominal damages:-* *“My Lords, here I wish, with reference to what has been suggested at the bar, to remark upon the difference between damages and nominal damages.* *‘Nominal damages’ is a technical phrase which means that you have negatived anything like real damages, but that you are affirming by your nominal damages that there is an infraction of a legal right which, though it gives you no right to any real damages at all, yet gives you a right to the verdict or judgment because your legal right has been infringed. But the term nominal damages does not mean small damages. The extent to which a person has a right to recover what is called by the compendious phrase damages, but may be also represented as compensation for the use of something that belongs to him, depends upon a variety of circumstances, and it certainly does not in the smallest degree suggest that because they are small they are necessarily nominal damages.”* See Kinakie Co-operative Society Vs Green Hotel (1988) KLR. 1. While it would be remiss if I do not mention that the Court of Appeal in **Kenya Power & Lighting Ltd v Bhogal [2024] KECA 179 (KLR)** succinctly observed *“.........nominal damages, in our view, is not necessarily an arbitrary amount whose figure is to be plucked from the air. ……… we hasten to add that nominal damages are not a percentage of what was claimed but not proved.”* 2. Therefore, applying my mind to the above decisions, the facts of the matter, and comparable decisions of the superior Court where an award of nominal damages has been awarded, I proceed to award the **Plaintiff Kshs. 300,000/- in nominal damages**. 3. As to the claim for aggravated damages the Court of Appeal in **Matumbi v Tanui [2026] KECA 253 (KLR)**stated that “*Aggravated damages are compensatory, not punitive, and are intended to reflect the enhanced harm suffered”*. Having awarded the Plaintiff nominal damages, the Court judiciously declines to award aggravated damages. ***Final Disposition*** 1. In end, the Court having sufficiently addressed itself to the matter before it, the upshot and final orders are that the Plaintiff’s suit partially succeeds in the following terms: 2. **An order of injunction directed to the Defendants by themselves, servants and or agents and any other person claiming under them from interfering with peaceful occupation and residency of the Plaintiff in the suit premises is hereby - DECLINED.** 3. **An order directed to the Defendants by themselves, servants and or agents and any other person claiming under them to return the seized property of the Plaintiff is hereby - DECLINED.** 4. **An award of special damages is hereby - DECLINED.** 5. **An award in terms of legal costs incurred in CMCC 1534 of 2011 is hereby - DECLINED.** 6. **An order for return and compensation of the Plaintiff’s property confiscated by the Defendants is hereby - DECLINED.** 7. **An award for aggravated damages is hereby - DECLINED.** 8. **The Plaintiff is AWARDED NOMINAL DAMAGES OF KSHS. 300,000/- against the Defendants, jointly and severally, which amount will attract interest at court rates from the date of this judgment until payment in full.** 9. **The Plaintiff is equally AWARDED COSTS OF THE SUIT.** **It is so ordered.** **Delivered Dated and Signed at Nairobi this 23rd Day of July 2026.** **……………………….** **JANET MULWA.** **JUDGE**