[2023] KEHC 23807 (KLR)

Wambugu v Njoroge & another (Civil Appeal 520 of 2019) [2023] KEHC 23807 (KLR) (Civ) (18 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23807 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 520 of 2019

JN Njagi, J

October 18, 2023

Between

Paul Muthemba Wambugu

Appellant

and

Kimani Njoroge

1st Respondent

Olive Joy Care Limited

2nd Respondent

(Being an Appeal from the judgment and decree of Hon. G.A Mmasi (Mrs), Senior Principal Magistrate, in Nairobi CM`s Court Civil Case No. 3648 of 2017 delivered on 6/8/2019)

Judgment

1. The Appellant herein filed a suit against the Respondents dated 17th November, 17 seeking for the following reliefs:1)A declaration order to be issued declaring impugned execution for distress for rent, termination of tenancy relationship between the 1st (respondent and the appellant and the subsequent eviction of the plaintiff by the defendant from the demised premises as illegal and unlawful.(2)A mandatory order be issued compelling the respondents to release to the appellant all his movable property illegally impounded and seized from the demised premises in distress for rent.(3)General damages for the unlawful termination of tenancy relationship and eviction of the appellant from the demised premises.(4)General damages for trespass upon the appellant’s goods and property by the respondents.(5)General damages for inconvenience, suffering and harm.(6)Costs of the suit together with interest.

2. The trial court made a judgment that the evidence tendered by the appellant showed that there was no tenancy agreement between the appellant and the 1st respondent hence the issue of distress for rent did not arise. It was the learned Magistrate`s finding that the appellant had failed to show the kind of special relationship that existed between him and the 1st respondent.

3. The learned trial Magistrate was also of the view that the Appellant should opt for a criminal case and sue the 1st respondent for stealing his household goods and other properties. The magistrate consequently found that the appellant had not proved his case on a balance of probabilities and dismissed the claim with orders for each party to bear its own costs.

4. Being aggrieved by the judgment, the Appellant filed a memorandum of appeal dated the 2/9/2019 raising the following grounds of appeal: -1. The learned Magistrate erred both in law and in fact in making findings that the appellant had not proved his case on a balance of probabilities without giving any factual or legal justification.2. The learned Magistrate erred in law in considering the appellant’s pleadings and the evidence tendered in proof thereof on an evidential standard of beyond reasonable doubt when she ought to have applied the standard of a balance of probability.3. The learned Magistrate erred both in law and in fact in failing to consider or at all and ignored the pleadings filed by the appellant and the evidence tendered at the hearing which were all not disputed by the respondents as the case had proceeded undefended and therefore arrived at the wrong conclusion.4. The learned magistrate further erred in law and in fact by misapprehending the facts obtaining in the appellant’s case and the law in reaching a finding that was not based on the evidence tendered by the applicant hereby relying on extraneous facts to arrive at a wrong decision.5. The learned Magistrate erred in law in reaching a finding that the applicant could not sustain a claim for damages as prayed for in his amended plaint and erroneously made a finding in her judgment that the appellant’s reliefs could only be available in criminal proceedings against the respondent.6. The learned Magistrate erred both in law and in fact in failing to award the applicant general damages for unlawful termination of tenancy and illegal eviction, trespass upon the appellant’s goods and general damages for inconveniences, and harm as prayed for in the amended plaint.7. The learned Magistrate erred both in law and in fact in failing to appreciate and consider and, therefore, ignored the appellant’s written submissions as well the cited authorities therefore ignoring the well settled doctrine of stare decisis and, therefore, arrived in a wrong conclusion.

The case for the Appellant 5. It was the Appellant’s case that in or around December 2013, he rented a dwelling house from the 1st Respondent in Kangemi area of Nairobi at a monthly rental charge in the sum of Ksh.7,000/=. That the tenancy relationship agreement was never reduced into writing but it was agreed orally between him and the 1st respondent that the rent would be payable by the 15th of every month to the 1st Respondent`s rent collection agent, the 2nd Respondent. The same was to be paid into a bank account provided by the 2nd Respondent.

6. The Appellant testified that he dutifully obliged to the terms of the tenancy relationship despite constant disruption of his peaceful and quite possession of the premises by the 2nd respondent who allegedly threatened to evict him for late payment of rent while insisting that the rent was payable on the 5th of every month. That he had paid the rent for November 2016 on the 15th of October 2016 through the bank.

7. It was the Appellant’s testimony that on 3rd November 2016 without having been given prior notice, the 2nd respondent acting on the instructions of the 1st defendant unlawfully and without notice broke into his house in his absence, seized and carried away his household goods and personal belongings and evicted him from the premises. He produced an inventory of what was taken from his premises by the respondents.

8. It was the Appellant’s case that the said action by the Respondents amounted to breach of the tenancy agreement, trespass upon his property and unlawful eviction.

9. The Respondents did not enter appearance nor file a defence, consequent to which an interlocutory judgment was entered in favour of the appellant. The matter proceeded to formal proof hearing on 26/3/2019 wherein the Appellant reiterated the evidence as stated above.

10. This court gave directions for the appeal to be canvassed by way of written submissions. The Appellant filed his submissions but the respondents did not file any nor did they attend court despite them being served.

Appellant’s Submissions 11. The Appellant submitted that the jurisdiction of the Appellate court is to reappraise all the evidence and matters of law and re-examine the same in a fresh and exhaustive scrutiny and arrive at its own independent conclusion. In support, he cited section 78 of the Civil Procedure Act which provides for the role of the first appellate court. The Appellant also cited the case of Peter M Kariuki vs Attorney General [2014] eKLR and the case of Oluoch Eric Gogo v Universal Corporation Limited [2015] eKLR.

12. The Appellant submitted that the trial Magistrate made a legal mistake by evaluating the Appellant's case and the presented evidence using a higher standard of proof than what is mandated by the law. As a result, the Appellant contends that the magistrate reached an incorrect decision.

13. The Appellant argued that since the Respondents did not defend the case, the Appellant's evidence remained unchallenged. The appellant faulted the trial Magistrate for concluding that the Appellant had failed to meet the necessary standard of proof in establishing his case. He cited the case of Safarilink Aviation Limited v Trident Aviation Kenya Limited & Another [2015] eKLR where it was held that:“Failure to rebut evidence tendered by one party leaves the court with no option but to draw an inference that the facts as presented are true…”

14. The Appellant also cited the case ofInterchemie E. A. Limited Vs Nakuru “Veterinary Centre Limited [2001] eKLR where Mbaluto ,J. held that:“Where no witness is called on behalf of the defendant, the evidence tendered on behalf of the plaintiff stands uncontroverted. If one is still in doubt as to the legal position reference could be made to the case of Drappery Empire vs. The Attorney General where Rawal, J (as she then was) held that where evidence is not challenged and stands uncontroverted due to the failure by the defendant to adduce evidence, the standard of proof in civil cases (on the balance of probabilities) has been attained by the plaintiff.”

15. It was the appellant’s submission that the trial magistrate fell into error by misapprehending the oral testimony of the appellant when she reached her conclusion in the impugned judgment.

16. The appellant argued that based on the oral testimony and evidence presented during the hearing, he had successfully presented a case for damages due to unlawful termination of tenancy and subsequent eviction by the respondents. Additionally, the appellant contended that the distress for rent claimed by the respondents was illegal as it violated the proper procedure outlined under sections 4 and 16 of the Distress for Rent Act, Chapter 293 of the Laws of Kenya.

17. The appellant cited theHalsbury’s Laws of England 4th Edition at pages 543 to 551 on the common law principles regarding illegal or irregular distress and the remedies therein where the authors state:-“An illegal distress is one which is wrongful at the very outset, that is to say either where there was 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 when no rent is in arrears…a distress made after a valid tender of rent has been made…a distress made in an unlawful manner…”

18. The Appellant also relied on the case of Gusii Mwalimu Invastment Co. Ltd & 2 Others v. Mwalimu Hotel Kisii Ltd. Civil Appeal No. 160 of 1995 (UR) where it was held:-“To obtain possession by levying illegal distress is per se wrong. It is also wrong for a court bailiff... to cart away the tenant’s goods under the guise of such distress.”

19. On the issue of quantum, the Appellant relied on the following cases where general damages were awarded for unlawful distress for rent and unlawful eviction: Ronald Nguru Gathara & another v Cliff Mbala, Milimani HCCA No.669 of 2011, (2015) eKLR where the High Court upheld an award of Ksh.400,000/- in general and punitive damages for unlawful distress for rent.

Nthaka Limited v National Social Security Fund, Msa HCCC No. 332 of 2002, (2006) eKLR where the court awarded Ksh.250,000/- in general damages for unlawful eviction.

Lucy Njeri Ngunjiri & 6 others v Anthony Kimeu & 3 others, Milimani ELC Appeal No.72 of 2016, (2018) eKLR where the court on appeal found that the intention of the Respondents was not to levy distress but to evict the appellants as some of the appellants did not have rent arrears. The court observed that the eviction was carried out in a callous manner. The court awarded each of the appellants Ksh.500,000/-in general damages for unlawful eviction and Ksh.200,000/- being punitive damages.

Analysis and Determination 20. It is settled law that the responsibility of the first appellate court is to reassess the evidence presented in the lower court, considering both legal aspects and factual elements, and subsequently reach its own determinations and conclusions. This approach was exemplified in the case of Peters v. Sunday Post Limited [1958] EA 424, as decided by the Court of Appeal for East Africa. The standard of review in appeal cases can be summarized by three interrelated principles:(1)First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;(2)In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; and(3)It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.

21. From the above decision which is in line with section 78 of the Civil Procedure Act, it is evident that this court is not obligated to adhere strictly to the factual findings of the trial court. Instead, it has the authority to deviate from those findings if it is evident that the trial court either overlooked specific circumstances or probabilities or if the assessment of a witness's demeanor is contradictory to the overall evidence presented. In such cases, this court has the discretion to reach its own conclusions based on a comprehensive evaluation of the evidence.

22. I have carefully perused the record of appeal including the lower court`s pleadings and judgment. I have also considered the grounds of appeal and the parties’ respective rival submissions, taking into account case law and common law principles cited by the Appellant above. The main issues for determination in this appeal are:(1)Whether the Appellant had proved that a tenancy. agreement existed between him and the Respondents.(2)If the above issue is in the positive, whether the distress for rent was unlawful.(3)Whether the appellant was entitled to the reliefs sought.(4)Costs.

Whether tenancy relationship existed between the parties 23. It is trite law that the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the existence of a fact. That is the purport of section 107(1) of the Evidence Act (Chapter 80 of the Laws of Kenya), which provides:107. (1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.

24. The burden of proving whether a tenancy relationship existed between the appellant and the respondents rested with the appellant.

25. The standard of proof in cases is the legal standard to which a party who holds the burden of proof is required to prove his/her case. In civil cases, the standard of proof is on a balance of probabilities. Lord Denning in Miller v Minister of Pensions [1942] 2 ALL ER 372 held as follows on this standard:“The …… (Standard of proof)…..is well settled. It must carry a reasonable degree of probability…… If the evidence is such that the tribunal can say ‘we think it more probable than not’ the burden is discharged, but if the probabilities are equal, it is not.”

26. In discharge of the burden of proof, the appellant stated that he entered into an oral tenancy relationship agreement with the 1st Respondent in 2013 which however was not reduced into writing. The appellant’s testimony under oath was never controverted by the respondents who did not enter appearance nor file a defence.

27. Courts in several authorities have stated that ex parte evidence is not automatic proof of a case. The Appellant is still required to prove their case on the required standard of balance of probabilities. In the case of Kenya Power & Lighting Company Limited vs Nathan Karanja Gachoka & Another [2016] eKLR, the Court stated as follows:“I am of the opinion that uncontroverted evidence must bring out the fault and negligence of a defendant, and that a court should not take it truthful without interrogation for the reason only that it is uncontroverted. A plaintiff must prove its case too upon a balance of probability whether the evidence is unchallenged or not.’’

28. Also in the case of Gichinga Kibutha vs Caroline Nduku (2018) eKLR, the Court held that:-“It is not automatic that instances where the evidence is not controverted the Claimants shall have his way in Court. He must discharge the burden of proof. He must proof his case however much the opponent has not made a presence in the contest.’’

29. Similarly, in Janet Kaphiphe Ouma & Another vs. Marie Stopes International (Kenya) Kisumu HCCC No. 68 of 2007 Ali-Aroni, J. citing the decision in Edward Muriga Through Stanley Muriga v Nathaniel D. SchulterCivil Appeal No. 23 of 1997 held that:“In this matter, apart from filing its statement of defence the defendant did not adduce any evidence in support of assertions made therein. The evidence of the 1st plaintiff and that of the witness remain uncontroverted and the statement in the defence therefore remains mere allegations…Sections 107 and 108 of the Evidence Act are clear that he who asserts or pleads must support the same by way of evidence”.

30. In the instant case the Appellant in paragraph 7A of his amended plaint asserted that the respondents in the course of the interlocutory application which was filed simultaneously with the plaint, admitted to having distressed the appellant’s moveable properties and further undertook to continuously impound the appellant’s movable property until the alleged rent arrears were paid. This assertion by the appellant was not challenged by the respondent.

31. I have perused the ruling to the said interlocutory application dated 18/08/17 and noted that the respondents indeed admitted to distressing the appellant’s moveable property and undertook to release them upon payment of rent arrears of Ksh.21,000/-. The respondents in their replying affidavit to the said application also contended that at the time the rent was being distressed, the applicant was in rent arrears for three months.

32. Considering the pleadings, the evidence presented to the court and the legal authorities cited, I am convinced that the appellant successfully met the burden of proof and demonstrated, on a balance of probabilities, the existence of a tenancy relationship between him and the respondents. In my view, the trial magistrate erred in making a finding that no tenancy agreement existed between the parties. Since the evidence on the tenancy relationship was not controverted by the Respondents the only finding that a court could reach was in favour of the Appellant.

Whether distress for rent was unlawful 33. Having found that there was a tenancy relationship, I now turn to the issue of whether the said distress for rent was unlawful. To determine this issue, it is imperative for me to look at what constitutes illegality of distress for rent. The court of appeal in the case of Cyo Owaya vs. George Hannigton Zephania Aduda T/a Aduda Auctioneers & Another(2007) 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.”

34. Further, Section 4(1) of the Distress for Rent Act Cap.293 Laws of Kenya provides as follows:“Where any goods or chattels are distrained for rent resolved and due upon a grant, demise, lease or contract, and the tenant or owner of the goods or chattels so distrained does not, within fourteen days after distress has been made and notices thereof (stating the cause of the making of the distress) left on the premises charged with the rent distrained for, pay the rent together with the costs of the distress or replevy them, with sufficient security to be given to the licensed auctioneer according to the law the person distraining may lawfully sell on the premises or remove and sell the goods and chattels so distrained for the best price which can be obtained for them, towards satisfaction of the rent for which they are distrained, and of the charges of the distress, removal and sale, handing over the surplus (if any) to the owner.”

35. In the case of Ronald Nguru Gathara & another v Ronald Nguru Gathara [2015] eKLR the court stated as follows:“There is no dispute that there existed landlord-tenant relationship. Such existence gave rise to duties and obligations such as the obligation to pay rent promptly on the part of the tenant and a guarantee to enjoy quiet possession on the part of the landlord. In the event of a breach of the said duties and obligations, court action ought to have been sought. See Gusii Mwalimu Invastment Co. Ltd & 2 Others v. Mwalimu Hotel Kisii Ltd. Civil Appeal No. 160 of 1995 (UR) where it was held:“It is trite law that unless the tenant consents or agrees to give up possession the landlord has to obtain an order of a competent court or statutory tribunal (as appropriate) to obtain an order for possession.”

36. From the evidence on record, the Respondent neither adduced evidence to establish that appellant was in arears nor controverted the Appellant’s evidence that he was not in arrears at the time of levying distress. Further, the Appellant’s evidence that he was not given the requisite notice of the said distress was also not controverted by the Respondent. I therefore find that the distress for rent by the Respondents was unlawful as it did not follow due procedure.I therefore proceed to declare that the act of distress by the Respondents was illegal.

Whether the appellant is entitled to the reliefs sought 37. Having found that the distress for rent was unlawful and amounted to constructive eviction, it is trite that a breach of the law ought to attract reprieve to the violated. In Mattarella Limited v Michael Bell & another [2018] eKLR the court held as follows:“While the defendants were not specifically levying distress for rent, what they sought to do and actually did was to take possession by use of the law of the jungle. That must be, as has always been, frowned upon by the courts. Not only frowned upon but equally remedied by award of damages so that everybody seeking to live within the territory of Kenya, a county whose citizens have chosen to be led by the rule of law, gets to know, if one be otherwise under some illusion, that arbitrariness and or just impunity is not a virtue but a vice. Vice cannot be countenanced but must be curtailed and discouraged. I am saying all the foregoing because I have come to the conclusion that a violation of a right, due process and the law invite a reprieve or remedy to the violated.”

38. I have considered the authorities cited by the Appellant in regard to general damages for unlawful distress and eviction where awards ranging between Ksh.200,000/- and Ksh.500,000/- were made. It is however observed that in the case of Ronald Nguru Gathara & another v Cliff Mbala that was cited by the Appellant, the matter went up to the Court of Appeal where the court found that the case did not involve eviction from the premises. The court held that:“…all that occurred herein was the attachment and restoration shortly thereafter of the respondent’s television set and refrigerator, the award given and confirmed was inordinately high and amounted to a wholly erroneous estimate and must be set aside.”The court reduced the award to Ksh.50,000/- being for intrusion into the respondent`s premises.

39. I have considered the award in the case of Power Pack Hydraulics Limited v Jacinta M. Ndegwa t/a Jarmat Enterprises Limited [2020] eKLR where the court opined that it would have awarded Ksh.200,000/- in general damages for unlawful distress had the case been proved. In the case of Mureu v Karuga [2004] eKLR, Musinga ag. J. (as he then was) awarded Ksh. 200,000/- in general damages for wrongful eviction and conversion. I t is to be noted that the decision in that case was made close to 20 years ago. Similarly, in the case of Nthaka Limited v National Social Security Fund, Msa HCCC No. 332 of 2002, (2006) eKLR that was cited by the Appellant where an award of Ksh.250,000/= was made, the decision was made about 17 years ago. The court has to have regard to inflation. Considering the circumstances of this case, I am of the view that a sum of Ksh.300,000/= would be reasonable compensation in damages for unlawful termination of tenancy relationship, unlawful distress and eviction and for trespass upon the appellant’s goods and property.

40. The upshot is that the appeal is allowed and the judgment of the lower court dismissing the Appellant`s claim is set aside. I thereby enter judgment for the Appellant against the Respondents, jointly and severally, and make the following orders:(1)a declaration order be and is hereby issued declaring the impugned execution of distress for rent, termination of tenancy relationship between the 1st Respondent and the Appellant and subsequent eviction of the Appellant by the Respondents from the demised premises as illegal and unlawful.(2)A mandatory order be and is hereby issued compelling the Respondents to release to the Appellant all his movable property impounded and seized from the demised premises as distress for rent.(3)The court awards the Appellant Ksh.300,000/- in general damages for unlawful termination of tenancy relationship, unlawful distress and eviction and for trespass upon the appellant’s goods and property.(4)The Appellant to have the costs of the suit in the appeal and at the lower court.

Orders accordingly.

DELIVERED, DATED AND SIGNED AND AT NAIROBI THIS 18TH DAY OF OCTOBER 2023J. N. NJAGIJUDGEIn the presence of:Martin Maina for AppellantNo appearance for RespondentsCourt Assistant -Amina30 days Right of Appeal