Guandai Karugu v Lihasi Bidali [2003] KECA 151 (KLR)
The bottom line
#Landlords who seize tenant goods without notice break the law, but Kenya's Court of Appeal still deducts proven rent arrears from the tenant's compensation.
What this practically means
#Executive summary
#Key legal issues
#Lawfulness of distress for rent levied without notice
The removal of the respondent's goods by auctioneers on 23rd February 1992 without notice, followed by advertisement of sale on 4th March and sale on 5th March 1992, did not comply with the Distress For Rent Act and was wrong in law.
Section 4(1) of the Distress For Rent Act (Cap. 293) requires that after distress the tenant be given notice stating the cause of the distress and fourteen days within which to pay the rent with costs of the distress or replevy the goods before any sale. The auctioneers raided the premises without giving any notice. The Court therefore found the learned Judge was entitled to hold that the whole process of levying distress was unlawful.
Whether the appellant's counterclaim for rent arrears of Shs.143,000/= was proved
Having found as a fact that the respondent owed Shs.143,000/= in rent arrears, the appellant necessarily succeeded on his counterclaim, which the learned Judge overlooked.
The superior court had made a factual finding that the respondent was in arrears of rent in the sum of Shs.143,000/=, a finding not disturbed on appeal. That finding meant the landlord had proved his counterclaim. By failing to give effect to it, the Judge denied the appellant what was rightfully his. The Court therefore allowed the second ground of appeal and netted the Shs.143,000/= off the Shs.300,000/= award.
Assessment of the value of goods carried away under unlawful distress
The trial Judge, doing the best he could in the circumstances after hearing the respondent's evidence on the items carried away, was entitled to assess the value of the goods at Shs.300,000/=, and an appellate court should not interfere with that assessment.
The respondent had listed the items carried away and given estimate values in evidence. The learned Judge considered that evidence and, doing the best he could in the circumstances, arrived at Shs.300,000/=. The Court found no misdirection in the valuation and saw no valid reason to interfere, so the first ground of appeal failed.
Legal principles established
#- Where a landlord lawfully proceeds to distress for rent, a notice of distress stating the cause of the distress must be left on the premises, and the tenant must be given the statutory fourteen days to pay the rent with costs or replevy the goods before sale; distress levied without notice is unlawful.
- Where a trial court finds rent arrears proved and unrebutted, it must give effect to a landlord's counterclaim in that amount even where the distress that prompted the suit was itself unlawful; a netting-off of proved arrears against damages for unlawful distress is required.
Court orders
#- 1.Appeal allowed on the second ground only
- 2.Judgment of the superior court set aside and substituted with judgment in favour of the respondent in the sum of Shs.157,000/= instead of Shs.300,000/=
- 3.Appellant to have costs of this appeal and half the costs in the superior court
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 1048 of 1993
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court (statutory appellate jurisdiction; no specific constitutional provision cited)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Guandai Karugu v Lihasi Bidali [2003] KECA 151 (KLR)", Case Analysis (2003). Civil Appeal No. 29 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2003/151/eng@2003-12-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.