Ronald Nguru Gathara & 2 others v Cliff Mbala [2017] KECA 490 (KLR)
The bottom line
#Kenya's Court of Appeal cut unlawful distress damages from Kshs 400,000 to 50,000 and confirmed auctioneers no longer need a court certificate before levying distress.
What this practically means
#Executive summary
#Key legal issues
#Unlawfulness of the distress for absence of rent arrears
Two concurrent factual findings that no rent was owing at the date of the distress bound the second appellate court; the distress was therefore unlawful.
The respondent had issued and the appellants accepted a notice terminating the tenancy, so no rent was owing when the television and refrigerator were attached on 11 July 2006. Being concurrent findings of fact in the courts below, the Court of Appeal had no basis for departing from them. The attachment of goods without owing rent rendered the distress unlawful regardless of the certificate question.
Whether a High Court certificate under Section 18 of the Distress for Rent Act was required
The requirement no longer exists; Section 18 was repealed by Section 21 of Act No. 17 of 2006 and the courts below erred in holding otherwise.
Both courts below relied on the absence of a High Court-issued certificate as a second ground of unlawfulness. That provision had been repealed by Section 21 of Act No. 17 of 2006, so no court permission is now required before levying distress. The contrary holding was per incuriam. However, this error did not change the outcome since the distress was already unlawful for lack of owing rent.
Quantum of damages for unlawful distress
The award of Kshs. 400,000 was a wholly erroneous estimate with no factual or legal basis and was set aside and substituted with nominal damages of Kshs. 50,000.
All that occurred was the attachment and shortly-after restoration of a television set and refrigerator. No goods were sold, so Section 8 of the Distress for Rent Act (double the value of goods wrongfully sold) offered no basis for the award. No authorities or reasons supported the figure, which was 'literally plucked from the air'. The Judge also misapprehended the case as one of unlawful eviction, relying inappropriately on the Mwalimu Hotel case.
Legal principles established
#- Section 18 of the Distress for Rent Act, requiring a High Court certificate before levying distress, was repealed by Section 21 of Act No. 17 of 2006; there is no longer a requirement that an auctioneer first obtain the court's permission before levying distress
- An appellate court should be slow to disturb an award of damages by a trial court but may interfere where the trial court took into account a factor it ought not to have, failed to take into account what it ought to have, or where the award is so high or so low as to be an erroneous estimate
Court orders
#- 1.Appeal allowed save to the extent stated
- 2.Judgment and decree of the High Court set aside
- 3.Damages payable to the respondent reduced to Kshs. 50,000 as nominal damages
- 4.The reduced damages payable with interest from the date of judgment of the Principal Magistrate
- 5.Each party to bear its own costs of the appeal
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 669 of 2011
- Jurisdiction invoked
- Second appeal to the Court of Appeal under the applicable appellate statutory framework (first appeal from the Principal Magistrate's Court dismissed by the High Court)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Ronald Nguru Gathara & 2 others v Cliff Mbala [2017] KECA 490 (KLR)", Case Analysis (2017). Civil Appeal No. 100 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/490/eng@2017-06-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.