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Court of AppealPartially AllowedCivil Appeal No. 100 of 2015· [2017] KECA 490 (KLR)

Ronald Nguru Gathara & 2 others v Cliff Mbala [2017] KECA 490 (KLR)

Court of Appeal
16 June 2017
1,685 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a second appeal to the Court of Appeal at Nairobi by three appellants (a landlord, his company, and an auctioneer) against the High Court (Sergon, J.) which on 13th February 2015 had dismissed their first appeal from a Principal Magistrate's award of Kshs. 400,000 in general and punitive damages to the respondent for unlawful distress for rent. The respondent's television set and refrigerator were attached on 11th July 2006 over alleged rent arrears, though a notice terminating the tenancy had been issued and accepted. The Court of Appeal upheld two concurrent factual findings that no rent was owing, making the distress unlawful. However, it corrected an important legal error: the courts below wrongly required a High Court certificate under Section 18 of the Distress for Rent Act, a provision repealed by Section 21 of Act No. 17 of 2006, so no court permission is now required before levying distress. On quantum, the Court found no factual or legal basis for the Kshs. 400,000 award, describing the figure as literally plucked from the air and an erroneous estimate, aggravated by the Judge's misapprehension of the case as one of unlawful eviction. Allowing the appeal in part, the Court set aside the High Court judgment and substituted nominal damages of Kshs. 50,000 with interest from the magistrate's judgment date, each party bearing its own costs of the appeal. The ruling binds subordinate courts on the non-existence of the certificate requirement and the test for appellate interference with damages.

Key legal issues

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01

Unlawfulness of the distress for absence of rent arrears

Holding

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.

Reasoning

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.

p. 3
02

Whether a High Court certificate under Section 18 of the Distress for Rent Act was required

Holding

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.

Reasoning

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.

p. 3
03

Quantum of damages for unlawful distress

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Appeal allowed save to the extent stated
  2. 2.Judgment and decree of the High Court set aside
  3. 3.Damages payable to the respondent reduced to Kshs. 50,000 as nominal damages
  4. 4.The reduced damages payable with interest from the date of judgment of the Principal Magistrate
  5. 5.Each party to bear its own costs of the appeal

Authorities

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Legislation

  • Distress for Rent Act Cap 293Section 18
  • Distress for Rent Act Cap 293Section 8
  • Auctioneers ActSection 34
  • Act No. 17 of 2006Section 21

Cases cited (3)

  • GUSII MWALIMU INVESTMENT LTD & 2 OTHERS vs. MWALIMU HOTEL KISII LIMITED
    [1996] eKLR
  • NTHENGE vs. WAMBUA
    [1984] KLR 799
  • KITAVI vs. COASTAL BOTTLERS LTD
    [1985] KLR 470
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.