Windsor Drycleaners Ltd & 3 others v Muthaiga Road Trust Co. Ltd & 3 others

JUDGMENT 1. The two appeals: Civil Appeal No. E357 of 2024 - Windsor Drycleaners Limited vs. Muthaiga Road Trust Co. Limited, Regent Management Limited & Joseph Gikonyo T/A Garam Investment Auctioneers, and Civil Appeal No. E502 of 2024 - Muthaiga Road Trust Co. Limited, Regent Management Limited & Joseph Gikonyo T/A Garam Investment Auctioneers vs. Windsor Drycleaners Limited, emanate from the judgment delivered on 20th March 2024 by Wabwoto, J. of the Environment and Land Court (ELC) at Nairobi. The appeals were heard together with Civil Appeal No. E357 of 2024 being designated the lead le. For convenience, we will treat the appeal by Windsor Drycleaners Limited as the main appeal having been led rst and that by Muthaiga Road Trust Co. Limited, Regent Management Limited & Joseph Gikonyo T/A Garam Investment Auctioneers as a cross-appeal. Henceforth, we will refer to Windsor Drycleaners Limited as the appellant and Muthaiga Road Trust Co. Limited, Regent Management Limited & Joseph Gikonyo T/A Garam Investment Auctioneers as the respective 1st to 3rd cross-appellants. 2. In the impugned judgment, the ELC found the cross-appellants liable for illegal distress for rent and trespass, and awarded the appellant Kshs. 10,000,000 in general damages. The appellant (Windsor Drycleaners Limited) was the tenant whereas the 1st cross-appellant (Muthaiga Road Trust Co. Limited) was the landlord, the 2nd cross-appellant (Regent Management Limited) the property manager, and the 3rd cross-appellant (Joseph Gikonyo T/A Garam Investment Auctioneers) was the auctioneer instructed to levy distress. 3. The dispute involved a commercial tenancy in regard to Unit No. 6, Ola Energy Plaza, formerly Mobil Plaza/Oil Libya Plaza, hereinafter referred to as the suit premises, from where the appellant had operated since 1993. A dispute arose over rent arrears, with the cross-appellants claiming that Kshs. 5,549,218.14 was outstanding, while the appellant contested this gure, citing its own reconciliation and stating that it had surrendered a store which was part of the leased premises. On 24th July 2020, the 3rd cross-appellant issued a proclamation of attachment for the stated arrears. The appellant challenged the proclamation by ling ELC Case No. E061 of 2020 through which it obtained an interim stay order. However, the stay order was subsequently discharged on 15th July 2021. Immediately upon discharge of the stay order, the cross-appellants proceeded to lock the suit premises. 4. It was therefore the appellant’s case at the trial that the cross- appellants unlawfully levied distress for rent and eventually evicted them on 15th July 2021, despite an ongoing dispute over the amount of the rent arrears. The appellant further asserted that the cross-appellants conducted an illegal auction on 29th July 2021, an action they claimed violated an injunctive court order served on the crossappellants on the morning of the auction. The appellant further pleaded that the cross-appellants’ actions destroyed its business operations and occasioned substantial nancial loss, particularly the loss of machinery. Accordingly, the appellant sought general damages and special damages totalling Kshs. 206,083,433, comprising loss of income of Kshs. 148,703,713; machinery replacement cost of Kshs. 39,137,240; clients’ clothing & linen worth Kshs. 7,333,300; and interest & penalties of Kshs. 8,032,623 arising from a bank facility. The cross-appellants denied liability and led a counterclaim for recovery of the rent arrears allegedly owed to them by the appellant. 5. In the judgment, the learned Judge concluded that no notice for distress for rent was issued to the appellant before the cross- appellants proceeded with the attachment of the property. Consequently, the learned Judge held that the distress for rent was undertaken in an illegal and unlawful manner, and therefore held the cross-appellants liable for trespass and wrongful seizure of the appellant’s property. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1819/eng@2026-09-25 2

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He awarded the appellant general damages in the sum of Kshs. 10,000,000 but dismissed its claim for special damages. Regarding the cross-appellants’ cross-claim, the learned Judge found that they had laid a basis and were entitled to payment of Kshs. 5,300,000 in outstanding rent. He therefore awarded them the said amount and directed that the net payment to be made to the appellant was Kshs. 4,700,000. 6. The appellant being aggrieved lodged Civil Appeal No. E357 of 2024, and through the memorandum of appeal dated 17th May 2024 seeks to overturn part of the judgment on the basis that the learned Judge erred in law and fact by: failing to nd that special damages had been specically pleaded and strictly proved, and thus erroneously failing to award special damages of Kshs. 203,083,433; nding that the appellant had failed to specically prove the claim for loss of income despite the overwhelming evidence adduced by the appellant; and, awarding the cross- appellants rent arrears of Kshs. 5,300,000 without evidence to show that such rent was due from the appellant. 7. On their part, the cross-appellants preferred Civil Appeal No. E502 of 2024, and through the memorandum of appeal dated 11th June 2024 appeal against part of the judgment on the grounds that the learned Judge erred in law and in fact by: nding that no notice for distress for rent was issued to the appellant despite overwhelming evidence that the 3rd cross- appellant issued a 14-day proclamation notice, to which the appellant reacted by ling a suit for injunctive orders; awarding Kshs. 10,000,000 in general damages despite the existence of overwhelming evidence that the distress for rent was legal, lawful and procedural; and, awarding excessive general damages. 8. When the appeals came up for virtual hearing on 20th January 2026, learned counsel Mr. Mwangi appeared for the appellant and learned counsel Mr. Ogembo represented the cross- appellants. Counsel for the parties mainly relied on their written submissions and made brief oral highlights and clarications. 9. Mr. Mwangi for the appellant submitted that special damages were pleaded with particularity in the plaint and proved through uncontroverted expert evidence. He submitted that the total claim for special damages of Kshs. 206,083,433 was made up of loss of income of Kshs. 148,703,713; machinery replacement cost of Kshs. 39,137,240; clients' clothing & linen valued at Kshs. 7,333,300; and interest & penalties of Kshs. 8,032,623 arising from a bank facility. Counsel referred to the testimony by PW2 - Robert Muhoro Ikundo, a consulting engineer with Norkun Intakes Ltd, to assert that a detailed valuation of the machinery and replacement costs was established. Counsel also referred to the evidence of PW3 - Moses Waithaka, an accountant, to contend that the claim for nancial loss was based on audited accounts for the period 2015 to 2020. Counsel argued that since the cross-appellants did not call experts to controvert these reports, the evidence remained unchallenged. Counsel further submitted that the cross-appellants acted in bad faith by closing the premises quickly, advertising the property for auction without notice, and disobeying court orders. It was counsel’s submission that the cross-respondents failed to prove their counterclaim, noting that the rent amount claimed kept mutating and that the cross-appellants declined an oer to reconcile accounts. 10. In answer to the cross-appellants’ appeal, Mr. Mwangi submitted that the trial court correctly found the cross-appellants’ actions to be illegal, and that the award of damages was justied. He maintained that the distress for rent was illegal from the outset and a nullity as no notice for distress for rent was issued on 15th July 2021, the day the premises were locked. According to counsel, the cross-appellants used the guise of levying distress to unlawfully evict the appellant and close its business premises immediately after an interim injunction was vacated on 15th July 2021. Counsel argued that the law does not permit a landlord to lock premises at the rst instance of levying distress and that by locking the premises and https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1819/eng@2026-09-25 3

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destroying the tools of trade, the cross- appellants unlawfully excluded the tenant from the property and the opportunity to generate the cash needed to buy o the distress. 11. Mr. Mwangi also submitted that the amount of rent in arrears was in dispute, as part of the claim included service charge, which is not rent, and that included in the arrears was rent for a store surrendered way back in 2017. He contended that no actual auction took place on 29th July 2021 and instead, the cross-appellants engaged in a wanton act of destruction by carting away property despite being served with a fresh court order of injunction earlier that day. Counsel maintained that the learned Judge was right to award general damages for trespass and wrongful seizure. Relying on Interoven Stove Co. Ltd vs. Hibbard and Another [1936] 1 All ER 263, counsel submitted that an illegal distress amounts to trespass, and a party is entitled to recover substantial damages even without proof of actual loss. Counsel adverted to sections 3(1) & 4(1) of the Distress for Rent Act in regard to the statutory requirements for lawful distress. Owayo vs. Aduda t/a Aduda Auctioneers & Another [2007] KECA 508 (KLR) was cited for the proposition that distress is illegal if there is no right to distrain or if a wrongful act is committed at the beginning of the levy. Additionally, the case of Kariuki vs. Wang’ombe [2005] 1 EA 107 was cited to emphasize that distrained goods should be left on the premises for 14 days and the tenant must be given notice. Counsel maintained that cross-appellants’ actions were extremely tortious and intended to frustrate the tenancy. Counsel therefore urged this Court to allow the appellant’s appeal. 12. Opposing Windsor Drycleaners Limited’s appeal, Mr. Ogembo for the cross-appellants submitted that the learned Judge correctly found that the appellant owed Kshs. 5,300,000 in rent arrears. Counsel proceeded to argue that the appellant's claim for Kshs. 148,703,713 in lost earnings was speculative and legally unproven, given that loss of earnings is a special damage that must be strictly proved. He maintained that the appellant failed to separate the actual income generated strictly from the suit premises from that generated from its other branches at National House, Two Rivers Mall, Kenrail Towers, and Unga House. Counsel pointed out contradictions in the appellant’s nancial reports, noting that the revenue gures for the same years diered across dierent pages of the record. He submitted that the appellant’s claim assumed a constant monthly prot of over Kshs. 6 million, ignoring actual audited records showing the business suered a net loss of over Kshs. 3 million in 2018. Similarly, counsel submitted that the other heads of special damages were neither pleaded with particularity nor specically proved. Counsel pointed out that the claim for furniture, ttings, clothing and linen, totaling approximately Kshs. 9.8 million were speculative, asserting that the appellant provided no primary documents, such as stock movement reports or ocial laundry lists, to prove these items were actually in the premises at the time of distress. 13. Mr. Ogembo also challenged the ELC jurisdiction to handle the claim for the cost of machinery replacement, arguing that the claim was an ordinary civil claim for negligence regarding alleged electrical damage, and not a land dispute. He cited the case of Thomas Okworo vs. Jeremiah Matoke Nyang’wara & 2 Others [2021] eKLR in support of this argument. Counsel also faulted the expert report for providing only likely costs of replacement, rather than actual receipts of costs incurred, which is insucient for proving special damages. 14. Counsel for the cross-appellants further submitted that the totality of the evidence adduced contradicted the nding by the trial court that no notice for distress for rent was issued. He maintained that a proclamation notice was issued on 24th July 2020, following a reconciliation of accounts that conrmed that the appellant owed rent arrears of Kshs. 5,549,218.14. Counsel submitted that in ELC Cause E061 of 2020, the appellant expressly admitted to receiving the proclamation notice and even annexed it to its supporting adavit. He submitted that because the appellant admitted service in its pleadings and submissions, the trial court's nding of non-service was a clear factual error. Counsel https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1819/eng@2026-09-25 4

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also submitted that under section 4(1) of the Distress for Rent Act and rule 12 of the Auctioneers Rules, a proclamation notice stating the cause of the distress was sucient notice and that the law does not require a separate or additional notice beyond the proclamation itself. 15. It was further submitted that while the distress was temporarily stayed by court orders in 2020, those orders were discharged on 15th July 2021. Citing Arun C. Sharma vs. Ashana Raikundalia [2014] eKLR, counsel argued that the discharge of a stay order allows an auctioneer to proceed with the original execution without the need to issue a fresh proclamation or new notice. 16. In regard to the general damages awarded to the appellant, Mr. Ogembo submitted that the award of Kshs. 10,000,000 for trespass, wrongful seizure, and illegal distress was a misapplication of legal principles. Counsel submitted that the trial court’s nding of illegal distress rested solely on the incorrect belief that no notice was served, yet service was proved. Counsel relied on Kenya Tourist Development Corporation vs. Sundowner Lodge Limited [2018] eKLR to argue that a court cannot award general damages for the same loss that a party failed to prove as special damages. He contended that awarding Kshs. 10 million after the respondent failed to prove the quantied losses amounted to judicial sentimentalism and a duplicated prayer, thereby characterizing the same as manifestly excessive and capricious. Consequently, counsel for the cross- appellants urged us to allow their cross-appeal and dismiss the appellant’s appeal. 17. This being a rst appeal, our mandate is well settled. We are required to reconsider the evidence on record, evaluate it and draw our own conclusions while bearing in mind that we did not have the advantage of seeing or hearing the witnesses testify. The principles were succinctly enunciated in Selle and Another vs. Associated Motor Boat Company Ltd and Others [1968] 1 EA 123 wherein Sir Clement De Lestang V-P opined that: “ I accept counsel for the respondent’s proposition that this court is not bound necessarily to accept the ndings of fact by the court below. An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briey put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this court is not bound necessarily to follow the trial judge’s ndings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities, materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally (Abdul Hameed SaJ v. AH Mohamed Sholan (1955), 22 E.A.C.A. 270).” Also see Abok James Odera T/A A.J. Odera & Associates vs. John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR. 18. We have carefully considered the record of appeal, the submissions of counsel, the authorities cited, and the applicable law, and we identify the issues for our determination as follows: a. Whether the appellant strictly proved the claimed special damages; b. Whether the learned Judge erred in nding that no notice for distress was issued; c. Whether the award of Kshs. 10,000,000 in general damages was justied; and d. Whether the trial court erred in allowing the cross- appellants’ counterclaim for rent arrears. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1819/eng@2026-09-25 5

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19. All the issues will be addressed together. We start by observing that it is a settled principle of law that special damages must be specically pleaded and strictly proved. Thus, in Hahn vs. Singh [1985] KECA 129 (KLR), this Court stated that: “ Now the next two grounds of the memorandum concern special damages which must be not only claimed specially but proved strictly for they are not the direct natural or probable consequences of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and the nature of the acts themselves.” 20. Similarly, in Capital Fish Kenya Limited vs. The Kenya Power & Lighting Company Limited [2016] KECA 56 (KLR), the Court emphasized that a claimant must produce credible evidence demonstrating the precise loss suered. In that regard, the Court held that: “For all the foregoing reasons, we are satised that although the trial court correctly found that the special damages had been specically pleaded, there was no credible evidence whatsoever that proved the pleaded special damages. The trial court’s nding on that score can thus not be faulted.” 21. The burden, therefore, squarely lay upon the appellant to demonstrate, with a reasonable degree of certainty, the exact loss suered as a consequence of the cross-appellants’ actions. The largest component of the appellant’s claim consisted of Kshs. 148,703,713 allegedly representing loss of income arising from the closure of the suit premises. The appellant relied principally on the nancial statements prepared by Mr. Waithaka based on the company’s audited accounts for the period 2015 to 2020. 22. However, upon reviewing the record, it becomes evident that the nancial statements relied upon related to the entire business operations of the appellant, which included several other branches in National House, Two Rivers Mall, Kenrail Towers and Unga House. The reports did not isolate the specic revenue generated from the suit premises. 23. In Kiai t/a Pema Wines & Spirits vs. Attorney General & 2 Others [2021] KECA 328 (KLR), this Court when considering a claim for special damages opined that: “ Coming to the present appeal, the Appellant did not specically plead the loss he alleged to have incurred as a result of loss of stock in trade and destruction of his property by the Respondents of Kshs 32,000,000/= in his petition. The trial Judge was however still willing to consider the claim but for the fact that the Appellant also did not prove the said loss. Proof of special damages is on a balance of probabilities, by way of veriable evidence demonstrating precise calculations. The Appellant in this respect attached an annexure marked “PNK8” to the adavit in support of his petition, which was described as a breakdown of the losses incurred. The said document which was titled “Pema Wines Spirits Stock Count & Value”, does not indicate the source or maker, and the costing of the items therein are not supported by any documents or evidence to show that the Appellant did indeed purchase or acquire the said items and their price. We cannot in the circumstances fault the trial Judge for his nding that the said quantied loss was not suciently proved.” 24. In the circumstances of the appeal before us, the appellant bore the burden of demonstrating the prots generated from the Ola Plaza branch thereby specically linking the alleged loss to the actions of the appellant. Without such segregation, the claimed loss inevitably becomes speculative. Furthermore, https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1819/eng@2026-09-25 6

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the projections relied upon by the appellant assumed a constant prot exceeding Kshs. 6,000,000, yet the company’s own nancial statements showed that the business had recorded losses in previous years, specically in 2018. Such assumptions signicantly undermined the reliability of the projections. 25. The appellant also sought compensation for clothing and linen allegedly belonging to customers, which were said to have been lost during the distress. However, no primary documents, such as inventory records, laundry registers, or stock movement reports, were produced to demonstrate that such items were present in the premises at the time of distress. 26. In Viktar Maina Ngunjiri vs. Jack and Jill Supermarket Limited [2019] KECA 144 (KLR), this Court held that merely listing items without adducing supporting documentary evidence to prove their existence at the material time is not sucient to support a claim for special damages. In that regard, the Court held that: “ The appellant complains that special damages were not proved. This complaint has merit. Although special damages were specically pleaded in the plaint the judge found that the respondent was only able to specically prove a sum of Kshs.1,508,000 which was supported by a receipt for that sum produced by PW1. The receipt was issued by Unit Metal Fabricators for steel doors and aluminum locks plus labour costs for installation of the same.” 27. The appellant sought Kshs. 39,137,240, allegedly representing the cost of replacing machinery said to have been damaged by an electrical surge. The cross-appellants, however, produced evidence of a scheduled power shutdown by the Kenya Power and Lighting Company during the period the appellant alleged a surge occurred. This creates a break in the causal link. More importantly, the expert report relied upon by the appellant only provided estimated replacement costs, rather than evidence of actual expenditure incurred. Special damages cannot be awarded on likely costs or estimates. They require proof of the actual amount expended. 28. Turning to the cross-appellants’ counterclaim, we note that the trial court awarded the cross-appellants Kshs. 5,300,000. In support of their case, the cross-appellants relied on the appellant’s letter dated 16th July 2021, in which the appellant acknowledged the existence of rent arrears and proposed a payment plan. A perusal of the record conrms that the appellant made a proposal to clear the outstanding rent of Kshs 5.3 million. 29. An admission of fact contained in correspondence is strong evidence and may form the basis for entering a judgment. In Choitram & Another vs. Nazari [1984] KECA 47 (KLR), it was stated that: “Admissions of fact under order XII rule 6 need not be on the pleadings. They may be in correspondence or documents which are admitted or they may even be oral. The rule uses the words “or otherwise” which are words of general application and are wide enough to include admissions made through letter, adavits and other admitted documents and proved oral admissions.” 30. Furthermore, the trial court’s order dated 29th July 2021 described this sum as admitted rent arrears. Having not appealed that specic nding at the time, the appellant cannot now seek to overturn it on the basis that the gures provided by the cross- appellants kept mutating. In the absence of evidence demonstrating that the admission was made in error or under duress, the appellant cannot now resile from its admission. 31. The law on special damages is rigorous and we agree with the learned Judge that the appellant did not meet the standard of proof required for the award of the sum of Kshs. 206,083,433. The claim for loss https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1819/eng@2026-09-25 7

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of income was not specically connected to the suit premises, and the alleged damage to the machinery lacked a proven link to the cross-appellants’ actions. 32. The learned Judge’s nding that no notice was issued formed the cornerstone of his conclusion that the distress for rent was unlawful. The cross-appellants challenge that nding, contending that it ies in the face of the evidence on record. We have ourselves perused the record and note that the proclamation notice dated 24th July 2020 was not only issued, but was expressly acknowledged by the appellant in ELC Cause No. E061 of 2020, by annexing it to its supporting adavit. That admission, in our view, constitutes cogent and unequivocal evidence of service. 33. Under section 4(1) of the Distress for Rent Act, Cap. 293, the requirement is that the tenant be given notice stating the cause of distress. The law does not prescribe any particular form beyond the proclamation itself. This position is reinforced by rule 12 of the Auctioneers Rules. A proclamation issued by a licensed auctioneer suces as notice. On this, we nd support in the holding of the Court in National Industrial Credit Bank Limited vs. S. K. Ndegwa Auctioneer [2005] KECA 22 (KLR) that: “It is clear from Rule 12 as read with Rule 14 of the Auctioneers Rules and the contents of the prescribed form, that is, Sale Form 2 that the proclamation of the movable goods is legally and eectively an attachment. From the moment the goods are proclaimed, the judgment-debtor is deprived of the legal possession and physical control of the goods and instead the goods are placed in the custody of the law and the court through the auctioneer. The judgment-debtor can only redeem them by the payment of the debt. If the judgmentdebtor fails to pay the auctioneer moves to the second stage of conducting the sale of the attached goods.” 34. There is the other question as to the eect of the stay order on the proclamation. In our view, once execution has been lawfully commenced and a stay order that had been issued is subsequently vacated, the process may proceed without the need to issue fresh notice. Our understanding of the law nds support in Mbuthia vs. Jimba Credit Finance Corporation & Another [1988] KECA 116 (KLR), where Apaloo, JA, while dissenting for dierent reasons, opined that: “ It is plain that section 74 did not impose on the chargee, the giving of more than one notice and there is no sound policy reason why he should be obliged to give fresh notice to the chargor any time a sale was suspended to accommodate him. If such were a legal requirement, no chargee in his right mind would suspend a projected sale as a matter of favour or indulgence to a defaulting mortgagor. But in so far as the requirement of a second notice is supposed to be based on common law principles, this is less than correct. The legal position at common law is stated at page 308 of Fisher & Lightwoods Law of Mortgages 8th Edn. at p. 308 as follows:“If after demand, the sale is stopped on receipt of a cheque for the amount due under the mortgage, but the cheque is afterwards dishonoured, the right of sale and the running of notice having been only suspended revive, and the power may be exercised without serving a new notice.” This is the legal position as Mr. Kembi for the Jimba Credit Corporation conceived it and that was his oft- reiterated submission. In my opinion, he was right. The point is actually concluded by authority. In Wood v Murton 1877 LJ QB 191 or Vol. 87 LTR 788. Lush J decided that point as clearly as anything can be decided. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1819/eng@2026-09-25 8

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The headnote in that case reads:“ In a deed of mortgage, the mortgagor agreed that in default of payment of interest for seven days after notice, the mortgagee should have an absolute power of sale. Default was made. On the sixth day, the interest due was reduced by payment on account and bill of exchange accepted by the mortgagor was dishonoured.” The mortgagor then attempted to sell and a contention akin to the one raised before us by the appellant was made. Lush J said:“The bill suspended the remedy by auction for the mortgage debt and prima facie, it suspended also the running of notice. Both revived when the bill was dishonoured, and the Plainti was then remitted to the position in which he stood when the bill was given. I cannot infer an agreement that if the bill was not paid, the Plainti should begin again and give a fresh notice which would be to place him in a worse position than he was in when he consented to give time”. Every word of that passage applies to this case, and seems to me, if I may say so, makes business sense. That was also the conclusion to which the judge below reached on this part of the argument. He was right and the appellant’s contention was, I think, unsound and ought to be rejected.” 35. In our understanding, the holding by Apaloo, JA is a correct exposition of the law. A pause in the execution process, however caused, should not render the original notice redundant. Of course there are exceptions, one being where the proclaimed goods are no longer available and the auctioneer will need to issue fresh proclamation for dierent goods. However, in the matter before us it appears that despite the existence of the stay order the proclaimed goods were never released to the appellant. They therefore remained available for disposal. It is our conclusion that the proclamation issued in July 2020 remained valid and operative upon the discharge of the interim stay orders on 15th July 2021. We thus arrive at the conclusion that the learned Judge erred in holding that no notice had been issued for there existed a valid proclamation. 36. However, that is not the end of the matter. The legality of distress does not turn solely on the issuance of notice but extends to the manner in which the distress is executed. The appellant’s contention is that immediately upon the lifting of the injunction on 15th July 2021, the cross-appellants proceeded to lock the suit premises on the same day and denied the appellant access to the premises. 37. The law governing distress for rent is clear. Whereas the landlord is entitled to levy distress, that right must be exercised strictly within the connes of the law. Section 4 of the Distress for Rent Act, Cap. 293 grants the tenant or the owner of the goods or chattels distrained a period of fourteen days, from the date of the destraint, within which to pay the rent together with the costs of the distress. Although the distrained goods can be sold prior to the expiry of the fourteen days, this can only be done with the consent of the tenant or the owner of the goods or chattels distrained. The rationale for the requirement is to safeguard the tenant’s equity of redemption and to prevent the abuse of the remedy of distress as a tool for summary eviction. 38. In the present case, the locking of the suit premises had the eect of dispossessing the appellant of the premises. The act went beyond the permissible bounds of distress and amounted, in substance, to an unlawful eviction. We are therefore satised that although the initial distress was lawfully commenced, the manner of its execution was procedurally awed and rendered the entire process unlawful. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1819/eng@2026-09-25 9

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39. As a result of this breach, the appellant was entitled to compensation. The Court in Owayo vs. George Hannington Zephania Aduda t/a Aduda Auctioneers & Another (supra), when faced with a similar incident held that: “The appellant did not produce receipts to prove strictly the value of each of the goods that were distrained and sold. He produced proforma invoices in respect of some of the goods but not in respect of others. Further, his list of the goods removed and sold was not in consonance with the goods entered in the proclamation dated 2nd March 1999 which was allegedly signed by one Alison said to be the appellant’s daughter. Alison was not called by the appellant to deny or conrm what was actually carried away from the appellant’s house, nor did the respondent call her for the same purpose. We are however, certain, in our view, that goods belonging to the appellant were illegally distrained, and that the appellant suered loss on that account. At least the goods in the proclamation were removed. That is conceded. We are also certain in our mind that the illegal distress amounted to a trespass and the appellant is in law entitled to general damages arising from the trespass upon his premises and his goods.” 40. Similarly, in Viktar Maina Ngunjiri vs. Jack and Jill Supermarket Limited (supra), the Court held that: “ It was proved to the satisfaction of the trial court that it is the appellant who arranged for the said acts of trespass upon the respondent's premises. The trial court found that although no specic credible evidence had been led on the issue of general damages the respondent had proved that the appellant had invaded its premises leading to looting of goods in the same which led to the respondent suering loss. The High Court did not nd the basis for awarding general damages but awarded punitive or exemplary damages instead. Looking at the evidence led on behalf of the respondent we are of the same view as the trial court that the respondent did not lead evidence on the issue of suering general damages but that it was entitled to punitive or exemplary damages for the manner in which the appellant invaded the premises, trespassed on the same which led to members of the public entering the premises and engaging in acts of looting of goods in the supermarket.” 41. It is therefore without any doubt that the appellant was entitled to some recompense from the crossappellants as a result of the unprocedural manner in which they removed the distrained goods from the demised premises. The question then is whether the award of Kshs. 10,000,000 in general damages was appropriate in the circumstances. It is trite that an appellate court will not interfere with an award of damages unless it is demonstrated that the trial court acted on wrong principles or that the award is so inordinately high or low as to represent an erroneous estimate. In Butt vs. Khan [1978] KECA 24 (KLR), it was held that: “An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a gure which was either inordinately high or low.” 42. Varied positions obtain as to remedy available once it is demonstrated by the tenant that the proclamation and or sale was irregular or illegal. In Kimakia Co-operative Society vs. Green Hotel [1988] KECA 114 (KLR), this Court held that: “ Moreover no prots were proved on the basis of which damages could be assessed. Where damages are at large and cannot be quantied, the Court may have to assess damages upon https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1819/eng@2026-09-25 10

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some conventional yardstick. But if a specic loss is to be compensated and the party was given the chance to prove the loss and did not, he cannot have more than nominal damages. I agree with the appellant that the damages awarded were not awarded on any sound basis.” 43. Similarly, in Kenya Tourist Development Corporation vs. Sundowner Lodge Limited [2018] KECA 312 (KLR), the Court held that: “ It is thus clear that other than for nominal damages – which really represent damages only in name, being in quantum quite negligible – what monies would have been recoverable would have been in the nature of special damages properly quantied, pleaded and proved which, in the event, the respondent laid before the trial but failed to prove.” 44. The Court, while setting aside the general damages awarded to the respondent, opined that: “ Other than the fact that there was no justication, and on proper appreciation of the law perhaps no jurisdiction, to grant general damages in a case such as was before him, we must also point out that even if such damages had been recoverable, it was a wholly erroneous approach on the part of the learned Judge to award some Kshs. 30 million with absolutely no foundation. There was no authority cited on quantum, no discussion, no justication and no comparable that would have led to that sum. Essentially, as Mr. Musyoka complains, the learned Judge whimsically and capriciously imposed that gure, literally plucking it out of the air. That cannot be a proper way to arrive at damages because it is a judicial exercise not an oracular pronouncement. The sum, even were it awardable would have been, with respect, impossible to comprehend, less still defend.” 45. At the other end of the spectrum, this Court has awarded or upheld the general damages and exemplary damages. Thus, in Owayo vs. George Hannington Zephania Aduda t/a Aduda Auctioneers & Another (supra) the Court allowed an appeal against the dismissal of the appellant’s claim, whose goods had been wrongly distrained, and awarded Kshs. 400,000 as general damages for trespass to goods and Kshs. 10,000 as exemplary damages. 46. And, in Viktar Maina Ngunjiri vs. Jack and Jill Supermarket Limited (supra), this Court armed an award of Kshs. 20,000,000 as punitive or exemplary damages, holding that: “ The trial court found that although no specic credible evidence had been led on the issue of general damages the respondent had proved that the appellant had invaded its premises leading to looting of goods in the same which led to the respondent suering loss. The High Court did not nd the basis for awarding general damages but awarded punitive or exemplary damages instead. Looking at the evidence led on behalf of the respondent we are of the same view as the trial court that the respondent did not lead evidence on the issue of suering general damages but that it was entitled to punitive or exemplary damages for the manner in which the appellant invaded the premises, trespassed on the same which led to members of the public entering the premises and engaging in acts of looting of goods in the supermarket. The respondent complains in the cross appeal that the award of the punitive or exemplary damages at Shs.20,000,000 was low and that we should interfer and enhance the same. We have considered that prayer. Award of damages is at the discretion of a trial court. This has been the law in this country for many years. An Appellate Court should be hesitant in interfering with an award of damages unless it can be shown that the same is too low or too https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1819/eng@2026-09-25 11

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high as not to reect the particular circumstances of the case. Law, JA in considering this issue in the case of Butt vs. Khan [1981] KLR 349 stated: “ An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a gure which was either inordinately high or low.” Considering the circumstances and the evidence that was led before the trial court we think that the award made was reasonable in the circumstances. We have no right to interfere.” 47. In the appeal before us, the appellant sought special damages of Kshs. 206,083,433, comprising of loss of business, machinery, and income. The trial court, however, found that those claims were not proved to the required standard. The learned Judge, nevertheless, proceeded to award Kshs. 10,000,000 as general damages for trespass and illegal distress. 48. While it is correct that wrongful distress constitutes trespass and the injured party is entitled to some damages even in the absence of strict proof of loss, such damages should be grounded on principle and comparable awards. Although the learned Judge rehashed at length the principles governing the award of damages, he never cited any authority on quantum nor did he attempt to justify the award. The learned Judge must therefore be faulted for not justifying the award. However, we have already concurred with the nding of the learned Judge that the cross- appellants’ actions amounted to trespass arising from unprocedural execution of the distress warrant. In such circumstances, the appellant was entitled to an award of damages to vindicate its rights, and as was observed in Ashby vs. White (1703) 2 Ld Raym 938, where a legal right is infringed, the law presumes damage. 49. In Kenya Power & Lighting Company Limited vs. Fleetwood Enterprises Limited [2017] KECA 358 (KLR), the Court held that: “ It is trite law and as correctly submitted by counsel for the respondent that trespass to land is an actionable tort per se and proof of damage is not necessary or required. In other words, where trespass is proved as in this case, the aected party such as the respondent need not prove that it suered any damage or loss as a result so as to be awarded damages. The court is under the circumstances bound to award damages, of course depending on the facts of each case. See Simiyu v Sinino [1985] eKLR and Obadiah K. Macharia v Kenya Power and Lighting Company Limited. This then puts to rest the submissions by the appellant that the respondent ought to have specically pleaded the loss it had suered and proceeded to prove the same. It does appear to us that perhaps the appellant was suering under the illusion that this was a claim for special damages on the footing of trespass. Nothing could be further from the truth.” 50. Considering that the decision in Owayo vs. George Hannington Zephania Aduda t/a Aduda Auctioneers & Another (supra) was made way back in 2007 and Viktar Maina Ngunjiri vs. Jack and Jill Supermarket Limited (supra) was decided in 2019, and notwithstanding that the learned Judge never justied the award of Kshs. 10,000,000 as general damages for trespass, we would on our part be hesitant to interfere with the discretion of the learned Judge as it has not been demonstrated that he wrongly exercised his discretion. The facts in Viktar Maina Ngunjiri vs. Jack and Jill Supermarket Limited (supra) are closer to the appeal before us considering the manner of the eviction of the appellant. The appellant sought both general damages, and exemplary and punitive damages. Being persuaded by the decision in Viktar Maina Ngunjiri vs. Jack and Jill Supermarket Limited (supra), we https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1819/eng@2026-09-25 12

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will reclassify the award of Kshs. 10,000,000 so that it becomes an award of exemplary and punitive damages instead of an award for general damages. Otherwise, without any good reason having been advanced for our interference with the award of the damages, the cross- appellant’s appeal must fail. 51. As for the counterclaim, we have already found that there was an express admission of the debt by the appellant through the payment proposal it made to the 1st cross-appellant. Therefore, the appeal against that nding lacks merit. 52. Consequently, we nd both Civil Appeal No. E357 of 2024 and Civil Appeal No. E502 of 2024 to be without merit and we dismiss them. 53. In view of the outcome of the appeals, the just and appropriate order on costs is to direct the parties to meet their own costs of the appeals, which we hereby do. 54. It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 25TH DAY OF SEPTEMBER 2026. P.NYAMWEYA .................... JUDGE OF APPEAL A. O. MUCHELULE .................... JUDGE OF APPEAL W. KORIR .................... JUDGE OF APPEAL I certify that this is a True copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1819/eng@2026-09-25 13

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