Maalim v Isiolo Central Farmers Cooperative Society Limited & another

ii. The defendants observed to return all plaintiffs goods and items carried from the suit premises on the 09.05.2022 as tabulated in the aforementioned paragraphs and/or in the alternative the defendants be directed to compensate the plaintiff to a tune of two million three hundred and eleven thousand only for the loss of such items. iii. The plaintiffs be compensated for loss of business to a tune of twelve million for such period he has missed out on being in gainful used of the business premises. iv. Mense profits, aggravated, exemplary and punitive damages for business loss, disturbance and interruption be awarded to a tune of thirty million in favour of the plaintiff. v. Special damages pleaded herein above. vi. General damages for pain, suffering an loss of livelihood. vii. Costs of this suit together with interest. viii. Any other relief that this honourable court may deem just and fit to grant. 3. The Plaintiff’s suit is predicated on various assertions. The assertions are: The plaintiff entered into and executed a lease agreement, dated the 30.10.2016; the lease was in respect of the property known as plot number 560-Isiolo Town ship [ herein after referred to the suit property]; the lease was for a duration of 20 years; the plaintiff duly entered upon and took possession of the demised premises; the plaintiff commenced to and operated a business in the premises; the plaintiff’s business was Page 2 of 31

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known as Albagda Hotel; and the plaintiff expected the business to run/operate without any interruption. 4. It was the further assertion by the plaintiff that: The 1 st defendant started to threaten and interfere with his tenancy; the plaintiff was constrained to and obtained orders from the Business Premises Rent Tribunal [BPRT]; and the orders of the tribunal barred the 1st defendant from interfering with the plaintiffs business. 5. Additionally, the plaintiff has posited that: Despite obtaining orders from the tribunal, the 1st defendant proceeded to and obtained exparte orders vide Isiolo CM Misc. Application No. E013 of 2022; the 1st defendant thereafter instructed the 2nd defendant to levy distress; the 2nd defendant proceeded to and levied distress on the movable properties of the plaintiff; the orders obtained vide Isiolo CM Misc. E013 of 2022, were procured by the deceit and misrepresentation; and the plaintiffs goods were illegally distrained. 6. It was the further contention by the plaintiff that: arising from the actions of the defendant, the same [plaintiff] has suffered extreme loss and damages. In particular, the plaintiff has averred that same has been deprived of the usage of the goods that were distrained; suffered loss of business; suffered loss of the building materials that same had deposited on the suit property, in readiness for renovation; and suffered interruption of business. Page 3 of 31

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7. Premised on the foregoing, the plaintiff has sought the various reliefs, whose details have been captured at the foot of paragraph one hereof. Suffice it to state that the plaintiff has implored the court to award the reliefs sought. 8. The 1st defendant duly entered appearance and thereafter, filed a statement of defence. The 1st defendant denied the claims by the plaintiff. Moreover, the 1st defendant contended thus: The plaintiff herein did not have a valid lease agreement with the 1 st defendant. In addition, it was posited that the plaintiff had failed to pay the rents that were due and owing. Further, it was averred that the plaintiff had accumulated rent arrears of Kshs. 3,560,000/= only. 9. The 2nd defendant, though served neither entered appearance nor filed a statement of defence. The plaintiff thereafter, proceeded to and obtained interlocutory judgment, as against the 2nd defendant. 10.The subject matter proceeded for hearing. The plaintiff’s case is premised on the evidence of three witnesses. The witnesses are Abdi Salat Maalim; Hassan Mohammed Maalim; and Mohammed Jillo. The witnesses testified as PW1, PW2 and PW3, respectively. 11.It was the testimony of PW1 [Abdi Salat Maalim] that same is the plaintiff in respect of the instant matter. The witness averred that by virtue of being the plaintiff, same is conversant with the facts of the case. In addition, the witness averred that same has since recorded two sets of witness statements, dated the 03.03.2026 and the 09.06.2026, which statements, the witness sought to adopt and rely on as his evidence in Page 4 of 31

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chief. The witness statements, were thereafter adopted and constituted as the evidence in chief of the witness. 12.Additionally, the witness testified that same has filed several sets of documents. The witness referenced the list and bundle of document dated the 03.03.2026, containing 17 documents; and which documents, the witness sought to produce as exhibits. There being no objection to the production of the documents, same were duly produced and admitted as exhibit P1-P17, respectively. 13.The witness also referenced the list and bundle of documents dated the 09.06.2026, containing 6 documents, and which documents, the witness sought to produce as exhibits before the court. In the absence of any objection, the documents were admitted as exhibits P18 to P24, respectively. 14.Furthermore, the witness clarified that documents number 6 [exhibit P23] is a tenancy agreement dated the 16.05.2022 entered into between the 1 st defendant and a 3rd party. 15.It was the further testimony of the witness that the same filed the plaint dated the 03.03.2026 and a verifying affidavit of even date. The witness invited the court to take note of the plaint and grant the reliefs sought. 16.On cross examination by learned counsel for the 1st defendant, the witness testified that he entered into the premises owned by the 1 st defendant in the year 1993. The witness averred that at the time of entry into the Page 5 of 31

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premises, the monthly rent was Kshs. 3000/= per month. Thereafter, the witness averred that the rents were increased variously, upto the sum of Kshs. 10,000/= per month. 17.It was the further testimony of the witness that same entered into a lease agreement dated the 08.06.2015 and that the agreement was for a duration of 10 years. To this end, the witness referred to DMFI 1 and confirmed that same was a true copy of the lease agreement that was entered into. Nevertheless, the witness averred that the said agreement was varied/rescinded vide another agreement, which was entered into in the year 2016. 18.In addition, the witness testified that exhibit number P7 is a copy of the lease agreement between the 1st defendant and himself. The witness averred that the lease agreement contained various terms, including the term of the lease, the monthly rents; and further that the lease was duly executed by both parties. The witness clarified that the lease agreement bears the rubber stamp of advocate for the 1st defendant. 19.While still under cross examination, the witness testified that the society duly issued resolutions, which authorized the entry into the lease agreement. In addition, the witness testified that the rents at the foot of the lease were agreed in the sum of Kshs. 20,000/= only. Besides, the witness asserted, that the rents were payable on monthly basis. 20.Regarding whether the lease had a clause pertaining to retaking of possession by the land lord in the event of default to pay rents, the Page 6 of 31

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witness averred that there was no such clause. In particular, the witness asserted that the land lord did not have a basis to re-enter the business premises. 21.It was the further testimony of the witness that the same paid the rent, which were due to the land lord. The witness added that there were no rent arrears. Besides, the witness posited that same has since tendered and adduced the receipts before the court. 22.Furthermore, the witness averred that the 1st defendant instructed an auctioneer namely; the 2nd defendant to levy distress as against the properties of the plaintiff. In this regard, the witness averred that various goods/merchandise, were seized/confiscated. The witness added that the goods were worth Kshs. 1,200,000/= only. Moreover, the witness testified that he had also deposited assorted materials on site, which same intended to use for repair of the demised premises. It was posited that the materials were later used by the 1st defendant. 23.Upon being referred to paragraph 8 of the plaint, the witness averred that he has spoken about the value of the goods/merchandise that were seized by the defendants. In addition, the witness testified that he has availed receipts before the court. The witness posited that the total value at the foot of the receipts is Kshs. 1,111,000/= only. 24.Regarding exhibits P16, the witness averred that the same is a letter dated the 06.12.2023. The witness posited that the letter emanated from the 1 st Page 7 of 31

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defendant. However, the witness clarified that the same does not agree with the contents of the said letter. 25.As concerns the seizure of the goods from the premises, the witness testified that the goods were seized in his absence. The witness averred that the goods have never been returned and or recovered. In addition, the witness reiterated that the seizure of the goods, was illegal and unlawful. 26.While still under cross examination, the witness testified that he was undertaking a business on the suit premises. In particular, the witness averred that same was running an hotel business. Nevertheless, the witness conceded that he has not tendered any certificate of registration of business; business license; or the single business permit. The witness clarified that he has not brought the said documents because same were inside the premises at the time when the distress was undertaken. 27.The witness further testified that he was removed from the suit premises in the year 2021. To date the witness asserts that same has not returned to the premises. The witness has indicated that the same has sought compensation in the sum of Kshs. 12,000,000/= only. However, the witness averred that he has not brought any receipt to vindicate the claim for Kshs. 12,000,000/=. 28.While still under cross examination, the witness testified that he has only brought two claims before the court. The witness clarified that the claims relates to the goods which were illegally distrained; and the claim for the Page 8 of 31

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building materials that were on the site. However, the witness averred that same does not know about the other claim[s]. 29.Regarding the receipts which were tendered before the court, the witness admitted that some do not bear the stamps from the people/ entities, who sold the items to him. 30.The 2nd witness who testified on behalf of the plaintiff was Hassan Mohammed Maalim. The same testified as PW2. 31.It was the testimony of the witness that same is familiar with the facts of this case. In addition, the witness averred that same has since recorded a witness statement dated the 09.06.2026 and which statement, the witness sought to adopt and rely on as his evidence in chief. The witness statement was thereafter adopted and constituted as the evidence in chief of the witness. 32.On cross examination by learned counsel for the 1st defendant, the witness averred that same was previously, an official of the 1 st defendant. However, the witness clarified that same left office in the year 2020 , because the members of the society had raised several complaints. Nevertheless, the witness denied that he was removed from the office/leadership. 33.It was the further testimony of the witness that he is privy to the lease agreement that was entered with the plaintiff. In particular, the witness averred that he was one of the officials, who executed the lease on behalf Page 9 of 31

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of the 1st defendant [ land lord]. The witness added that before the entry into and execution of the lease, the society generated resolution authorizing the lease. It was conceded that the resolution has not been produced before the court. 34.Additionally, the witness, testified that the plaintiff herein was authorized to take renovation of the premises. The witness asserted that there was an agreement which authorized such renovation. 35.Regarding whether the plaintiff was undertaking any business in the premises, the witness averred that the plaintiff could not undertake the business in the premises, because the premises were dilapidated. For good measure, the witness averred that there was no hotel business that was being undertaken in the premises between the year 2015 upto 2021. Moreover, the witness averred that the officials of the society did not block the plaintiff from undertaking his business in the premises. 36.Regarding payment of rents, the witness averred that the plaintiff used to pay the rents by depositing same in the bank account or by making cash payment. Thereafter, the witness averred that the society would issue receipts in acknowledgment of the rent. 37.Upon being referred to the lease agreement dated the 30.10.2016, the witness confirmed that same was the lease agreement, that was entered into between the plaintiff and the 1st defendant. The witness indicated that he is one of the officials who signed the lease. In particular, the witness identified his signature. Page 10 of 31

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38.Concerning payment of rents, the witness averred that the plaintiff used to pay the rents to the 1st defendant and that the rents, were duly acknowledged. The witness clarified that the plaintiff was not in arrears. 39.The third [3rd ] witness who testified on behalf of the plaintiff was Mohammed Jillo. The witness testified as PW3. 40.It was the testimony of the witness that same is familiar with the facts of this case. In addition, the witness averred that same has since recorded a witness statement dated the 09.06.2026. Thereafter, the witness sought to adopt and rely on the witness statement, as his evidence in chief. Suffice it to state that the witness statement was duly adopted and constituted as the evidence in chief of the witness. 41.On cross examination by learned counsel for the 1st defendant, the witness averred that he was previously the chairperson of the 1st defendant. The witness added that he resigned in the year 2021. However, it was the testimony of the witness that the plaintiff did not have any rent arrears. 42.Upon being referred to exhibit P18, the witness averred that the document is a letter dated the 19.04.2021. The witness added that the letter is contained on the letter head of the 1st defendant. Besides, the witness averred that the letter was addressed to various persons, including the plaintiff. Further, and in addition, the witness posited that the subject of the letter, was payments of the rent arrears. Page 11 of 31

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43.While still under cross examination, the witness testified that the plaintiff herein had deposited assorted building materials on the site. The witness also averred that the plaintiff had hotel items and goods that were in the store. In addition, the witness asserted that the store was locked. 44.Regarding the seizure of the items belonging to the plaintiff, the witness testified that he was not present when the said items were seized. The witness added that the seizure took place long after same had left office. 45.It was the further testimony of the witness, that same did not find any hotel business being done in the premises. The witness clarified that he found the business of the hotel and the shop already closed. 46.With the foregoing testimony, the plaintiff’s case was closed. 47.The 1st defendant’s case is premised on the evidence of one witness. The witness is Abdulahi Dika. The witness testified as DW1. 48.It was the testimony of the witness that same is familiar with the facts of the case. In addition, the witness averred that same has since recorded two sets of witness statement dated the 15.05.2026 and the 15.06.2026, and which statements, the witness sought to adopt as his evidence in chief. Suffice it to state that the two [2] sets of statements, were duly adopted and constituted as the evidence in chief of the witness. Page 12 of 31

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49.The witness thereafter adverted to the list and bundle of documents dated the 15.05.2026, containing 5 documents. The witness sought to produce the documents as exhibits before the court. There being no objection to the production of the documents, same were duly produced and marked as exhibit D1 – D5, respectively. 50.In addition, the witness referenced the further list and bundle of documents dated the 15.06.2026, containing two documents and which documents, the witness sought to tender as exhibits. In the absence of any objection, the documents were admitted as exhibits D6 and D7, respectively. 51.It was the further testimony of the witness that same has also filed a further list and bundle of documents, dated the 29.06.2026. The witness indicated that the lists contained three documents and which documents, the witness sought to produce as exhibits. There being no objection to the production of the documents, same were duly admitted as exhibits D8 – D10, respectively. 52.Thereafter the witness, referenced the statement of defence dated the 31.03.2026 and which statement of defence the witness sought to adopt. The court was invited to find and hold that the plaintiff’s suit, was devoid of merits and to dismiss same. 53.On cross examination by learned counsel for the plaintiff, the witness averred that he is currently the treasurer of the 1 st defendant. The witness posited that he became the treasurer on the 26.11.2024. Besides, the witness conceded that the plaintiff was their tenant. Page 13 of 31

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54.In addition, it was the testimony of the witness that though the plaintiff was a tenant of the 1st defendant, the plaintiff was not carrying out any business in the premises. It was averred that the premises were closed. 55.It was the further testimony of the witness that there was a lease agreement entered into with the plaintiff on the 30.10.2016. However, the witness averred that he did not know whether the 1st defendant entered into and executed another lease agreement with the plaintiff. Furthermore, the witness testified that the plaintiff owed the society the sum of Kshs. 3,500,000/= only, in rent arrears. Besides, the witness averred that the 1st defendant wrote several letters to the plaintiff seeking payment of rent arrears. 56.It was the further testimony of the witness, that despite the various demands, the plaintiff did not pay the rent arrears. In particular, it was averred that the plaintiff remained indebted to the 1 st defendant, on account of rent arrears. 57.Upon being referred to the letter dated 19.04.2021, the witness averred that same is not familiar with the said letter. Besides, the witness testified that the letter under reference did not form part of the records of the 1 st defendant. Moreover, the witness clarified that the said letter did not come from the 1st defendant. 58.Regarding the goods belonging to the plaintiff, the witness averred that no goods of the plaintiff, were taken or seized. In any event, the witness Page 14 of 31

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posited that if any goods belonging to the plaintiff, were ever taken, then the plaintiff ought to have stated as much before the lower court as Isiolo. In addition, the witness asserted that the plaintiff did not have any goods inside the premises. 59.Upon being shown the agreement dated the 30.10.2016, the witness confirmed that the lease agreements indicate that same was executed by the officials of the society. It was the further testimony of the witness that the property has since been leased out /rented to another person. The witness clarified that the lease agreement with the current tenant is dated the 16.05.2022. 60.While still under cross examination, the witness testified that, when same entered into the current lease agreement, the premises were empty. Moreover, the witness denied that the plaintiff had deposited any building materials on the site. 61.With the foregoing testimony, the 1st defendant’s case was closed. 62.I had indicated that the 2nd defendant neither entered appearance nor filed any statement of defence. In this regard, the 2 nd defendant’s case was closed, albeit without any evidence being tendered. 63.Upon the conclusion of the hearing, the advocate[s] for the parties sought directions as pertains to the filing and exchange of written submissions. To this end, the court ventured forward and issued directions. The directions were: The plaintiff shall file and serve written submissions Page 15 of 31

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within 14 days; the defendants shall file and serve written submissions within 14 days from the date of service; and the plaintiff shall be at liberty to file and serve rejoinder submissions [if any] within 7 days from the date of service. 64.The Plaintiff filed written submissions dated the 16.07.2026. The plaintiff has highlighted four key issues for consideration. The issues are: Whether the plaintiff had a valid lease and lawful possession of the suit premises; whether the defendants unlawful interfered with the plaintiff’s tenancy and quiet enjoyment; whether the distress/seizure of the plaintiff’s goods and eviction complained of were lawful; and whether the defendant acted in disregard of existing court orders or otherwise. 65.The 1st defendant, filed written submissions dated the 23.07.2026 and wherein same has highlighted two key issues. The issues are: Whether the plaintiff has proved his case to the requisite standard or otherwise; and whether the plaintiff is entitled to the reliefs sought. 66.Having reviewed the pleadings filed by the parties; and upon taking into account the evidence on record [both oral and documentary]; and upon considering the written filed by/on behalf of the parties, three [3] key issues crystalize for determination. The issues are: Whether the plaintiff had a valid and lawful lease agreement with the 1st defendant; whether the distress, which was levied by the defendants was lawful or otherwise; and whether the goods that were distrained were ever returned; and what reliefs [if any] ought to be granted. Page 16 of 31

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67.Regarding the first issue, the plaintiff testified before the court and averred that same entered into a lease agreement with the 1st defendant. The plaintiff averred that the 1st lease agreement was entered into on the 08.06.2015. The entry into the said lease, was not in dispute. Moreover, the 1st defendant tendered and produced the said lease as exhibit D1. 68.It was the further testimony of the plaintiff that the lease agreement dated the 08.06.2015 [ exhibit D1] was varied vide a subsequent lease agreement entered into on the 30.10.2016. The entry into and execution of the said lease agreement was confirmed by the PW2. For good measure, PW2 posited that same was one of the officials of the society [1st defendant] who executed the lease agreement. 69.Additionally, PW3, who was the chairperson of the society at the time of the execution of the lease agreement dated the 30.10.2016, confirmed the execution of the lease. In particular, the witness authenticated that he was one of the signatories who executed the said lease agreement. 70.Other than the evidence of the plaintiff and his witnesses, DW1 [Abdulahi Dika] confirmed that there was a lease agreement dated the 30.10.2016, which was entered into between the plaintiff and the 1 st defendant. Moreover, DW1 is on record confirming that the plaintiff was the 1st defendant’s tenant. 71.On the basis of the evidence on record, and bearing in mind the doctrine of the sanctity of contract, I am convinced that the plaintiff has proven Page 17 of 31

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that there was in existence a lawful and valid lease agreement between himself and the 1st defendant. The terms of the lease of the lease agreement are explicit. The 1st defendant cannot be allowed to renege on the said lease agreement. Simply put, the 1 st defendant is bound by the terms of the lease agreement including the stipulated duration, namely; 20 years wef 30.10.2016. 72.In the case of Centurion Engineers & Builders Limited v Kenya Bureau of Standards [2023] KECA 1289 (KLR), the court of appeal reiterated the importance of the doctrine of the sanctity of contract. 73.The court stated thus: “As this Court has severally stated, and now a longstanding principle of law, that parties to contract are bound by the terms and conditions thereof, and that it is not the business of courts to rewrite such contracts. In National Bank of Kenya Limited v Pipe Plastic Samkolit (K) Ltd [2002] 2 EA 503 [2011] eKLR at 507, this Court stated:“A court of law cannot rewrite a contract between parties. The parties are bound by the terms of their contract, unless coercion, fraud or undue influence are pleaded or proved.” See also Pius Kimaiyo Langat v Co-operative Bank of Kenya Limited [2017] eKLR.” 74.With respect to the second issue, namely; whether the defendant levied the distress against the plaintiff and whether the distress was lawful or otherwise. I wish to point out that the issue of the distress that was levied by the defendants herein against the plaintiff, was the subject of appeal before the High Court at Meru and wherein the learned judge found and Page 18 of 31

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held that impugned distress was illegal and unlawful. In addition, the learned judge directed that the 1st defendant and his nominated auctioneer were to return the distrained goods to the plaintiff. However, there is no gainsaying that the defendants herein failed to return or restore the goods. 75.I am also alive to the fact that owning to the failure by 1 st defendant and its nominated auctioneer, to return/restore the goods, the former officials of the 1st defendant [the ones who were in office at the material point in time] were cited and punished for contempt. In particular, the said officials were sentenced to a term in jail. 76.On the other hand, it is also common ground that the 1 st defendant herein [The Society] was found guilty of contempt and an order of sequestration was issued, against same. 77. This fact is confirmed vide the submissions of learned counsel for the 1 st defendant, wherein same has stated thus: “The former officials of the 1 st defendants were jailed for six months and there was sequestration order of Kshs. 900,000/= only against the 1st defendant. Allowing the current suit will amount to double jeopardy against the 1st defendant” 78.There is no gainsaying that the foundation of the contempt and the punishment meted against the 1st defendant was the failure to return/restore the distrained goods. Even though an order of sequestration was issued against the 1st defendant, the said order did not constitute compensation to the plaintiff. In fact, the plaintiff remains deprived of the goods, which were found to have been illegally distrained upon. Page 19 of 31

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79.The suit beforehand, relates to and concerns inter alia, compensation for the value of the goods. The question of reliefs, if any, to be granted, shall be dealt with shortly. However, it is my finding and holding that the distress which was mounted against the plaintiff was unlawful and illegal. For good measure, the finding of the High Court in respect of the appeal that challenged the orders issued vide the miscellaneous application, remains in situ. 80.Without belaboring the point, my answer to issue number two is threefold. Firstly, there is no dispute that the 1 st defendant instructed the 2nd defendant [nominee auctioneer] to levy distress. 81.Secondly, the distress which was levied was the subject of the proceedings before the High Court and a finding was returned, to the effect that the distress was illegal and unlawful. That remains the position to date. 82.Thirdly, the goods which were distrained and which were later ordered to be restored to the plaintiff, were never restored. Suffice it to state that the non-compliance with the orders directing return of the goods, was the basis for the citation; punishment and the order for sequestration. 83.The final issue for determination relates to the appropriate reliefs [if any] to be granted. The Plaintiff has sought a plethora of relief[s] at the foot of the Plaint. The details of the relief[s] sought, were reproduced at the onset of this Judgment. It is therefore not apposite to rehash same. Page 20 of 31

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84.Nevertheless, and given the diversity of the reliefs sought, it important to discuss the same sequentially, and to discern, which of the relief[s], if at all, is meritorious, or otherwise. 85. Firstly, the Plaintiff sought an order of Mandatory Injunction, directing the First Defendant to reinstate same [ Plaintiff] into the demised premised in accordance with the terms of the Lease Agreement dated the 30/10/2016, which provided for the term of 20 years, wef the date thereof. In addition, the Plaintiff has also sought an order of Permanent Injunction to bar the Defendants from interfering with his occupation, possession and use of the premise[s], subject to reinstatement. 86.What I hear the Plaintiff to be seeking is that the same is entitled to partake of and benefit from the terms of the Lease agreement. Nevertheless, the Plaintiff himself tendered evidence that the premises, which had been demised unto to him and which formed the crux of the tenancy, were brought down; and subsequently, re-built by the 1st Defendant. In this regard, the obtaining position is that the premises, which were demised to and in favour of the Plaintiff do not exist, in the terms, in which same were demised. The status thereof changed, or were substantially altered. 87.Most importantly, there is evidence that the suit premises, which are the ones demised to the Plaintiff, and which forms the basis of the suit, were thereafter leased to a Third Party, who is not one of the Parties herein. For good measure, the Plaintiff himself tendered a copy of the Lease agreement between the First Defendant and the current Tenant as one of Page 21 of 31

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the Exhibits. The Lease agreement is dated the 16/05/2022. [See Exhibit P 23]. 88.In addition, the Plaintiff clarified the position thus; ‘The document Number 6 at the foot of the List dated the 09/06/2026, is actually the Tenancy agreement dated the 16/05/2022, between the First Defendant and the Third Party’’. 89.Furthermore, the position that the suit premises are currently demised to and in favour of a Third party, was confirmed by the DW1, during his cross Examination by Learned Counsel for the Plaintiff. 90.The Witness stated thus: ‘The house has been rented out to another person. I do confirm that we entered into an agreement with another Tenant. The current agreement is dated the 16/05/2022. The agreement was drawn by an advocate.’’ 91.What is apparent is that the premises are not available and hence the prayer for mandatory injunction sought cannot issue. Moreover, there is no gainsaying that the issuance of such an order, if at all, shall prejudice the rights of another person, who is not a party to the subject matter. I am not prepared to grant the Order of Mandatory Injunction. 92.Further, and in any event, I wish to add that the Plaintiff has not established the threshold for the grant of such an order. Suffice it to state that such an order can only issue upon proof of exceptional circumstance[s], which do not exist, in the matter beforehand. Page 22 of 31

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93.In the case of Kenya Breweries Limited & another v Washington O. Okeyo [2002] KECA 284 (KLR), the Court of Appeal re-affirmed the obtaining Legal position underpinning the grant of an order of Mandatory Injunction. The Court stated thus: “The test whether to grant a mandatory injunction or not is correctly stated in Vol. 24 Halsbury’s Laws of England 4th Edn. para 948 which reads: “A mandatory injunction can be granted on an interlocutory application as well as at the heari ng, but, in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the court thinks it ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied, or if the defendant attempted to steal a march on the plaintiff …….. a mandatory injunction will be granted on an interlocutory application”. Also in Locabail International Finance Ltd. V. Agro export and others [1986] 1 ALL ER 901 at pg. 901 it was stated:- “A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances, and then only in clear cases either where the court thought that the matter ought to be decided at once or where the injunction wa s directed at a simple and summary act which could be easily remedied or where the defendant had attempted to steal a march on the plaintiff. Moreover, before granting a mandatory interlocutory injunction the court had to feel a high degree of assurance t hat at the trial it would appear that the injunction had rightly been granted, that being a different and higher standard than was required for a prohibitory injunction.” Page 23 of 31

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94. In short, the prayer for Mandatory Injunction or reinstatement into premises, does not lie. The same is hereby declined. 95. The second relief, which has been sought by the Plaintiff is the return of the goods, which were seized/ confiscated by the Defendants, or payments of the value thereof. I beg to state that the question of return of the goods, was addressed by the High Court vide an appeal, and the Court directed restitution/ restoration of the goods. Moreover, the question of restoration of the goods, was the basis of the Contempt proceeding[s] against the First Defendant; and its previous officials. Suffice it to state that the failure to return the goods, led to the citation; punishment; and eventual sentencing of the First Defendant and its officials. 96.Moreover, I wish to point out that the goods in question, were seized more than Five [5] years ago, and no one, except the Defendants, know what happened to same. In this regard, it will be an exercise in vain to decree the restoration of the goods, which very well, may have been broken/ interfered with. 97.In lieu of the restoration of the goods, the Plaintiff has sought recompense based on the value of the goods. The Plaintiff tendered and produced assorted receipts showing the values of the goods that were illegally distrained and seized. In addition, the Plaintiff had pleaded the value at the foot of paragraph 8 of the Plaintiff. The values and the receipt[s], which were tendered in evidence, were not impeached. In this regard, I am persuaded to and do hereby decree payment of the sum of Kes 1,111,000 Only, on account of the good[s], that were illegally seized. Page 24 of 31

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98.The next relief, which was sought by the Plaintiff is the sum of Kes 12, 000, 000 Only, on account of Loss of business. The claim herein, has been sought to cover the duration for which the Plaintiff, would have [sic] been in the premises. 99.Be that as it may, it is apparent that the Plaintiff has not supplied the particulars of the claim. It is common ground that the claim for special/ Liquidated damage[s], must not only be pleaded, but must be sufficiently particularized. It is only upon the pleading and supplying the particulars, that the Claimant can procced to tender evidence towards proving the claim. [ See the holding in the case of Capital Fish Kenya Limited versus Kenya Power and Lighting Limited [2016] KECA 56; and Hahn versus Singh [1985] KLR,716]. 100. Additionally, it is important to underscore that the Plaintiff was obliged to tender evidence to show that same was carrying out some business in the premises, prior to the impugned distress. Be that as it may, the totality of the evidence on record shows that the Plaintiff, was not carrying any business in the premises. 101. PW2 [ Hassan Mohammed Maalim] testified before the Court and clarified that there was not hotel business that was being carried out in the premises between the year 2014 upto 2021. 102. This is what the Witness stated: ‘The Public Health indicated that the Plaintiff could not undertake the Hotel business in the House that was Page 25 of 31

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dilapidated. There was no Hotel business that was being undertaken by the Plaintiff on the premises between the year 2014 to date’’. 103. PW3 [ Mohammed Jilo] also confirmed that there was no business that was being undertaken in the premises by the Plaintiff. The Witness stated thus: ‘ I also confirm that there were Hotel Items/ goods that were in the Store. The items, were in the Kitchen Store. The goods were in the Store and the Store was locked. I do confirm that we entered into office and the store was locked. The store was locked by the previous officials, who were there. I did not find any Hotel business in the premises.’’ 104. It is equally important to point out that the Plaintiff did not tender or produce any document[s], for example; the Business License, permits, Bank Deposit slips, KRA returns, etc, to show that same was engaged in any business. The absence of such documents, also negate the Claim for Loss of Business. 105. Next is the Claim for Mesne Profits. The Plaintiff has claimed payments of Mesne profits. However, I wish to point out that Mesne profits are akin to Special Damages, and hence same must not only, be pleaded but must be particularized. It is only then that a Party/ Claimant, the Plaintiff not excepted, can proceed to tender evidence and prove the claim. In the absence of the requisite pleadings, the claim for Mesne Profits does not lie. In this regard, there is no gainsaying that the claim has been mounted in vacuum. [ See the holding of the Court in the case of Karanja Mbugua versus Marybin Holdings Limited [2014] eklr; and Page 26 of 31

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Christine Nyanchama Oanda versus The Catholic Diocese of Homa Bay Registered Trustees [2020] KECA 536]. 106. Furthermore, the Plaintiff has sought aggravated; Exemplary; and punitive Damages. To begin with, the said damages are inter-related and hence same cannot be issued simultaneously. The issuance of all the said damages, if at all, shall be tantamount to unjust enrichment. 107. In addition, I wish to point out that the aggravated or Exemplary damages can and often do issue, albeit upon proof of certain circumstances. The circumstances that must be proved before such an award can be issued/ made, were highlighted by the Court of appeal in the case of Municipal Council of Eldoret versus Titus Gatitu Njau [2021] eKLR. 108. Is the Plaintiff entitled to Exemplary Damages? I wish to state that the First Defendant herein proceeded to and obtained Ex-parte Orders before the Chief Magistrates’ Court at Isiolo, on the basis of misrepresentation; deceit; and dishonesty. That much was confirmed by the decision of the High Court, which handled the resultant appeal and which quashed the impugned Ex-parte Orders. 109. Additionally, it is also important to point out that that distress that birthed the subject Claim was undertaken in brazen disregard of the Orders of the Business Premises Rent Tribunal [BPRT], which barred and restrained distress; or any interference with the Plaintiff’s tenancy. Page 27 of 31

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110. In the premises, there is no gainsaying that the actions by the Defendants, either Jointly, or severally, were cynical, oppressive, whimsical and arbitrary. Such conduct warrants and constitutes a basis for an award of Exemplary Damages. 111. Having come to the conclusion that the Plaintiff is entitled to Exemplary Damages, and bearing in mind that the impugned Distress was illegal/ unlawful, the question that remains relates to the Quantum of Damages awardable. 112. I start by stating that the award of Exemplary damages is at large. The same is also based on the exercise of the discretion by the Court. Nevertheless, the Discretion must be exercised judiciously and reasonably, taking into account the obtaining circumstance[s]. 113. Taking into account the circumstances of this case; and coupled with the lapse of time; and being mindful of the inflationary tendencies, I am disposed to and do hereby award Exemplary Damages in the sum of Kes. 5,000,000 Only. 114. I wish to add that I am guided by the principles that were illuminated in the case of Municipal Council of Eldoret v Titus Gatitu Njau [2020] KECA 782 (KLR). 115. The Court of Appeal stated thus: “24. The appellant has also termed the amount of damages awarded to the respondent as excessive in the circumstances of Page 28 of 31

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this case. As observed in Obongo & Another v Municipal Council of Kisumu [1971] E.A 91, the court when awarding damages at large is making a general award and it may take into account factors such as malice or arrogance on the part of the defendant which is regarded as increasing the injury suffered by the plaintiff as for example by causing him humiliation or distress. 25. The respondent prayed for exemplary damages. As stated by this Court in Godfrey Julius Ndumba Mbogori & another v Nairobi City County [2018] eKLR: “Exemplary damages are essentially different from ordinary damages. The object of damages in the usual sense of the term is to compensate. The object of exemplary damages is to punish and deter. We are guided by the case of Rookes v Barnard [1964] AC 1129 where Lord Devlin set out the categories of cases in which exemplary damages may be awarded which are: i) In cases of oppressive, arbitrary or unconstitutional action by the servants of the government, ii) cases in which the defendant’s conduct has been calculated to make a profit for himself which may well exceed the compensation payable to the plaintiff and iii) where exemplary damages are expressly authorized by statute”. Conclusion: 116. The plaintiff herein was obligated to tender and produce before the Court cogent and plausible evidence to prove his Claims. In the course of the analysis, I have found and held that the Plaintiff has indeed proven assorted aspects of his claim. Page 29 of 31

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117. Flowing from the finding[s] of the Court, I come to the Conclusion that the Plaintiff has discharged the burden of proof and thus same is entitled to succeed Final Orders: 118. In the end, the Final orders that commend themselves to the Court are: [a] Judgment be and is hereby entered in favour of the Plaintiff as against the Defendants jointly and/ severally as hereunder; i. Payments of Kes. 1,111, 000 only on account of the goods that were illegally distrained/ seized by the Defendants. ii. Exemplary Damages of Kes. 5,000,000 Only. iii. Interests at Court rates [14%] per annum in respect of the Claim for the value of the goods wef 2021. iv. Interest in respect of Exemplary Damages shall be from the Date of Judgment until payment in Full. v. Costs of the Suit shall be borne by the Defendants. vi. The Costs shall be agreed upon; and in default, the same shall be taxed in the conventional manner. vii. 119. Any other relief not expressly granted is Declined. It is so ordered. DATED, SIGNED AND DELIVERED AT ISIOLO ON THIS 17TH DAY OF SEPTEMBER, 2026 OGUTTU MBOYA; FCIArb; CPM [MTI-EA]. JUDGE. In the presence of: Court Assistant: Zakayo /Mukami Mr. Joel Mutuma for the Plaintiff Mr. Jarso for the 1st Defendant Page 30 of 31

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N/a for the 2nd Defendant Page 31 of 31

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