High Court 7461 of 2026

2. The 1st and 2nd Defendants are sued in their capacity as the owners and/or managers of the United Complex Building situated on the land known as LR No. 93/1246 off Mombasa Road in Nairobi (the subject premises) while the 3rd Defendant is sued in his capacity as an auctioneer. 3. The Plaintiff’s claim against the defendants arises from a lease agreement dated 25/05/2022 between the Plaintiff and the 1st and 2nd Defendants, who are the landlords the above subject premises. The Defendants had agreed to lease to the Plaintiff Shop No. 2 (the Shop) situated on the Ground Floor of the subject premises, for a term of six (6) years from 1/06/2022 to 31/05/2028 at monthly rent which varied from year to year as specifically demonstrated in the said lease document. 4. The Plaintiff claims that sometimes on or about 23/01/2024 the Defendants without lawful cause or justification, broke into the Plaintiff’s shop and carried away its goods, thereby causing the Plaintiff to suffer loss and damage totaling Kshs. 14,028,457/- broken down as follows: a) Stock and/or merchandise Kshs. 10,557,107/CIVIL CASE NO. E037 OF 2024 PAGE 2

page 2 of 36

b) Furniture and equipment Kshs. 809,500/c) Fittings removed and taken away Kshs. 2,000,000/d) Padlocks broken and/or destroyed Kshs. 24,800/e) 3 months’ deposit held by the 1 st Defendant Kshs. 637,050/5. The Plaintiff has accused the defendants of negligence as specifically set out under paragraph 10 of the plaint and claimed to have been up to date in rent payments thereby and accused unlawfully as the defendants shown in the for acting particulars illegally listed and under paragraph 11 of the plaint. Defence and Counterclaim 6. The defendants have denied the allegations made by the Plaint in their defence. They have raised a counterclaim dated 15/03/2024, accusing the Plaintiff of failure to pay rent and locking the Shop without notice to them. They have claimed that they had no alternative but to break into the CIVIL CASE NO. E037 OF 2024 PAGE 3

page 3 of 36

Shop to gain access. They have claimed that the accumulated arrears in rent and related charges amount to Kshs. 1,731,753/-. 7. The Defendants have further pleaded that the break-in exercise was lawfully and professionally undertaken pursuant to a court order. The defendants have denied any allegations of negligence and unlawful/illegal acts, as well as the particulars of loss allegedly suffered by the Plaintiff and attributed to the defendants. 8. In their counterclaim, the defendants have sought judgment against the Plaintiff, for a declaration that the Plaintiff breached the lease agreement; general damages for breach of contract and a sum of Kshs. 2,168,803/- being the sum allegedly owed by the Plaintiff. 9. The defendants have pleaded that upon exiting the Shop, the Plaintiff left major destruction thereon necessitating the 1st and 2nd Defendants to incur expenses in the sum of Kshs. 1,731,753/- made up of the following: a) Restoration and renovation costs Kshs. 1,315,510/- CIVIL CASE NO. E037 OF 2024 PAGE 4

page 4 of 36

b) Unpaid rent-January Invoice No. 566 Kshs. 212,350/c) Interest on unpaid rent Invoice No. 566 Kshs. 45,655/d) Invoice No. 988 unpaid parking Kshs. 15,157/e) Returned cheques Nos. 2648 & 1222 Kshs. 11,000/f) KPLC bills & penalties Kshs. 12,081/g) Auctioneer charges Kshs. 120,000/10. It is the defendants’ claim that that the Plaintiff breached the terms of the lease agreement by abandoning the subject premises prematurely and without notice, and for failing to pay a sum of Kshs. 1,274,100/-, in contravention of Clause 6.21 of the lease agreement which stipulated that where a tenant elected to terminate the agreement prior to the official fixed term prescribed therein, a total of six (6) months’ rent in advance would be remitted to the landlord. CIVIL CASE NO. E037 OF 2024 PAGE 5

page 5 of 36

11. The Plaintiff’s reply to defence and a defence to the counterclaim dated 2/04/2024, the Plaintiff has denied the allegations made in the counterclaim and joined issue with the defence. In particular, the Plaintiff has denied owing the Defendants the sums sought in the counterclaim or at all. The evidence 12. At the hearing of the suit, the Plaintiff relied on the testimonies of two (2) witnesses: Mansukh Jadva Murji and Kenneth Muchiri. The defendants relied on the evidence of the 2nd Defendant. 13. Mr. Mansukh Jadva Murji testified as PW1. He adopted his witness statement dated 19/02/2024 (P. Exhibit 1). He also produced the Plaintiff’s list and bundle of documents dated 22/02/2024 and its further list and bundle of documents dated 24/03/2025 as P. Exhibits 2 and 3 respectively. 14. In cross-examination, the witness testified that he executed the lease agreement in July, 2022 and that the agreed monthly rent was approximately Kshs. 195,000/exclusive of utilities such as water, electricity and parking fees but that the rent would increase over time; that he relocated from Kenya on 25/12/2023 by which time he was CIVIL CASE NO. E037 OF 2024 PAGE 6

page 6 of 36

up to date on his rent payments; that between 24/12/2023 and 9/01/2024 the Shop was locked and that pursuant to the lease agreement, the next rent payment was before 5/01/2024 but that by 2/01/2024 rent had had not been paid. 15. He testified that at the time, the Plaintiff was undergoing liquidation and was therefore unable to pay rent; that the Plaintiff was in arrears of rent for January, 2024 and that the two (2) cheques which had been issued in the said month were returned unpaid by 9/01/2024. 16. He testified, further, that he was informed of the break-in by his lawyer; that the Defendants had obtained a court order dated 10/01/2024 permitting it to break into the Shop; that he had no knowledge that copies of the court order and related documents had been fixed on the door of the Shop premises; that the lease agreement stipulated that notice of termination ought to be given; that by the time the notice was given by his lawyer, the court order allowing the defendants to access the Shop had been issued; that it was a term of the lease agreement that six (6) months’ rent be paid in the event of termination; that this was not done and CIVIL CASE NO. E037 OF 2024 PAGE 7

page 7 of 36

that there was a deposit of an equivalent of three (3)months’ rent. 17. It is the evidence of PW1 that although he did not undertake improvements on the subject premises, he put up a Mezzanine Floor made up of structural steel, whose construction was supervised by the 1st and 2nd Defendants and that if the premises is repossessed by the Defendants herein, the floor structure would have to be taken out, thereby causing the Plaintiff to incur costs. 18. The witness stated, in re-examination, that as at December, 2023 he had no arrears in rent and reiterated his earlier evidence that he had paid a further sum of Kshs. 635,500/- being a deposit equivalent to three (3)-months’ rent, vide a cheque dated 6/12/2023. 19. Kenneth Muchiri testified as PW2. He told the court that he is a Senior Auditor by profession, working at Kimotho K. & Associates. He adopted his witness statement dated 5/11/2025 as his evidence-in-chief and produce an audit report for the year ending 31/12/2023 prepared by himself, as P. Exhibit 3. CIVIL CASE NO. E037 OF 2024 PAGE 8

page 8 of 36

20. In cross-examination, the witness stated that he visited the Shop on 21/12/2023 pursuant to the instructions of the Plaintiff, with the aim of certifying whether the stock or goods therein were in order; that upon doing so, he compiled the report indicating the stock value and that nevertheless, the report does not contain the list of stock certified. 21. The witness further stated that he proceeded to prepare the report in April, 2024 but that the same relates to the year ending 31/12/2023. He admitted that page 2 of the report is unsigned. 22. During re-examination, the witness stated that the report was not required to be signed by an auditor and that reports of such nature follow a standardized format; that pages 4 and 6 of the said report bears his signature, but that page 6 thereof ought to have equally signed by the directors of the Plaintiff. 23. The 2nd Defendant (DW1) adopted his witness statement dated 19/07/2024 and the Defendants’ list and bundle of documents of like date, as D. Exhibits 1 and 2 respectively. CIVIL CASE NO. E037 OF 2024 PAGE 9

page 9 of 36

He testified that he is the Managing Director of the United Complex Building situated on the subject premises. 24. During cross-examination, the 2nd Defendant confirmed the existence of the lease agreement between the defendants and the Plaintiff and that the Plaintiff paid rent for three (3) months at the onset; that the lease agreement permitted the Defendants to apply the deposit sum as rent in the event of non-payment of subsequent rent and that this was done, followed by a demand for the remaining outstanding rent sum. 25. He testified that the Defendants subsequently levied distress for the December, 2023 and January, 2024 rent arrears as well as outstanding parking fees which remained unsettled in December 2023. He however stated that there was no outstanding rent as at 6/12/2023 but that the parking fees remained unpaid as at the said date; that the proclamation took place on 15/12/2023, although the cheque issued by the Plaintiff had cleared on 8/12/2023 and that the unpaid rent was for January, 2024. 26. The 2nd Defendant testified that he did not personally instruct the 3rd Defendant to obtain a court order to break CIVIL CASE NO. E037 OF 2024 PAGE 10

page 10 of 36

into the Shop and proclaim the Plaintiff’s goods; rather, it is the 1st and 2nd Defendants’ advocates who handled the matter and that the 3rd Defendant accessed the Shop premises in January, 2024. He denied knowledge as to the manner in which the Plaintiff’s goods were carried out or sold and that he had no knowledge that PW1 had left the country. 27. In re-examination, he testified that as per the lease agreement, rent was to be paid on a quarterly basis; that rent of Kshs. 546,840/- was due on 1/12/2023 excluding service charge; that by the time he instructed his advocates to take over the matter, the rents for December, 2023 and January, 2024 were outstanding and that as at by 6/12/2023 a sum of Kshs. 212,350/- was due and owing. 28. The 2nd Defendant stated that no goods belonging to the Plaintiff were stolen and that at the time of breaking in, a sum of Kshs. 15,000/- was unpaid, in respect of parking fees. Submissions CIVIL CASE NO. E037 OF 2024 PAGE 11

page 11 of 36

29. At the close of the trial, parties filed submissions. In his submissions 12/01/2026, the Plaintiff submitted on the following issues: (i) Whether the Plaintiff was in rent arrears? (ii) Whether the Defendants’ breaking into the Plaintiff’s shop was justified and lawful? (iii) Whether the Plaintiff company suffered the loss and/or damages as claimed? (iv) Who terminated the lease agreement? (v) Who is entitled to the prayers sought? 30. On whether the Plaintiff was in rent arrears, the Plaintiff submitted that the unpaid rent purportedly sought in the counterclaim is for the month of December, 2023. That however, the Plaintiff has tendered evidence vide Cheque No. 002657 to demonstrate that the rent for Kshs. 212,350/for the said month was paid, as the said cheque was cleared on 8/12/2023. He submitted that the letter dated 6/12/2023 instructing the 3rd Defendant to levy distress for rent, accompanied by a proclamation letter dated 15/12/2023, were in respect of non-existent rent arrears. 31. The Plaintiff has submitted that the court order issued in Milimani Chief Magistrate’s Miscellaneous Application No. CIVIL CASE NO. E037 OF 2024 PAGE 12

page 12 of 36

E022 of 2024 was obtained through misrepresentation and non-disclosure of material facts as there was no outstanding rent arrears for the month of December, 2023 as claimed by the Defendants and that the Defendants did not consider that they were holding three (3)-months’ deposit as security, which would have been applied in offsetting any arrears in rent, in any event. 32. On whether the breaking was justified and lawful, the Plaintiff has submitted that the Defendants’ action of levying distress for rent was illegal under Sections 4 and 16 of the Distress for Rent Act, Cap. 293 Laws of Kenya. The Plaintiff has cited the case of M/S Gusii Mwalimu Investment Co. Ltd & 2 others v M/S Mwalimu Hotel Kisii Ltd [1996] KECA 69 (KLR) where the Court of Appeal appreciated that “to obtain possession by levying illegal distress is per se wrong. It is also wrong for a court bailiff (in this instance it was mischievous) to cart away the tenant's goods under the guise of such distress.” 33. On whether the Plaintiff suffered and loss and damage, it is the Plaintiff’s submission that there is evidence on record to indicate the loss incurred as a result of the illegal acts on CIVIL CASE NO. E037 OF 2024 PAGE 13

page 13 of 36

the part of the Defendants; that the audit report which was tendered in evidence, places the value of the stock carted away at Kshs. 10,577,107/- while the furniture and equipment taken away are valued at Kshs. 809,500/-; that the goods which were carried away by the Defendants are itemized in the Plaintiff’s stock list dated 24/12/2023 and that the evidence tendered by the Plaintiff has not been controverted. 34. It is the Plaintiff’s submission that the Defendants ought to be called to account for the loss resulting from the illegal carrying and disposal of its goods from the Shop. He relied on the case of Ronald Nguru Gathara & 2 others v Cliff Mbala [2015] KEHC 6519 (KLR) to support his argument on the quantum of damages. In that case the High Court sitting on appeal, dismissed the appeal and upheld an award of Kshs. 400,000/- on general damages, made to a plaintiff on a claim for illegal distress for rent. The Plaintiff also cited the decision in Nthaka Ltd v National Social Security Fund [2006] KEHC 2257 (KLR) in which the court awarded general damages to the tune of Kshs. 250,000/- for unlawful eviction and the decision in Lucy Njeri Ngunjiri CIVIL CASE NO. E037 OF 2024 PAGE 14

page 14 of 36

& 6 others v Anthony Kimeu & 3 others [2018] KEELC 4463 (KLR) where an award of Kshs. 500,000/- was made on general damages, similarly for unlawful eviction. 35. On who terminated the lease, the Plaintiff submitted that it is the Defendants who terminated the lease and not the Plaintiff; that the lease agreement terminated on 31/01/2024 upon the Defendants breaking into the Shop and therefore the lease cannot be said to have terminated as a result of any rent arrears. 36. Finally, the Plaintiff has urged that it is him who is entitled to the prayers sought in the Plaint and not the Defendants in their Counterclaim which Counterclaim ought to be dismissed with costs to the Plaintiff. 37. In their submissions dated 20.01.2026, the Defendants have argued that it has not been proved that at the time of levying distress for rent, all the rent payable had been settled by the Plaintiff, in order to render such distress illegal in the manner alleged. They have argued that while the Plaintiff had deposited a cheque for Kshs. 212,350/- on 8/12/2023, it still had outstanding rent arrears for the remaining quarter, in contravention of Clause 4.1, 4.2 and CIVIL CASE NO. E037 OF 2024 PAGE 15

page 15 of 36

5.1.1 of the lease agreement which stipulate that rent would be payable on a quarterly basis and that the Plaintiff was well aware that it was in arrears of rent, as seen in the various correspondences between the parties herein and tendered as part of the Defendants’ exhibits. 38. The Defendants have submitted that the above position is equally seen in the Plaintiff’s action of issuing a cheque dated 6/02/2024 for the sum of Kshs. 212,350/- which was dishonored and therefore returned unpaid; that following issuance of a proclamation notice on 15/12/2023, the Plaintiff denied them access to the Shop premises thereby forcing them to obtain break-in orders from the court and that even after the goods were carted away from the Shop, the Plaintiff did not challenge the levying process. The Defendants have maintained that the levying process was lawfully conducted. 39. On the subject of damages sought, it is the Defendants’ submission that in order for the Plaintiff to succeed in its claim for special damages for alleged loss suffered, it would be required to specifically plead and strictly prove the same. The Defendants have relied on the Court of Appeal decisions CIVIL CASE NO. E037 OF 2024 PAGE 16

page 16 of 36

in the case of Capital Fish Kenya Limited v The Kenya Power & Lighting Company Limited [2016] KECA 56 (KLR) and Provincial Insurance Co. EA Ltd v Mordekai Mwanga Nandwa, KSM CACA 179 of 1995 (UR), among others, to support that point and submitted that the Plaintiff has not tendered any receipts or other relevant documentation to support the sums sought on special damages and therefore the Plaintiff is not deserving of any of the sums sought in its claim. 40. In respect of the Counterclaim, it is the Defendants’ submission that the same remains uncontroverted and that moreover, the Defendants have brought material to support their claim for renovation and related works undertaken on the subject premises, following termination of the lease agreement. 41. It is similarly the Defendants’ submission that pursuant to the terms of the lease agreement, the Plaintiff was required to pay an equivalent of six (6)-months’ rent in advance upon termination, amounting to Kshs. 1,274,100/- which it refused and/or neglected to settle, thus constituting a breach of the agreement and that in the circumstances, the CIVIL CASE NO. E037 OF 2024 PAGE 17

page 17 of 36

1st and 2nd Defendants are entitled to the sums sought in the Counterclaim. 42. In its Further Submissions, the Plaintiff contended that pursuant to Clause 5.1.2.1.3 of the lease agreement, it had an option to pay the quarterly rent by way of 12 post-dated cheques for each month in advance, which is what it elected to do and that it had all along been paying rent in such manner which was accepted by the Defendants, without objection. The Plaintiff submitted that in the circumstances, the Defendants were only levying distress for rent for a sum of Kshs. 212,350/- which as earlier submitted, had already been settled and that contrary to the argument brought forward by the Defendants that the audited accounts cannot be relied upon as proof of special damages, accounts of such nature are acceptable and reliable evidence of financial loss suffered. Analysis and Determination 43. I have considered the pleadings of the parties, the evidence tendered at the trial, the rival submissions and the authorities relied on. I have noted the issues listed by the Plaintiff and the Defendants in their respective submissions. CIVIL CASE NO. E037 OF 2024 PAGE 18

page 18 of 36

44. Having considered the issues framed by the respective parties in their submissions, it is my considered view that the issues raised by the Plaintiff and the Defendants can be condensed into the following issues that require my determination: (i) Whether the Plaintiff was in rent arrears? (ii) Whether the Plaintiff is entitled to the reliefs sought in the plaint? (iii) Whether the Defendants have proved their Counterclaim against the Plaintiff? 45.In making my determination of the issues framed above, I have applied my mind to the legal principles on the burden of proof in civil disputes. Section 107(1) of the Evidence Act is clear that ‘whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.’ 46.The standard of proof is ‘on a balance of probabilities. This is what I will be looking for, whether the Plaintiff has met this threshold and whether the Defendants have met the same threshold in their counterclaim. CIVIL CASE NO. E037 OF 2024 PAGE 19

page 19 of 36

47.From what can be gathered from the pleadings and the evidence of the parties, it is not in dispute that the Plaintiff was at all material times a tenant occupying the Shop situated on the subject premises. This relationship between the parties was based on a lease agreement which was tendered in evidence by both parties as P. Exhibit 2 and D. Exhibit 2. It is also not in dispute that the 1st and 2nd Defendants were at all material times the registered owners of the subject premises, and the landlords under the lease agreement. What is disputed is the issue of rent arrears on the part of the Plaintiff and whether the distress of rent levied was lawful. 48. In his evidence, PW1 stated that during the term of the lease agreement, he locked the Shop between 24//2023 and 9/01/2024 and that at the time of locking the Shop, the rent for January, 2024 was due. He told the court that the Plaintiff was undergoing liquidation process at the time making it difficult for it to settle its rent payment for the month of January. He further stated that two (2) cheques which had been issued in the month of January 2024 were returned unpaid. CIVIL CASE NO. E037 OF 2024 PAGE 20

page 20 of 36

49.The PW1 further stated in his testimony that the Defendants had obtained a court order for the break-in and copies of the said order had been affixed on the door of the Shop premises; that at the time of giving notice of termination of the lease by the Plaintiff, the court order to break in has already been issued. 50.It is the evidence of PW1 that as a result of the break-in, the Plaintiff suffered loss and damage to the tune of Kshs. 14,028,457/-. He relied on the list of the stock; the list of furniture and equipment as at 24/12/2023 (both forming part of P. Exhibit 2), and the Annual Report and Financial Statements as at December 2023 (P. Exhibit 3) to support the evidence of loss suffered by the Plaintiff. 51.In sum, the Plaintiff’s case is that the Lease Agreement allowed it to opt for monthly payments of rent and that rent for December 2023 had been paid; that at the time of levying distress by the Defendants, there were no rent arrears and therefore the action by the Defendants to levy distress when no rent was due were illegal. CIVIL CASE NO. E037 OF 2024 PAGE 21

page 21 of 36

52.In contrast, the 2nd Defendant through DW1, testified that the distress for rent was levied on rent arrears for the month of December, 2023 and January, 2024. DW1 later stated that the arrears were only for the month of January, 2024; that he had no specific knowledge of the break-in as the same had been initiated by his advocates on record and that he had no knowledge that PW1, being a Director of the Plaintiff, had left the country at the time. 53.The Defendant has maintained that the act of breaking into the Shop and levying distress for rent was lawfully and regularly done, pursuant to a court order. 54.The primary applicable law on matters levying distress for rent is the Distress for Rent Act Cap. 293 Laws of Kenya. Section 3(1) thereof provides that where there are arrears in rent pursuant to a lease or contract, a remedy for distress for recovery of the said rent shall be available to the affected person. Section 4(1) further provides that: “Where any goods or chattels are distrained for rent reserved and due upon a grant, demise, lease or contract, and the tenant or owner of the goods or CIVIL CASE NO. E037 OF 2024 PAGE 22

page 22 of 36

chattels so distrained does not, within fourteen days after distress has been made, and notice thereof (stating the cause of the making of the distress) left on the premises charged with the rent distrained for, pay the rent together with the costs of the distress, or replevy them, with sufficient security to be given to the licensed auctioneer according to law, the person distraining may lawfully sell on the premises or remove and sell the goods and chattels so distrained for the best price which can be obtained for them, towards satisfaction of the rent for which they are distrained, and of the charges of the distress, removal and sale, handing over the surplus (if any) to the owner.” 55.From the foregoing, it is clear that a right to levy distress for rent exists, though the same ought to be exercised within the ambit of the law. 56.In that regard, in Halsbury’s Laws of England, 4th Edition, pages 543-551 referenced in the Plaintiff’s submissions, an illegal distress was defined as: CIVIL CASE NO. E037 OF 2024 PAGE 23

page 23 of 36

“one which is wrongful at the very outset, that is to say either where there is no right to distrain or where a wrongful act was committed at the beginning of the levy invalidating all subsequent proceedings....the following are instances of illegal distress: a distress where no rent is in arrears; a distress made after a valid tender of rent has been made; a distress made in an unlawful manner.” 57.The Court of Appeal in the case of M/S Gusii Mwalimu Investment Co. Ltd & 2 others v M/S Mwalimu Hotel Kisii Ltd [1996] KECA 69 (KLR) acknowledged the following on the subject of illegal distress for rent: “To obtain possession by levying illegal distress is per se wrong. It is also wrong for a court bailiff ... to cart away the tenant's goods under the guise of such distress.” 58.From my examination of the record, it is not controverted that the 1st and 2nd Defendants through their advocates, initially issued instructions to the 3 rd Defendant to levy distress for rent against the Plaintiff for outstanding rent CIVIL CASE NO. E037 OF 2024 PAGE 24

page 24 of 36

arrears of Kshs. 212,350/- plus the advocates’ legal fees of Kshs. 21,235/- and the 3rd Defendant’s auctioneer charges, vide a letter dated 6/12/2023 (constituting part of P. Exhibit 2). The 3rd Defendant subsequently issued a Proclamation Notice dated 15/12/2023 to that effect (item no. 4 of D. Exhibit 2). 59.Further, the record shows that during the intervening period, the Plaintiff issued the 1st and 2nd Defendants with a cheque for the sum of Kshs. 212,350/- being rent payment for the month of December, 2023. This cheque was cleared on 8/12/2023. The Defendants have however claimed that the cheque did not include payment for other related bills/utilities. They tendered evidence by way of an unpaid cheque dated 13/12/2023 for Kshs. 15,157/- as item 3 of D. Exhibit 2 which was issued by the Plaintiff and which seems to support the position stated above. 60.The record is also clear that the Plaintiff did not settle the rent for January, 2024 having issued an unpaid cheque dated 6/01/2024 for a sum of Kshs. 212,350/- (item 5 of D. Exhibit 2). This position was not controverted by the Plaintiff. CIVIL CASE NO. E037 OF 2024 PAGE 25

page 25 of 36

61.Upon my further examination of the pleadings and material on record, I observed that an email was sent to the Plaintiff on 9/01/2024 claiming rent arrears for January, 2024 and outstanding bills for December, 2023 (item 6 of D. Exhibit 2). There is nothing on record to indicate that the same elicited a response from the Plaintiff or that there was compliance, which would explain the step taken by the 3 rd Defendant in filing an application dated 10/01/2024 in Misc. Civil Application No. E022 of 2024 before the Chief Magistrate’s Court at Nairobi-Milimani Commercial Courts (forming part of P. Exhibit 2) seeking leave of the court to break into the Shop in order to levy distress for rent. The said application upon consideration, gave rise to a court order issued on 22/01/2024. 62.Having considered the evidence presented to the court, it is my considered view that it has been established that the Defendants levied distress for rent against the Plaintiff pursuant to the aforesaid court order. Further, it is evident that prior thereto, copies of the said court order and related documents had been affixed on the door to the Shop as was CIVIL CASE NO. E037 OF 2024 PAGE 26

page 26 of 36

stated by PW1, thereby sufficiently notifying the Plaintiff of the imminent levy for distress for rent. 63.There is evidence on record to show PW1 testimony that at the time of levying distress, he was not in the country and had locked the Shop. It was therefore not accessible to the Defendant. The Plaintiff admitted that it was in arrears of rent for the month of January, 2024. Whereas PW1 he testified that the Plaintiff issued a cheque dated 6/12/2023 for a sum of Kshs. 635,500/- being a deposit for three (3) months’ rent, no credible material was tendered to support this statement. 64.I am persuaded that the Plaintiff was in rent arrears at the time of levying distress and therefore, my conclusion of the determination of this issue is that the distress levied by the Defendants is a lawful distress. 65.On whether the Plaintiff suffered loss as a result of the break-in, I have considered the evidence adduced, specifically the list of stock, furniture and equipment tendered by the Plaintiff. I find that in the absence of any cogent supporting material, there was no sure way of CIVIL CASE NO. E037 OF 2024 PAGE 27

page 27 of 36

ascertaining that the items listed therein were situated in the Shop at the time of break-in or that the listed items formed part of the assets carted away. 66.In addition, it is my view that the Annual Report and Financial Statements as at December 2023 (P. Exhibit 3) does not necessarily offer assistance in supporting the claim for loss suffered as a result of the break-in exercise. I therefore find that the claim for loss suffered has likewise not been proved by way of any cogent material. 67.In view of all the foregoing circumstances therefore, I am not persuaded that the Plaintiff has proved that the manner in which the distress for rent was levied by the Defendants was illegal or unlawful. There is evidence to show the Plaintiff was in rent arrears for the month of January 2024. There is evidence to show that the Plaintiff was undergoing financial difficulties due to liquidation and was not able to pay rent, hence the dishonoured cheques. There is evidence to show that the Shop was closed and that the Defendants did not have access to it and that the Defendants or their agents broke into the shop following a court order. CIVIL CASE NO. E037 OF 2024 PAGE 28

page 28 of 36

68.Having found that the Plaintiff has failed to meet the threshold of proof on a balance of probabilities, it follows that the Plaintiff is not entitled to any of the reliefs sought in the plaint and therefore, the Plaintiff’s suit automatically fails. 69.Turning on the issue on whether the Defendants have proved their counterclaim against the Plaintiff, it is my understanding that the Defendants’ counterclaim is founded on a breach of contract. In his testimony, DW1 stated that the Plaintiff contravened the terms of the Lease Agreement as set out under Clauses 4.1, 4.2 and 5.1.1 that rent would be payable on a quarterly basis; and Clause 6.21 which stipulates that where a tenant elected to terminate the agreement prior to the official fixed term prescribed therein, a total of six (6) months’ rent in advance would be remitted to the landlord. 70. The Plaintiff denied contravening the above Clauses. Instead the Plaintiff holds the view that pursuant to Clause 5.1.2.1.3 of the lease agreement, it had an option of paying the quarterly rent by way of 12 post-dated cheques for each month in advance and that the Plaintiff had all along been CIVIL CASE NO. E037 OF 2024 PAGE 29

page 29 of 36

paying rent in such manner which was wholly accepted by the Defendants. 71.From my examination of the material on record and in particular the lease agreement tendered by the parties herein, I observed that Clauses 4.1, 4.2 and 5.1.1 stipulate that rent was to be payable on a quarterly basis from the 1 st day of June of the respective years, in advance. Suffice it to say that, Clause 5.1.2.1.3 stipulates that notwithstanding the above, the tenant (being the Plaintiff herein) had the option of making payment by issuing 12 post-dated cheques for each month in advance. 72.Going by the record, I noted that the Plaintiff tendered copies of statements of account as part of P. Exhibit 2 supporting the above position that it issued post-dated cheques on a monthly basis. There is nothing on the record to indicate that the 1st and 2nd Defendants objected to this manner of payment previously. I have therefore not come across anything to indicate a breach of contract in this regard. CIVIL CASE NO. E037 OF 2024 PAGE 30

page 30 of 36

73.Clause 6.21.1 on its part requires payment of six (6) months’ rent in advance for the remaining term, upon the tenant giving at least three (3) months’ notice of termination of the lease agreement. I have examined the record and noted that it is not disputed that the Plaintiff issued a notice of termination of the lease agreement vide a letter dated 31/01/2024 constituting part of P. Exhibit 2. The Plaintiff further tendered a letter of like date issued to the Defendants, indicating that it was undergoing liquidation and therefore wished to move out of the subject premises on or before 12/04/2024. The Plaintiff further requested that the 1st and 2nd Defendants hold on to the three (3) months’ rent paid at the onset of the lease agreement, as deposit. 74.From the foregoing, while it is evident that the Plaintiff gave the three (3) months’ advance notice of termination of the lease agreement, it did not demonstrate by way of any cogent material that it fulfilled its obligation by paying the six (6) months’ rent in advance as required under Clause 6.21.1. In the circumstances, I am persuaded that the Defendants have proved, on a balance of probabilities, CIVIL CASE NO. E037 OF 2024 PAGE 31

page 31 of 36

breach of contract on the part of the Plaintiff in respect of Clause 6.21.1. 75.On whether the Defendants are entitled to general damages for breach of contract, I am guided by Kenya Tourist Development Corporation v Sundowner Lodge Limited (2018) eKLR where the Court stated thus: “… as a general rule general damages are not recoverable in cases of alleged breach of contract and that has been the settled position of law in our jurisdiction, and with good reason. In DHARAMSHI vs. KARSAN [1974] EA 41, the former Court damages are of Appeal held not allowable in that general addition to quantified damages with Mustafa J.A expressing the view that such an award would amount to duplication. And so it would be.” 76.In respect to the claim for special damages, it is settled that special damages must be specifically pleaded and strictly proved in order to be awarded. This position was reaffirmed CIVIL CASE NO. E037 OF 2024 PAGE 32

page 32 of 36

by the Court of Appeal in David Bageine v Martin Bundi [1997] eKLR when it stated thus: “It has been held time and again by this Court that special damages must be pleaded and strictly proved. We refer to the remarks by this Court in the case of Mariam Maghema Ali v. Jackson M. Nyambu t/a Sisera store, Civil Appeal No. 5 of 1990 (unreported) and Idi Ayub Sahbani v. City Council of Nairobi (1982-88) IKAR 681 at page 684: “... special damages in addition to being pleaded, must be strictly proved as was stated by Lord Goddard C.J. in Bonham Carter vs. Hyde Part Hotel Limited [1948] 64 TLR 177 thus; “Plaintiff must understand that if they bring actions for damages, it is for them to prove damage, it is not enough to write down the particulars and, so to speak, throw them at the head of the court, saying, ‘this is what I have lost, I ask you to give me these damages, ‘They have to prove it.” 77.The Defendants pleaded the special damages sought in the following manner: CIVIL CASE NO. E037 OF 2024 PAGE 33

page 33 of 36

a)Restoration and renovation costs Kshs. 1,315,510/b) Unpaid rent-January Invoice No. 566 Kshs. 212,350/- c)Interest on unpaid rent Invoice No. 566 Kshs. 45,655/- d) Invoice No. 988 unpaid parking Kshs. 15,157/- e)Returned cheques No.s 2648 & 1222 Kshs. 11,000/- f) KPLC bills & penalties Kshs. 12,081/- g) Auctioneer charges Kshs. 120,000/- Total Kshs. 1,731,753/- 78.The Defendants are equally seeking a sum of Kshs. 1,274,100/- being an equivalent of six (6) months’ rent upon notice of termination of the lease agreement. Overall, the Defendants are seeking a total sum of Kshs. 2,168,803/under this head. 79.Upon my examination of the totality of the material on record, I have noted that the Defendants have only tendered documentation to support the following sums sought: a) Unpaid/dishonoured cheque No. 001222 dated 13/12/2023 for a sum of Kshs. 15,157/b) Pending cheque No. 002658 dated 6/02/2024 for a sum of Kshs. 212,350/CIVIL CASE NO. E037 OF 2024 PAGE 34

page 34 of 36

c) Six (6) months’ rent owed, upon notice of termination of the lease agreement, at Kshs. 212,350/- per month, totaling a sum of Kshs. 1,274,100/The above sums come to a total of Kshs. 1,501,607/80.The Defendants would therefore only be entitled to the sum of Kshs. 1,501,607/- being the special damages both specifically pleaded and strictly proved. 81.Consequently, I find in favour of the Defendants in their counterclaim and issue the following orders: a) That the Plaintiff’s case fails and is hereby dismissed with costs to the Defendants. b) That a declaration be and is hereby issued that the Plaintiff breached the Lease Agreement dated 22 nd May 2022. c) Judgment be and is hereby entered in favour of the Defendants in the sum of Kshs 1,501,607/= being special damages proved. d) The Defendants shall also have the costs of the Counterclaim. 82.It is so ordered. Dated, signed and delivered this 16th day of April 2026. CIVIL CASE NO. E037 OF 2024 PAGE 35

page 35 of 36

S. N. MUTUKU JUDGE In the presence of: 1. Ms Mboya for the Plaintiff 2. Mr. Masaviru for the Defendants CIVIL CASE NO. E037 OF 2024 PAGE 36

page 36 of 36