Douglas Kingori VS Julius Ongoro Douglas Kingori VS Julius Ongoro

(Being an Appeal from the judgment Small Claims Court Milimani (Hon. C. A. Okumu) delivered on 11^th November 2022 in SCC No. E1682 of 2022)

This appeal by way of a memorandum of appeal dated 22/5/2023 arises from a claim dated 6/12/2022 by the appellant (claimant in the SCC) against the respondent (respondent in the SCC) for compensation for loss or damage to property valued at KShs 986,000/= which occurred on or about 7/3/2022. It was alleged that the respondent broke into the appellant’s house which he had rented from the respondent and took all his household items and he was forced to seek alternative accommodation in a hotel. It was also alleged that the Rent Restriction Tribunal had issued a court order restraining the respondent from interfering with the appellant’s stay until the court determined the suit.
The respondent filed a response and counterclaim dated 3/8/2023 denied the respondent’s claim for compensation. He counterclaimed from the appellant a sum of KShs 360,075/= being the amount the appellant had refused or failed to pay as rent for the premises he occupied and also for occasioning physical harm to the respondent, his family and property, the particulars of which are provided in the response and counterclaim as:
1. rent arrears KShs 90,000/=
2. water bill KShs 8,000/=
3. damage to steal door KShs 2,000/=
4. damage to roof door KShs 3,000/=
5. damaged padlock and gate KShs 2,000/=
6. medical expenses for respondent and wife KShs 16,075/=
7. damage to open shoes KShs 7,000/=
8. damage to track suit KShs 5,000/=
9. transport costs arising out of the rent dispute KShs 7,000/=
10. Legal fees in the criminal case KShs 200,000/=
He prayed that the appellant’s claim be dismissed with costs and his counterclaim be allowed.
Learned counsels for parties at one point indicated that there were efforts to settle the matter out of court but these failed and the claim before the SCC proceeded by way of hearing where each party made available witnesses who adopted their respective witness statements, testified and were cross-examined.
The appellant Douglas King’ori testified as CW 1. He testified that the respondent was his landlord at Buruburu Farm apartments along Kangundo road. He was paying a monthly rent of KShs 10,000/=. The respondent however locked his house on various occasions on allegations of non-payment of rent. For instance, on 3/7/2020, he locked the appellant’s daughter Claire Kemunto, a student in form 3 in the house. It took police intervention to have the respondent open the door. On 6/12/2021, the respondent locked the house by welding the shutter to the frame. The appellant and his family were completely unable to access the house from that time. The appellant had to seek accommodation elsewhere. He produced some documents showing that from 1/12/2021 to 31/5/2022 he was being accommodated at Hotel Amazing Ltd, Kiambu. However, on 17/2/2022 the appellant learnt from a Facebook post that his former friend Veronicah Kungu was in the house and had posted his household goods as available for sale online. He went to the house where he found Veronicah. An altercation arose with Veronicah and later the respondent went there and the altercation escalated to him to a point where the appellant had to escape from the scene as a crowd there sought to beat him up. In the process of driving out he injured the respondent and his wife. He has since been charged with attempted murder at the Makadara Law Courts.
The appellant called CW 2, Claire Kemunto, his daughter and CW 3, Amos Maina his friend. Kemunto testified that she was a student in form 3 and she was allegedly locked in the house by the respondent on 3/7/2020 and that it took police intervention to have the respondent open the door for her. Amos testified that he was called by the appellant and went to the appellant’s residence at Buruburu Farm apartments along Kangundo road on 6/12/2021 and witnessed that the door had been locked allegedly by the landlord, the respondent herein. the respondent also called him on 17/2/2022 and he witnessed what transpired there.
The respondent Julius Ongoro testified as RW 1 and did not call any other witness. He adopted his witness statement dated 3/8/2022. His evidence was that the appellant was his tenant on a two year lease period from 5/6/2019 and was due to end on 4/6/2021 at a monthly rent of KShs 10,000/= but a bad one at that. The reason was that he was not good at paying rent and when asked to do so he resorted to insults and intimidation upon the respondent and his wife.
Instead of paying rent as required the appellant filed Case No. 1022 of 2022 at the Rent Restriction Tribunal and obtained interim orders for the status quo to be maintained pending hearing and determination of the case. He thereafter refused to pay the rent and even when the tenancy expired on 4/6/2021 he remained in the house. He also remained in the house even when the RRT case was determined on 1/9/2021 with the RRT determining that it had no jurisdiction to handle the case and discharged the interim orders earlier issued. He also failed to honour a demand by the respondent through his advocates that he vacates the premises.
The respondent decided to take possession of the premises and locked the door with a padlock. The appellant broke the padlock and gained access into the premises and continued to stay there.
On 18/2/2022 there was an altercation in the house occupied by the appellant. The respondent was called to the scene and found the appellant in the house assaulting a woman Veronica Wangari who was bleeding.
Upon the respondent’s and his wife’s intervention, the appellant left and the respondent and when he came back to the premises, he was denied access by the security guards due to the violence he had meted out to Veronica. He tried to gain forceful entry by banging the gate to the premises with a hammer to no avail. When the respondent arrived at the scene, the appellant turned to him with insults. Other tenants of the premises were irritated by the appellant’s conduct and decided the beat him up but the respondent intervened and stopped them. At that point, the appellant drove his car towards the respondent and his wife in an attempt to kill them. They both sustained injuries on their legs for which they sought treatment at Aga Khan hospital. They reported the matter at Ruai police station and the a criminal case was filed at Makadara Law courts against the appellant and is pending.
It was the respondent’s evidence that the appellant had failed to pay rent for the rented house since November 2021 and so he had outstanding arrears of KShs 90,000/=.
Upon analysing the evidence, the learned Adjudicator found that the appellant had failed to prove his case and dismissed it. She found that the respondent had partially proved his claim for medical treatment for bodily injury to the respondent and his wife amounting to KShs 16,075/= and awarded him the same. She dismissed the rest of the counterclaim.
Dissatisfied with the learned Adjudicator’s decision the appellant filed the appeal to this court through A.K. Wahome & Co. Advocates setting out some six grounds of appeal in his memorandum and praying that the judgment of the learned Adjudicator be set aside, judgment be entered for the appellant as prayed in the claim and the counterclaim by the respondent be struck out. The grounds of appeal are that the learned magistrate (sic) erred in law and in fact (sic):
1. by disregarding and/or failing to consider the appellant’s case as put forward in the pleadings, documents. witness statements and oral testimony.
2. by grossly misdirecting herself by failing to capture the appellant’s oral evidence and hence coming to the wrong conclusion of facts adduced.
3. by introducing her own evidence, list of authorities and relying on it without giving the appellant an opportunity to respond to the evidence.
4. through misapprehension and/or failure to adequately evaluate the evidence and exhibits tendered thereby arriving at an erroneous conclusion that the invoices presented by the appellant were not adequate proof of the costs incurred by the appellant.
5. when she failed to consider the evidence that the respondent evicted the appellant by welding the door of the appellant’s house and taking all household goods which belonged to the appellant.
6. when she failed to consider that the eviction of the appellant was unlawful and contrary to the laid down laws on eviction of a tenant.
7. failing to consider that the appellant had no rent arrears and in any event if there were arrears there is a laid down procedure for evicting a tenant.
8. failing to give a conclusive judgment on what happens to the appellant’s household goods which at the time were still detained by the respondent.
9. failing to award damages yet the appellant had suffered loss and damage as a result of the respondent’s illegal and unlawful actions.
The appeal was canvassed by way of written submissions filed by learned counsels for both parties.
I have considered the grounds of appeal raised in the memorandum of appeal, the record of appeal and the submissions by learned counsels for the parties.
There are a few house-keeping issues that should be addressed before delving into the substance of the appeal. First, the appellant’s initial pleadings were drafted for the magistrates court but apparently filed in the SCC. At the first appearance of the parties before the SCC, learned counsel for the respondent pointed out to the court that the pleadings were not in accordance with the SCC Rules. The appellant amended the pleadings and the claim proceeded for hearing. The ramifications of the same are that the respondent filed an application contesting the jurisdiction of the SCC to hear and determine the matter as he said it concerned land…..
Secondly, all the grounds of appeal start with the standard phrase of “…the learned trial magistrate erred in law and in fact…” To begin with, claims before the SCC are not conducted by a magistrate but by an Adjudicator as per section 5(a) of the SCCA (Cap. 10A) Laws of Kenya, the fact that an Adjudicator is at the same time a magistrate notwithstanding. The jurisdiction to preside over a SCC is conferred by statute upon an Adjudicator and not a magistrate.
Thirdly, an appeal to this court from the SCC is on points of law only as provided for under section 38 of the SCC Act. So, the first issue for this court to consider is whether the grounds of appeal raised by the appellant are on points of law only.
In nine out of the ten paragraphs of the grounds of appeal laid out in the memorandum, the learned counsel for the appellant keeps adverting to the phrase “the honourable magistrate erred in law and in fact.” Learned counsel would do well to refer to and be guided by the Court of Appeal’s observation in the case of Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 others [2014] eKLR that:

“Those points in an appeal of the kind before us, being from an election court’s decision, are further circumscribed by Section 85A of the Elections Act which limits appeals to the Court of Appeal to matters of law only. It is therefore quite strange and improper that each of the seventeen grounds, without exception, commences with a standard expression “the judge erred in fact and law” or “the learned Judge erred in law and in fact.” Clearly the drafters of the memorandum did not have the legal provision in active contemplation. Had they done so, they would have found that by invoking factual errors, they were inviting jurisdictional objections to their entire appeal.”

Therefore, on any issue raised in the appeal that touches on facts, this court is not bound to upset the findings of the trial court.
The Court of Appeal in M’Riungu v. Republic [1983] KLR 455, considering how to proceed to determine an appeal on points of law only, held thus:

“where a right of appeal is confined to question of law, an appellate court has loyalty to accept the findings of fact of the lower court(s) and resist the temptation to treat findings of fact as holdings of fact and law and it should not interfere with the decision of the trial court or the first appellate court unless it is apparent that on evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding that the decision is bad in law”.

The appellate court may however interfere with the findings of the trial court where it is demonstrated that there was no evidence at all upon which such findings were based or that the evidence relied upon was of such a nature that no reasonable tribunal, properly addressing its mind on it, could have made such findings as has been held in numerous decisions. (see for instance Bashir Haji Abdullahi v Adan Mohammed Nooru & 3 others [2014] eKLR.
Learned counsel for the respondent submits that, even though the learned Adjudicator found otherwise, the position is that the SCC had no jurisdiction to entertain the appellant’s claim and consequently, this court cannot proceed on appeal on the same.
To determine that issue, the court will consider what type of claim the appellant presented before the SCC. The appellant’s claim as set out in the statement of claim is for a sum of KShs 986,000/= being the amount he incurred when he, as a tenant, sought alternative accommodation in a hotel and took all his household items when the respondent as the landlord locked his rented premises.
In addition to the written witness statement and the oral evidence he tendered in court the appellant produced invoices allegedly issued to him when he sought the alternative accommodation. He also produced a list of household items enumerated as sofa set (5 seater), bed ( 1 piece), dining table set, house curtains, house carpets ( 3 pieces), TV table (wooden TV cabinet), utensils (all kitchen utensils), glass table (1 piece), wooden table small (1 piece), clothes, shoe rack (1 piece), meko 6kg (1 piece), water dispenser (1 piece), super drum (1 piece), washing basins & buckets, woofer, table gas 2 burners, shoes with a total value of KShs 635,000/=.
I find this case to present a very interesting scenario regarding the jurisdiction of the SCC which the learned Adjudicator tried to deal with as a preliminary issue and found that she could deal with issues over which the court had jurisdiction and leave out those which it did not have.
The jurisdiction of the SCC is provided for under section 12(1) of the SCC Act as follows:

1. Subject to this Act, the Rules and any other law, the Court has jurisdiction to determine any civil claim relating to—

a). a contract for sale and supply of goods or services;

b). a contract relating to money held and received;

c). liability in tort in respect of loss or damage caused to any property or for the delivery or recovery of movable property;

d). compensation for personal injuries; and

e). set-off and counterclaim under any contract.

This is a limited jurisdiction circumscribed by statute. It is apparent from the evidence tendered before the SCC, the submissions before that court and before this court that the claim by the appellant arises out of his relationship with the respondent as tenant and landlord respectively. The decisions cited by the appellant of Gusii Mwalimu Investment Co. Ltd vs Muahimu Hotel Kisii Ltd, [1996] eKLR, Teresia Irungu – Versus - Jackton Ocharo & 2 others [2013] eKLR and Mattarella Limited – Versus -Michael Bell & another [2018] eKLR are on the relationship of landlord and tenant. It is on that basis that the appellant claims that as the respondent’s tenant, the respondent locked him out of his rented premises as a result of which he had to seek alternative accommodation in a hotel at the same time as the respondent retained his household items. He seeks damages for breach of the contract between a landlord and tenant. If this relationship cannot be construed as such then his claim has no basis upon which to stand because according to him, at the time the events leading to the claim occurred, he was still a tenant of the respondent.
It is only by construing their relationship as landlord and tenant that the appellant can sustain his claim that his landlord, the respondent unfairly kept him out of his rented premises and therefore he claims damages being the cost of hiring alternative accommodation as well as the cost of his household items. I do not see any other way he can put up a claim for compensation from the respondent other than that he is his tenant.
It is the position, following the above cited cases, that a landlord is obligated to seek and obtain a judicial order for possession unless the tenant voluntarily yields up possession to the landlord. The result of it all is that the claim is based on a landlord-tenant relationship between the appellant and the respondent. The cause of action arising therefrom as claimed by the appellant herein is outside the jurisdiction of the SCC as it is not provided for under the SCC Act. Although it is contractual, not all forms of contractual engagements found a cause of action before the SCC but only those provided for under section 12(1) of the SCC Act, unless the action arises by way of a set-off or counterclaim.
The interesting scenario presented in this case therefore was that whereas the appellant could not present his claim for adjudication before the SCC based on their relationship of landlord and tenant, the respondent on the other hand, based on the same relationship of landlord and tenant could properly present his counterclaim before the SCC under section 12(1)(e) of the SCC Act. It would appear to me that the learned Adjudicator overlooked that issue in determining the respondent’s counterclaim for rent arrears. However, since there was no cross-appeal on that issue, this court cannot delve into it further.
According to the respondent, that relationship of landlord and tenant came to an end when the two-year lease of the premises by the appellant came to an end on 4/6/2021. However, that contention is not true. The appellant continued to stay on the premises as tenant beyond that time due to an order issued earlier by the Rent Restriction Tribunal on 15/7/2020 which inter alia restrained the respondent from evicting, harassing the appellant or in any other manner interfering with his tenancy pending the hearing of the application before the Tribunal. On 1/9/2021, the Tribunal determined the suit by the appellant before it in terms inter alia that the premises fell outside the Tribunal’s jurisdiction and interim orders earlier issued were discharged.
It is apparent that the appellant continued to occupy the premises because the events leading to the claim before the SCC leading to the present appeal arose on 18/2/2022. The issue that took the appellant to the RRT was rent arrears. In its interim order the appellant was ordered to pay the arrears of rent in installments together with the accrued rent so as to have cleared within 60 days from the date of the order on 15/7/2020. The appellant has not produced any evidence that as at the time the order was vacated for the RRT’s lack of jurisdiction, he had cleared the rent arrears and was up to date. He maintains through his pleadings and submissions that he paid the rent but without providing any documentary proof of payment. In that case, being in rent arrears, the respondent as landlord had a right under the Distress for Rent Act (Cap. 293) Laws of Kenya to distrain the appellant’s goods for the rent due.
From the foregoing analysis, it is evident that the pleading, evidence and submission by the appellant that, as at the time of him filing his claim before the SCC, there was in force an order by the Rent Restriction Tribunal restraining the respondent from interfering with his stay until the court determined the suit is without any basis at all. The fact is that he continued to be the respondent’s tenant without a lease or tenancy agreement or order of the court and without the respondent’s consent.
It is difficult to assume that the appellant’s claim could have any other basis other than that of landlord and tenant relationship.
That being his case, it follows that the learned Adjudicator had no jurisdiction to handle a case of landlord and tenant in the claim as presented by the appellant. The appellant’s claim fell for determination in the Magistrates Environment and Land Court. Perhaps he should have retained it there as initially filed. Consequently, I agree with learned counsel for the respondent that this court would have no jurisdiction to entertain the appeal.
But even assuming that the SCC had jurisdiction to entertain his case, the next issue to determine would be whether he had proved his case. His claim for compensation is for both special damages for the costs incurred in seeking alternative accommodation and for the items retained in the house by the respondent. He also prayed for damages for breach of contract.
I will immediately dispose of the claim for damages for breach of the contract under the landlord/tenant relationship by finding that as a general rule, there can be no damages for breach of contract. There are a myriad of decided cases over the issue for instance the Court of Appeal in Provincial Insurance Co East Africa Ltd v Nandwa LLR No. 867 (CAK) and in Habib Zurich Finance (K) limited vs. Muthoga & Another. [2002] 1 EA 81 at page 88 which cited with approval the decision of the Court of Appeal for Eastern Africa in the Case of Dharamshi vs. Karan (supra) where that court held as follows:

“This case has been accepted by this court as an authority for the proposition that general damages cannot be awarded for breach of contract and that proposition makes sense because damages arising from a breach of a contract are usually quantifiable and are not at large. Where damages can be quantified they cease to be general…”

The appellant’s claim for damages for breach of contract could therefore not succeed.
Turning to the issue of special damages, and whether the learned Adjudicator was right to dismiss the claim on the basis of insufficiency of the invoices produced before the trial Court as proof of his claim, it is trite law that special damages must be specifically pleaded and proved as held in the case of Hahn vs Singh 1985 Kenya Law Reports 716, by the Court of Appeal thus:-

“…special damages which must not only be claimed specifically 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 of certainty and particularity of proof required depends on the circumstances and the nature of the act themselves”.

The appellant produced invoices from Hotel Amazing Ltd. The invoices start from 1/12/2021 to 31/5/2022 and yet the appellant’s evidence was that the respondent locked his house on 6/12/2021. Why would he make claims on invoices starting before he was denied access to the house? I have also checked the invoices and I note that several of them are missing, for instance for the entire month of February, 2022. The question would be, where was he putting up during that period and even so, why would he put up in a hotel for so long without mitigating his damage, if any? These inconsistencies’ lead to the conclusion that the invoices were not authentic for what the appellant claims they were.
But more fundamentally, invoices alone are not sufficient proof that the appellant paid for the services of accommodation. No explanation was offered why he could not obtain receipts from the hotel, if indeed there was one where he sought and obtained the services. In the case of Great Lakes Transport Co (U) Ltd vs Kenya Revenue Authority (2009) eKLR 720, on the production of proforma invoices, the Court of Appeal stated thus’

“What we mean is that, in case the goods for which an invoice is issued have been paid for, one would normally expect endorsements such as the word” paid” on the invoice and that would turn the status of the invoice into a receipt. Otherwise, in our minds, a proforma invoice is given in respect of an advice sought from a supplier as to what the cost of goods wanted would be, i.e. quotation given on enquiry as to the price of the goods sought and an invoice is given in cases where an order for supply of goods has been made but payment is not yet made. In either case none of the two documents would amount to a receipt.”

From the evidence, the appellant produced invoices in support of the claims. The same were not endorsed as paid and so could not act as receipts. There was no evidence to support the claim for the cost of the household items claimed. In any case, he could as well get them from the respondent. Interestingly, that was not one of his prayers yet he claimed the house was still locked.
By way of summary, the other grounds of appeal raised by the appellant are that the learned Adjudicator failed to give due regard to his evidence that the respondent had constructively evicted him from the rented premises and detained his goods therein thereby denying him use of the same on allegations that the appellant was in rent arrears which according to him was not true.
The issues raised by the appellant herein are on the facts presented by the parties and the learned adjudicator’s appraisal of the same.
The procedure in the SCC is not governed by the CPA or the Rules made thereunder. The SCC Act in section 17 provides that the Court shall have control of its own procedure in the determination of claims before it and, in the exercise of that control, the Court shall have regard to the principles of natural justice.
In my assessment therefore, the principles of natural justice take centre stage in a matter before the SCC. These principles are as enunciated in the case of Msagha vs. Chief Justice & 7 Others Nairobi HCMCA no. 1062 of 2004 (Lesiit, Wendo & Emukule, JJ on 3/11/06) (HCK) [2006] 2 KLR 553 thus:

“The ingredients of fairness or natural justice that must guide all administrative decisions are, firstly, that a person must be allowed an adequate opportunity to present their case where certain interests and rights may be adversely affected by a decision-maker; secondly, that no one ought to be judge in his or her case and this is the requirement that the deciding authority must be unbiased when according the hearing or making the decision; and thirdly, that an administrative decision must be based upon logical proof or evidence material.”

In my considered view, the failure to import the use of the Civil Procedure Act and Rules thereunder into the SCC Act was deliberate in order to keep the proceedings simple and straightforward for an expedited hearing and determination of the claim. That I believe is why the proceedings in a SCC are in the form of summaries of the facts of the issues in dispute in respect of those claims as determined and recorded by the Court during the hearing of the claims as per section 22(b) of the SCC Act. This is contrasted with the provisions of Order 18 Rule 4 of the CPR which requires that the evidence of each witness is to be taken down in the form of a narrative and this forms the record of the court.
The final issue is that the learned Adjudicator introduced other material in the matter which she relied upon in making her decision and erred in her finding that the appellant was responsible for injuries sustained by the respondent though no evidence was adduced at the hearing to support the respondent’s claim that the injuries sustained were occasioned by the appellant. The appellant has cited the provisions of sections 107, 108 and 109 of the Evidence Act (cap. 80) Laws of Kenya, text book material and decided cases on how to prove a fact before a court of law.
However, Section 32 of the SCC Act provides that the strict evidentiary rules applicable in other courts are not wholly applied in the Small Claims Court. It further, provides that the Court may admit as evidence any oral or written testimony, record, or other material even though the same is not admissible as evidence in any other Court under the law of evidence.
Therefore, remembering that the SCC Act exempts the court proceedings from the rigid application of the standards of evidence applicable in other court proceedings and permits the court to include as evidence any material that it deems credible or trustworthy it is upon the Adjudicator to determine the material to rely upon. This means the Adjudicator has the discretion to admit evidence which may be helpful in establishing whether or not the claim is worthy.
All the same, I have considered the proceedings before the SCC and I do not find any validity in the complaint that the appellant was not accorded a fair hearing or that extraneous material was introduced in the matter that the trial court relied upon to make its determination. The appellant’s complaints are therefore without merit.
Therefore, the learned Adjudicator in this case cannot be faulted for arriving at the decision that she did. I find no reason to find otherwise as her conclusion was reached based on evidence available to her and not from no evidence at all.
Otherwise, having determined that the SCC had no jurisdiction to hear and determine the appellant’s claim and that this court would have no jurisdiction to entertain the appeal, the subsequent findings of this court bear no weight on the final result.
Consequently, I find the appeal has no merit and it fails and the respondent shall get the costs of this appeal.
Orders accordingly.
Delivered, dated and signed at Milimani on the Virtual Platform, Teams this 28^th day of October 2024.

In the presence of:

N/A for the Appellant.

Justice Nyaga for the Respondent.

Eutropia Court Assistant.