(Being an appeal from the ruling and orders of Hon. E.A. Obina PM delivered on the 3/10/2024 in the Kisumu Chief Magistrate’s Case
No. E442 of 2021, Mayfair Holdings Limited v East African Institute of Certified Studies Limited)
1. The appellant vide his motion dated 11/5/2024 moved court seeking a refund of Kshs. 1,510,930 from the respondent being the amount owing following the execution of the decree the court had given on the 11/5/2023 and which had subsequently been set aside vide High Court Appeal No. E066 of 2023.
2. The respondent vide its replying affidavit sworn on the 14/06/2024 opposed the application stating that following the High Court judgement, the appellant had been paid Kshs. 504,996; that the amount due to the appellant was thus Kshs. 995,004 and that the issue of rent deposit of Kshs. 990,000 was not before the court and thus the appellant ought to have made the claim in a separate suit.
3. In its ruling delivered on the 3/10/2024, the trial court proceeded to dismiss the appellant’s application noting that the landlord was justified in retaining the deposit so as to wipe out his loss as a result of the Covid 19 pandemic and further that the issue of rent was not an issue before it thus is a separate issue all together. As regards the auctioneer charges, the trial court noted that the appellant was the author of its own misfortune having failed to settle the amount due in time.
4. Being dissatisfied with the said Judgment/decree, the appellant lodged this appeal vide the Memorandum of Appeal dated 9/10//2024 and raised three (3) grounds of appeal as follows: -
a) The learned senior principal magistrate was wrong and erred in finding that the appellant could not recover the rent deposit paid by the appellant to the respondent on account of an event of force majeure namely, Covid 19 pandemic, when the said rent deposit of Kshs. 990,930 was paid before the Covid 19 pandemic had set in and could not be an event that would have prevented the respondent from refunding the said rent deposit to the appellant.
b) The learned senior principal magistrate erred and was wrong in holding that the issue of rent deposit was not an issue in the said suit when in his judgement given on 11th May 2023, he had awarded to the respondent a sum of Kshs. 3,031,501 less any rent deposit paid by the appellant to the respondent prompting the appellant to make an application dated 20th June 2023 on which the learned magistrate had made an order reducing the judgement sum to Kshs. 2,040,571.
c) The learned magistrate erred and was wrong in failing to determine that a sum of Kshs. 520,000 paid by the appellant to M/S Victoria Blue Auctioneers was as a result of execution of the judgement given in Kisumu CMCC No. E442 of 2021 and the appellant having succeeded and had the judgement set aside in Kisumu High Court Civil Appeal E066 of 2023 was entitled to restitution of that sum from the respondent.
5. The appeal was disposed of by written submissions. The appellant submitted that it was asking for a refund of rent deposit paid at the commencement of the tenancy before the Covid 19 pandemic occurred thus the Pandemic was not an act which could have prevented the claim for a refund of the deposit being made.
6. That the issue of rent deposit was an issue dealt with in the court below and was thus a proper issue to raise as money for a refund by the respondent and further as regards the monies paid to the Auctioneers, once the decree had been set aside and it had been shown that money had been paid to the auctioneers, it was only logical that the money be refunded to him.
7. On its part, the respondent submitted that if the appellant had a claim for rent deposit then the same should have been in a separate suit which they would have been able to defend and the fact that the trial magistrate commented about it did not amount to a counter claim to the suit it filed in the lower court.
8. It was further submitted that there was no order made that the respondent should refund the auctioneer fees paid but rather that each party ought to bear its own costs.
9. This being a first appeal, the Court is duty bound to evaluate the evidence before the trial afresh and come to its own independent findings and conclusions. See Selles & Anor vs. Associated Motor Boat Co Ltd & Others [1968] EA 123.
10. I have considered the evidence tendered before the trial court and the submissions made before me.
11. The respondent initially sued the appellant seeking rental arrears of Kshs. 3,031,501 and was granted the same vide the trial court’s judgement of 11/5/2023.
12. The subsequent decree emanating from the trial court’s judgement provided that the appellant was liable to settle Kshs. 2,611,930 being the rental arrears owing as well as costs of Kshs. 250,187.
13. The appellant filed an appeal vide Civil Appeal No. E066 of 2023 which appeal set aside the entire judgement and decree passed on the 11/5/2023 by the lower court and substituted it with an order dismissing the respondent’s suit against the appellant. The court further ordered both parties to bear their own costs both in the trial and lower court.
14. Based on the judgement of this court in Civil Appeal No. E066 of 2023, the appellant was thus entitled to recover the amounts of Kshs. 2,611,930 being the rental arrears owing as well as costs of Kshs. 250,187 if at all the same were settled by the appellant.
15. The appellant pleaded before the trial court via his supporting affidavit sworn on the 15th May 2024 deposed that he had paid a total of Kshs. 1,520,000 to the respondents being Kshs. 1,000,000 to the respondent’s advocates and Kshs. 520,000 to Victoria Blue Auctioneers.
16. However, the appellant further claimed for Kshs. 990,930, an amount he asserted was rental deposit paid to the respondent.
17. On its part the respondent deposed that following the judgement in Civil Appeal E066 of 2023, it had paid the appellant Kshs. 504,996, that the amount paid to the auctioneer was on account of the appellant’s own dereliction of his obligations
18. I have considered the record. The appellant pleaded for a refund of his rental deposit of Kshs. 990,930. I do note that in the Decree dated 14th August 2023, in calculating the amount due to the respondent by the appellant in rental arrears, the court took into account the rental deposit of Kshs. 990,930 which it deducted from the total rental arrears of Kshs. 3,031,501. Therefore, the said amount had already been factored into in calculating the amount due to the respondent.
19. I do note that the appellant never pleaded nor filed a counter claim regarding the rental deposit and is thus barred from asserting his claim on the same. It has been held that a court has no jurisdiction to grant a prayer that is not pleaded. See the Court of Appeal case of Caltex Oil (Kenya) Limited v Rono Limited [2016] eKLR.
20. I thus find that grounds 1 & 2 raised by the appellant lack merit and I proceed to dismiss them.
21. As regards the auctioneer charges claimed by the appellant, it is worth noting that a debtor is ultimately responsible for the decretal sum and related execution costs, including auctioneer fees, which fees are calculated separately from the principal amount of the debt.
22. Where there were valid execution proceedings, the costs incurred therein can only be borne by the debtor. They are separate from the decretal sum set aside by the judgement in Civil Appeal E066 of 2023.
23. Accordingly, I find that the third and final ground raised by the appellant lacks merit and I proceed to dismiss it.
24. The upshot of the above is that I find that this appeal lacks merit and I proceed to dismiss it with costs to the respondent.
No. E442 of 2021, Mayfair Holdings Limited v East African Institute of Certified Studies Limited)
1. The appellant vide his motion dated 11/5/2024 moved court seeking a refund of Kshs. 1,510,930 from the respondent being the amount owing following the execution of the decree the court had given on the 11/5/2023 and which had subsequently been set aside vide High Court Appeal No. E066 of 2023.
2. The respondent vide its replying affidavit sworn on the 14/06/2024 opposed the application stating that following the High Court judgement, the appellant had been paid Kshs. 504,996; that the amount due to the appellant was thus Kshs. 995,004 and that the issue of rent deposit of Kshs. 990,000 was not before the court and thus the appellant ought to have made the claim in a separate suit.
3. In its ruling delivered on the 3/10/2024, the trial court proceeded to dismiss the appellant’s application noting that the landlord was justified in retaining the deposit so as to wipe out his loss as a result of the Covid 19 pandemic and further that the issue of rent was not an issue before it thus is a separate issue all together. As regards the auctioneer charges, the trial court noted that the appellant was the author of its own misfortune having failed to settle the amount due in time.
4. Being dissatisfied with the said Judgment/decree, the appellant lodged this appeal vide the Memorandum of Appeal dated 9/10//2024 and raised three (3) grounds of appeal as follows: -
a) The learned senior principal magistrate was wrong and erred in finding that the appellant could not recover the rent deposit paid by the appellant to the respondent on account of an event of force majeure namely, Covid 19 pandemic, when the said rent deposit of Kshs. 990,930 was paid before the Covid 19 pandemic had set in and could not be an event that would have prevented the respondent from refunding the said rent deposit to the appellant.
b) The learned senior principal magistrate erred and was wrong in holding that the issue of rent deposit was not an issue in the said suit when in his judgement given on 11th May 2023, he had awarded to the respondent a sum of Kshs. 3,031,501 less any rent deposit paid by the appellant to the respondent prompting the appellant to make an application dated 20th June 2023 on which the learned magistrate had made an order reducing the judgement sum to Kshs. 2,040,571.
c) The learned magistrate erred and was wrong in failing to determine that a sum of Kshs. 520,000 paid by the appellant to M/S Victoria Blue Auctioneers was as a result of execution of the judgement given in Kisumu CMCC No. E442 of 2021 and the appellant having succeeded and had the judgement set aside in Kisumu High Court Civil Appeal E066 of 2023 was entitled to restitution of that sum from the respondent.
5. The appeal was disposed of by written submissions. The appellant submitted that it was asking for a refund of rent deposit paid at the commencement of the tenancy before the Covid 19 pandemic occurred thus the Pandemic was not an act which could have prevented the claim for a refund of the deposit being made.
6. That the issue of rent deposit was an issue dealt with in the court below and was thus a proper issue to raise as money for a refund by the respondent and further as regards the monies paid to the Auctioneers, once the decree had been set aside and it had been shown that money had been paid to the auctioneers, it was only logical that the money be refunded to him.
7. On its part, the respondent submitted that if the appellant had a claim for rent deposit then the same should have been in a separate suit which they would have been able to defend and the fact that the trial magistrate commented about it did not amount to a counter claim to the suit it filed in the lower court.
8. It was further submitted that there was no order made that the respondent should refund the auctioneer fees paid but rather that each party ought to bear its own costs.
9. This being a first appeal, the Court is duty bound to evaluate the evidence before the trial afresh and come to its own independent findings and conclusions. See Selles & Anor vs. Associated Motor Boat Co Ltd & Others [1968] EA 123.
10. I have considered the evidence tendered before the trial court and the submissions made before me.
11. The respondent initially sued the appellant seeking rental arrears of Kshs. 3,031,501 and was granted the same vide the trial court’s judgement of 11/5/2023.
12. The subsequent decree emanating from the trial court’s judgement provided that the appellant was liable to settle Kshs. 2,611,930 being the rental arrears owing as well as costs of Kshs. 250,187.
13. The appellant filed an appeal vide Civil Appeal No. E066 of 2023 which appeal set aside the entire judgement and decree passed on the 11/5/2023 by the lower court and substituted it with an order dismissing the respondent’s suit against the appellant. The court further ordered both parties to bear their own costs both in the trial and lower court.
14. Based on the judgement of this court in Civil Appeal No. E066 of 2023, the appellant was thus entitled to recover the amounts of Kshs. 2,611,930 being the rental arrears owing as well as costs of Kshs. 250,187 if at all the same were settled by the appellant.
15. The appellant pleaded before the trial court via his supporting affidavit sworn on the 15th May 2024 deposed that he had paid a total of Kshs. 1,520,000 to the respondents being Kshs. 1,000,000 to the respondent’s advocates and Kshs. 520,000 to Victoria Blue Auctioneers.
16. However, the appellant further claimed for Kshs. 990,930, an amount he asserted was rental deposit paid to the respondent.
17. On its part the respondent deposed that following the judgement in Civil Appeal E066 of 2023, it had paid the appellant Kshs. 504,996, that the amount paid to the auctioneer was on account of the appellant’s own dereliction of his obligations
18. I have considered the record. The appellant pleaded for a refund of his rental deposit of Kshs. 990,930. I do note that in the Decree dated 14th August 2023, in calculating the amount due to the respondent by the appellant in rental arrears, the court took into account the rental deposit of Kshs. 990,930 which it deducted from the total rental arrears of Kshs. 3,031,501. Therefore, the said amount had already been factored into in calculating the amount due to the respondent.
19. I do note that the appellant never pleaded nor filed a counter claim regarding the rental deposit and is thus barred from asserting his claim on the same. It has been held that a court has no jurisdiction to grant a prayer that is not pleaded. See the Court of Appeal case of Caltex Oil (Kenya) Limited v Rono Limited [2016] eKLR.
20. I thus find that grounds 1 & 2 raised by the appellant lack merit and I proceed to dismiss them.
21. As regards the auctioneer charges claimed by the appellant, it is worth noting that a debtor is ultimately responsible for the decretal sum and related execution costs, including auctioneer fees, which fees are calculated separately from the principal amount of the debt.
22. Where there were valid execution proceedings, the costs incurred therein can only be borne by the debtor. They are separate from the decretal sum set aside by the judgement in Civil Appeal E066 of 2023.
23. Accordingly, I find that the third and final ground raised by the appellant lacks merit and I proceed to dismiss it.
24. The upshot of the above is that I find that this appeal lacks merit and I proceed to dismiss it with costs to the respondent.