Background
1. In his decision of 26th June 2025, the Learned Trial Magistrate, allowed the 1st Respondent’s claim and entered judgment in his favour against the Appellant and the 2nd Respondent jointly and severally and ordered that the eviction and auction were unlawful, that the Appellant and the 2nd Respondent acted in contempt of court, they were ordered to repay the 1st Respondent the proclaimed items estimated at Kshs 3,657,165/= together with interest at court rates, compensation for loss of damages to a sum of Kshs 2,000,000/= together with interest at court rates, the Appellant, the 1st and 2nd Respondents were ordered to take account of any rent arrears which was to be deducted from any amount or proceeds auctioned from the proclaimed stock in the sum of Kshs 350,000/= and costs of the suit was awarded to the 1st Respondent.
2. Being aggrieved by the said decision, the Appellant herein filed a Memorandum of Appeal dated 23rd July 2025. He relied on ten (10) Grounds of Appeal.
3. His written submissions were dated 3rd December 2025 and his supplementary submissions were dated 8th April 2026. The 1st Respondent’s submissions were dated 16th February 2026. The 2nd Respondent did not participate in this appeal. The Judgment herein is, therefore, based on the said written submissions by the Appellant and the 1st Respondent which parties relied upon in their entirety.
Analysis of the Case
4. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify. This was stated in the case of Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect.
5. Having looked at the Grounds of Appeal and the parties’ written submissions, it appeared to this court that the issues that had been placed before it for determination were as follows: -
a. Whether or not the Trial Court erred holding that the auction was unlawful, and;
b. Whether or not the Trial Court erred awarding the 1st Respondent special and general damages.
Whether or not the Trial Court erred holding that the auction was unlawful
6. The Appellant invoked Section 3(1) of the Distress for Rent Act (hereinafter referred to as the Act) to emphasis that a landlord had a right to recover the owed rent by levying distress provided that distress was not illegal. He asserted that the Trial Court held that proclamation notice was not served upon the 1st Respondent yet the same was filled in court by the 1st Respondent.
7. He submitted that the orders the Trial Court relied on dated 13th October 2021 issued by Hon. Selina Muchungi had lapsed according to the ruling of Hon. Selina Muchungi dated 22nd April 2022 hence, it was improper for the Trial Court to have concluded that the orders were still in force at the time the proclamation was undertaken. He maintained that there were no court orders in place at the time the good were carried away and, therefore, the Trial Court erred concluding that the distress was unlawful.
8. He argued that the 1st Respondent admitted to be in rent arrears therefore, the Appellant’s right for distress for rent which was a remedy available to him could not amount to infringement of the right to property. He maintained that due procedure was followed in accordance to Auctioneers Act thus the lawful proclamation of goods in execution of a lawful debt did not violate Article 40 of the Constitution.
9. In his supplementary submissions, he maintained that the proclamation notice was served upon the 1st Respondent and which was filed by the 1st Respondent and that the filing was conclusive proof that it was served. Further, the filing of the application dated 8th October 2021 by the 1st Respondent to stop auction was also proof that the proclamation notice was served. He was emphatic that the 1st Respondent’s conduct was unequivocal acknowledgment of service and in this regard, he cited Omondi vs Kassam & another [2024] KEHC 10703 (KLR). He also maintained that there were no subsisting orders when the goods were proclaimed on 4th November 2021 hence the Appellant could not be held to be in contempt of orders that had already lapsed.
10. As to whether there was need to use auctioneers, he stated that the 1st Respondent admitted to owing a substantial amount in rent arrears hence he had a right to levy distress for rent pursuant to Section 3(1) of the Act and to instruct auctioneers. He argued that since the 1st Respondent admitted to be in arrears, this disentitled him from challenging a lawful distress and he cited Nova Innovators Limited vs Davani Limited; Mayfair Auctioneers [2025] KEBPRT 415 (KLR). He also invoked Section 15 of the Act to emphasis that even though there were irregularities in the manner of sale, which he denied, the same would not render the entire distress unlawful.
11. On his part, the Respondent submitted that the proclamation notice was not served pursuant to Rule 12 of the Auctioneers Rules, Legal Notice No. 120 of 1997 and he placed reliance on Telkom Kenya Ltd vs John Ochanda (suing on behalf of 996 former employees of Telkom Kenya Ltd) [2014] eKLR, where the court opined that statutory procedure were to be adhered to where rights were at stake.
12. He asserted that he had filed an application seeking to restrain auction which application was pending and had preservatory orders and defiance of the same constituted contempt of court. He placed reliance on the case of Econet Wireless Kenya Ltd vs Minister for Information & Communication of Kenya & another [2005] KEHC 1767 (KLR) where court emphasised on importance of complying with court orders. He pointed out that the Appellant and the 2nd Respondent were aware of the pendency of the court proceedings and they therefore violated the principle of sub judice and undermined the authority of the court.
13. He submitted that there was no justification to use auctioneers since the Appellant had legal recourse in form of distress for rent under the Act. He claimed that the items that the 2nd Respondent took were not properly proclaimed pursuant to Rules 6, 8, 11 and 12 of the Auctioneers Rules and PW1 and PW2 also confirmed that no notice was given and due process was not followed.
14. As to violation of his right to property pursuant to Article 40 of the Constitution, he claimed that Appellant’s actions amounted to arbitrary deprivation of property without lawful cause and he cited Isaac Gathungu Wanjohi & another vs Attorney General & 6 others [2021], where the court stated that no person was to be deprived of property except in accordance with the law. He pointed out that the Appellant failed to adduce evidence of the goods sold and proceeds realized which amounted to lack of accountability and which constituted arbitrary deprivation of property.
15. A perusal of the record showed that through a further amended plaint dated 8th June 2023, the 1st Respondent moved the Trial Court seeking for orders for return of proclaimed stock, equipment, items and his property or repayment of the proclaimed items amounting to Kshs 3,657,165/=, compensation for loss and damages of business, trauma and anguish amounting to Kshs 2,000,000/=, and order directing him and the Appellant to take accounts of any rent arrears and the same be deducted from the proceeds of proclaimed items and costs of the suit.
16. He averred that vide a lease agreement dated 10th September 2018, the Appellant leased to him the premises on LR 36/11/22 for purposes of a bar and restaurant. He stated that the business was affected by Covid 19 restrictions and the Appellant granted him rent rebate of Kshs 270,000/-. He further averred that he fell into arrears and when the Appellant threatened to auction his business, he moved to court and obtained an order on 13th October 2021 restraining the Appellant and the 2nd Respondent from levying distress, evicting him or interfering with his business. He claimed that on 4th November 2021, the Appellant accompanied by police officer seized all the stock and items in his business premises and learnt later they were effecting a proclamation order which was never served upon him. He also averred that the seizure of his items was in contempt of the court order issued on 13th October 2021.
17. The Appellant filed a defence statement dated 13th June 2023 where he denied the contents of the further amended plaint and averred that the 1st Respondent had admitted to be in arrears hence distress for rent was proper. He also denied being served with the orders and claimed that distress for rent was carried on 4th November 2021 when the said orders had lapsed. He also denied the value of the proclaimed items as was alluded by the 1st Respondent.
18. The matter proceeded for hearing, Joseph Kariuki (hereinafter referred to as PW1) adopted his written statement and testified that he was the manager at the Appellant’s bar. He also stated that a group of people accompanied by police officers went to the bar and took stock. He testified he did not see any order or document and he maintained on cross examination that he was not served with a proclamation notice.
19. The 1st Respondent testified as PW2 and he stated that he owed the 1st Respondent rent arrears amounting to Kshs 740,000/=. He claimed that the stock was worth Kshs 3,000,000/= while the fixtures were worth Kshs 4,000,000/=. He admitted on cross examination that he was not paying rent at the time and he had rent arrears of Kshs 999,000/= excluding the deposit and rebate. He further stated that according to the agreement, the landlord was at liberty to levy distress in case of default. He claimed that no meeting was called to highlight on rent arrears. He testified that he obtained orders to restrain the distress which he served but the said orders lapsed on 28th October 2021 while the distress was on 4th November 2021. He also stated that the orders were extended by the Judge. He stated that he was forcefully evicted and he testified on Re-examination that he was not served with a proclamation notice.
20. The Appellant on his part adopted his written statement dated 23rd October 2023 where he claimed that from September 2018 to June 2019, the 1st Respondent never paid the rent. He also stated that the rent rebate was conditional that the outstanding owing rent was paid. He further stated that he was not served with a court order and only received a message from the judiciary stating that a case had been filed and he was also informed by his advocate that the 1st Respondent had filed a suit restraining him from evacuating him from the premises which orders had lapsed by the time distress for rent was levied.
21. He testified on cross examination that the 1st Respondent was supposed to pay rent as he was renovating the premises. That he had instructed auctioneers and he was told that the orders including the proclamation were dropped at the premises but he declined to sign. He stated that the stock that was taken was around Kshs 180,000/= and it was not true that the 1st Respondent had paid Kshs 700,000/= during Covid. He claimed that what was outstanding was Kshs 995,000/= and not Kshs 350,000/=.
22. From the evidence on record there were no stay orders in place when the auction took place. From the record of appeal on page 149 there is a ruling which explained when the orders had lapsed which was on 28th October 2021 and by the time the goods were proclaimed on 4th November 2021 no orders were in place.
23. There is no order availed before Court to show that there were subsequent orders staying any action. The Trial Court’s finding that there were stay orders is not based on any evidence. The Ruling dated 22nd April 2022 on page 149-155 sets the record straight.
24. Having found that there were no Court Order stopping the auction, the next issue is was the law followed. The trial Court found that the landlord failed to follow due process. The trial Court faulted the landlord for failing to follow due process in levying distress for rent.
25. As to whether the 1st Respondent was entitled to general damages of Kshs 2,000,000/=,the Appellant submitted that trespass was not pleaded and was not a cause of action and prayer for general damages for trespass had not been made. To this end, he cited Caltex Oil (Kenya) Limited vs Rono Limited [2016] where the court stated that if a party wished the court to determine or grant a prayer, the same was to be specifically pleaded and proved.
26. He claimed that the 1st Respondent had prayed for Kshs 2,000,000/= as damages for loss of business, trauma and anguish which were special damages in nature and which needed to be proved and since there was no evidence for such loss, he was not entitled to the award.
27. The 1st Respondent did not submit on this issue.
28. The 1st Respondent testified that he had filed receipts for some of the items he had bought while the other documents were carried away. He had bought the cement and receipts were attached. He had also bought the speakers. He also stated that he was seeking Kshs 3,000,000/= for investment and that he had attached some documents.
29. The Court faulted the Auctioneer for proclaiming and selling items including stock of business, tables, chairs, cutlery including receipts and part of the record keeping and accounts books which were not properly proclaimed.
30. From the further amended Plaint, the 1st Respondent sought five prayers including the prayer for Kshs.2,000,000 for compensation for loss of damages of business, trauma and anguish. The Trial Court awarded Kshs.2,000,000 for general damages as trespass. The Appellant faults the Trial Court for awarding damages for trespass.
31. From the above analysis of the pleadings, the Court in its judgement on page 7 awarded the Kshs.2,000,000 as general damages for trespass a prayer not sought in the further amended claim. In the final disposition the Trial Court, awarded the Respondent Kshs.2,000,000 for loss and damages of business trauma and anguish. I am therefore inclined to agree with the Appellant and set this award aside as having not been proved.
Whether or not the Trial Court erred awarding the 1st Respondent special damages and general damages.
32. The Appellant faulted the Trial Court for awarding the 1st Respondent Kshs 3,657,165/= as special damages which he argued that the 1st Respondent was not entitled to. He was emphatic that special damages must be specifically pleaded and strictly proved by evidence and he cited Richard Okuku Oloo vs South Nyanza Sugar Co. Ltd [2013] eKLR, to emphasis on this point. He argued that the value of each goods and stock in the list of goods and stock was not specifically pleaded and the receipts failed to support the itemized goods and the amount claimed.
33. The Trial Court on page 6 of its Judgement found that Kshs 3,657,165/= in respect of special loss by the 1st Respondent would meet the ends of justice. The Appellant faults the Trial Court on grounds that special damages have to be pleaded and strictly proved. It was their case that the receipts which were brought to court did not support the itemized goods and the figure being sought.
34. From the proceedings the 1st Respondent informed Court that he was not served with the proclamation notice, he also informed Court that his goods were valued at close to Kshs.3,000,000 and that he had availed evidence.
35. The Appellant submits that their actions were within the Law and that Auctioneer instructed was duly authorized and that the proclamation notice was duly served. They made reference to page 39 of the record of appeal showing the proclamation. It’s their argument that the 1st Respondent has not demonstrated how the auctioneers acted outside the law. The Appellant despite the above averments has not in this Appeal not proved that it complied with rule 6,8,11 and 12 of the Auctioneer Rules. In my view the onus is on the Appellant to demonstrate compliance with the Rules.
36. From my study of this Appeal whereas the Appellant faults the Trial Court for awarding the Kshs 3,657,165/=, they were not able to demonstrate that the amount is not accurate. On the hand the Respondent availed evidence at the Trial Court and satisfied the Court that it deserved those order. The 1st Respondent in my view on a balance of probability was able to demonstrate that they are entitled to this prayer. In any event the Appellant was not able to prove that indeed it did not proclaim and sale items including stock of business, part of record keeping and account books. I am satisfied that the Trial Court was right in awarding the award above in lieu of the evidence tendered by the 1st Respondent.
37. The principles for interfering with an award of damages are well settled. In Kemfro Africa Limited t/a Meru Express Service Gathogo Kanini -vs- A M Lubia and Olive Lubia [1982-88] 1 KAR 727 it was observed that an appellate Court should not interfere with a trial Court’s discretion in making awards unless it is satisfied that the trial Court took into account an irrelevant factor, failed to take into account a relevant one or that the amount awarded is so inordinately low or high that it must represent a wholly erroneous estimate of the damage.
38. In support of the above findings, I place reliance in Court of Appeal decision in Antony Francis Wareham t/a AF Wareham & 2 others v Kenya Post Office Savings Bank [2004] KECA 166 (KLR) on the issue of burden of proof held as follows:
“Having done so we are impelled to state unequivocally that in our adversarial system of litigation, cases are tried and determined on the basis of the pleadings made and the issues of fact or law framed by the parties or the Court on the basis of those pleadings pursuant to the provisions of order XIV of the Civil Procedure Rules. And the burden of proof is on the plaintiff and the degree thereof is on a balance of probabilities. In discharging that burden, the only evidence to be adduced is evidence of existence or non-existence of the facts in issue or facts relevant to the issue. It follows from those principles that only evidence of facts pleaded is to be admitted and if the evidence does not support the facts pleaded, the party with the burden of proof should fail…”
Final orders:
39. I set aside the award of Kshs.2,000,00 awarded as loss and damages of business, trauma and anguish.
40. I affirm the award of Kshs.3,657,165/=
41. The Order (e) of the Judgement of the Trial Court is affirmed.
42. Each party to bear its costs.
DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft online platform on this 5th day of August 2026.
HON.LEPARASHAO PATRICIA
JUDGE
Judgment virtually delivered in the presence of:
No appearance for the Appellant.
Gatheru Learned Counsel for the 1st Respondent
Michael – Court Assistant.
1. In his decision of 26th June 2025, the Learned Trial Magistrate, allowed the 1st Respondent’s claim and entered judgment in his favour against the Appellant and the 2nd Respondent jointly and severally and ordered that the eviction and auction were unlawful, that the Appellant and the 2nd Respondent acted in contempt of court, they were ordered to repay the 1st Respondent the proclaimed items estimated at Kshs 3,657,165/= together with interest at court rates, compensation for loss of damages to a sum of Kshs 2,000,000/= together with interest at court rates, the Appellant, the 1st and 2nd Respondents were ordered to take account of any rent arrears which was to be deducted from any amount or proceeds auctioned from the proclaimed stock in the sum of Kshs 350,000/= and costs of the suit was awarded to the 1st Respondent.
2. Being aggrieved by the said decision, the Appellant herein filed a Memorandum of Appeal dated 23rd July 2025. He relied on ten (10) Grounds of Appeal.
3. His written submissions were dated 3rd December 2025 and his supplementary submissions were dated 8th April 2026. The 1st Respondent’s submissions were dated 16th February 2026. The 2nd Respondent did not participate in this appeal. The Judgment herein is, therefore, based on the said written submissions by the Appellant and the 1st Respondent which parties relied upon in their entirety.
Analysis of the Case
4. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify. This was stated in the case of Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect.
5. Having looked at the Grounds of Appeal and the parties’ written submissions, it appeared to this court that the issues that had been placed before it for determination were as follows: -
a. Whether or not the Trial Court erred holding that the auction was unlawful, and;
b. Whether or not the Trial Court erred awarding the 1st Respondent special and general damages.
Whether or not the Trial Court erred holding that the auction was unlawful
6. The Appellant invoked Section 3(1) of the Distress for Rent Act (hereinafter referred to as the Act) to emphasis that a landlord had a right to recover the owed rent by levying distress provided that distress was not illegal. He asserted that the Trial Court held that proclamation notice was not served upon the 1st Respondent yet the same was filled in court by the 1st Respondent.
7. He submitted that the orders the Trial Court relied on dated 13th October 2021 issued by Hon. Selina Muchungi had lapsed according to the ruling of Hon. Selina Muchungi dated 22nd April 2022 hence, it was improper for the Trial Court to have concluded that the orders were still in force at the time the proclamation was undertaken. He maintained that there were no court orders in place at the time the good were carried away and, therefore, the Trial Court erred concluding that the distress was unlawful.
8. He argued that the 1st Respondent admitted to be in rent arrears therefore, the Appellant’s right for distress for rent which was a remedy available to him could not amount to infringement of the right to property. He maintained that due procedure was followed in accordance to Auctioneers Act thus the lawful proclamation of goods in execution of a lawful debt did not violate Article 40 of the Constitution.
9. In his supplementary submissions, he maintained that the proclamation notice was served upon the 1st Respondent and which was filed by the 1st Respondent and that the filing was conclusive proof that it was served. Further, the filing of the application dated 8th October 2021 by the 1st Respondent to stop auction was also proof that the proclamation notice was served. He was emphatic that the 1st Respondent’s conduct was unequivocal acknowledgment of service and in this regard, he cited Omondi vs Kassam & another [2024] KEHC 10703 (KLR). He also maintained that there were no subsisting orders when the goods were proclaimed on 4th November 2021 hence the Appellant could not be held to be in contempt of orders that had already lapsed.
10. As to whether there was need to use auctioneers, he stated that the 1st Respondent admitted to owing a substantial amount in rent arrears hence he had a right to levy distress for rent pursuant to Section 3(1) of the Act and to instruct auctioneers. He argued that since the 1st Respondent admitted to be in arrears, this disentitled him from challenging a lawful distress and he cited Nova Innovators Limited vs Davani Limited; Mayfair Auctioneers [2025] KEBPRT 415 (KLR). He also invoked Section 15 of the Act to emphasis that even though there were irregularities in the manner of sale, which he denied, the same would not render the entire distress unlawful.
11. On his part, the Respondent submitted that the proclamation notice was not served pursuant to Rule 12 of the Auctioneers Rules, Legal Notice No. 120 of 1997 and he placed reliance on Telkom Kenya Ltd vs John Ochanda (suing on behalf of 996 former employees of Telkom Kenya Ltd) [2014] eKLR, where the court opined that statutory procedure were to be adhered to where rights were at stake.
12. He asserted that he had filed an application seeking to restrain auction which application was pending and had preservatory orders and defiance of the same constituted contempt of court. He placed reliance on the case of Econet Wireless Kenya Ltd vs Minister for Information & Communication of Kenya & another [2005] KEHC 1767 (KLR) where court emphasised on importance of complying with court orders. He pointed out that the Appellant and the 2nd Respondent were aware of the pendency of the court proceedings and they therefore violated the principle of sub judice and undermined the authority of the court.
13. He submitted that there was no justification to use auctioneers since the Appellant had legal recourse in form of distress for rent under the Act. He claimed that the items that the 2nd Respondent took were not properly proclaimed pursuant to Rules 6, 8, 11 and 12 of the Auctioneers Rules and PW1 and PW2 also confirmed that no notice was given and due process was not followed.
14. As to violation of his right to property pursuant to Article 40 of the Constitution, he claimed that Appellant’s actions amounted to arbitrary deprivation of property without lawful cause and he cited Isaac Gathungu Wanjohi & another vs Attorney General & 6 others [2021], where the court stated that no person was to be deprived of property except in accordance with the law. He pointed out that the Appellant failed to adduce evidence of the goods sold and proceeds realized which amounted to lack of accountability and which constituted arbitrary deprivation of property.
15. A perusal of the record showed that through a further amended plaint dated 8th June 2023, the 1st Respondent moved the Trial Court seeking for orders for return of proclaimed stock, equipment, items and his property or repayment of the proclaimed items amounting to Kshs 3,657,165/=, compensation for loss and damages of business, trauma and anguish amounting to Kshs 2,000,000/=, and order directing him and the Appellant to take accounts of any rent arrears and the same be deducted from the proceeds of proclaimed items and costs of the suit.
16. He averred that vide a lease agreement dated 10th September 2018, the Appellant leased to him the premises on LR 36/11/22 for purposes of a bar and restaurant. He stated that the business was affected by Covid 19 restrictions and the Appellant granted him rent rebate of Kshs 270,000/-. He further averred that he fell into arrears and when the Appellant threatened to auction his business, he moved to court and obtained an order on 13th October 2021 restraining the Appellant and the 2nd Respondent from levying distress, evicting him or interfering with his business. He claimed that on 4th November 2021, the Appellant accompanied by police officer seized all the stock and items in his business premises and learnt later they were effecting a proclamation order which was never served upon him. He also averred that the seizure of his items was in contempt of the court order issued on 13th October 2021.
17. The Appellant filed a defence statement dated 13th June 2023 where he denied the contents of the further amended plaint and averred that the 1st Respondent had admitted to be in arrears hence distress for rent was proper. He also denied being served with the orders and claimed that distress for rent was carried on 4th November 2021 when the said orders had lapsed. He also denied the value of the proclaimed items as was alluded by the 1st Respondent.
18. The matter proceeded for hearing, Joseph Kariuki (hereinafter referred to as PW1) adopted his written statement and testified that he was the manager at the Appellant’s bar. He also stated that a group of people accompanied by police officers went to the bar and took stock. He testified he did not see any order or document and he maintained on cross examination that he was not served with a proclamation notice.
19. The 1st Respondent testified as PW2 and he stated that he owed the 1st Respondent rent arrears amounting to Kshs 740,000/=. He claimed that the stock was worth Kshs 3,000,000/= while the fixtures were worth Kshs 4,000,000/=. He admitted on cross examination that he was not paying rent at the time and he had rent arrears of Kshs 999,000/= excluding the deposit and rebate. He further stated that according to the agreement, the landlord was at liberty to levy distress in case of default. He claimed that no meeting was called to highlight on rent arrears. He testified that he obtained orders to restrain the distress which he served but the said orders lapsed on 28th October 2021 while the distress was on 4th November 2021. He also stated that the orders were extended by the Judge. He stated that he was forcefully evicted and he testified on Re-examination that he was not served with a proclamation notice.
20. The Appellant on his part adopted his written statement dated 23rd October 2023 where he claimed that from September 2018 to June 2019, the 1st Respondent never paid the rent. He also stated that the rent rebate was conditional that the outstanding owing rent was paid. He further stated that he was not served with a court order and only received a message from the judiciary stating that a case had been filed and he was also informed by his advocate that the 1st Respondent had filed a suit restraining him from evacuating him from the premises which orders had lapsed by the time distress for rent was levied.
21. He testified on cross examination that the 1st Respondent was supposed to pay rent as he was renovating the premises. That he had instructed auctioneers and he was told that the orders including the proclamation were dropped at the premises but he declined to sign. He stated that the stock that was taken was around Kshs 180,000/= and it was not true that the 1st Respondent had paid Kshs 700,000/= during Covid. He claimed that what was outstanding was Kshs 995,000/= and not Kshs 350,000/=.
22. From the evidence on record there were no stay orders in place when the auction took place. From the record of appeal on page 149 there is a ruling which explained when the orders had lapsed which was on 28th October 2021 and by the time the goods were proclaimed on 4th November 2021 no orders were in place.
23. There is no order availed before Court to show that there were subsequent orders staying any action. The Trial Court’s finding that there were stay orders is not based on any evidence. The Ruling dated 22nd April 2022 on page 149-155 sets the record straight.
24. Having found that there were no Court Order stopping the auction, the next issue is was the law followed. The trial Court found that the landlord failed to follow due process. The trial Court faulted the landlord for failing to follow due process in levying distress for rent.
25. As to whether the 1st Respondent was entitled to general damages of Kshs 2,000,000/=,the Appellant submitted that trespass was not pleaded and was not a cause of action and prayer for general damages for trespass had not been made. To this end, he cited Caltex Oil (Kenya) Limited vs Rono Limited [2016] where the court stated that if a party wished the court to determine or grant a prayer, the same was to be specifically pleaded and proved.
26. He claimed that the 1st Respondent had prayed for Kshs 2,000,000/= as damages for loss of business, trauma and anguish which were special damages in nature and which needed to be proved and since there was no evidence for such loss, he was not entitled to the award.
27. The 1st Respondent did not submit on this issue.
28. The 1st Respondent testified that he had filed receipts for some of the items he had bought while the other documents were carried away. He had bought the cement and receipts were attached. He had also bought the speakers. He also stated that he was seeking Kshs 3,000,000/= for investment and that he had attached some documents.
29. The Court faulted the Auctioneer for proclaiming and selling items including stock of business, tables, chairs, cutlery including receipts and part of the record keeping and accounts books which were not properly proclaimed.
30. From the further amended Plaint, the 1st Respondent sought five prayers including the prayer for Kshs.2,000,000 for compensation for loss of damages of business, trauma and anguish. The Trial Court awarded Kshs.2,000,000 for general damages as trespass. The Appellant faults the Trial Court for awarding damages for trespass.
31. From the above analysis of the pleadings, the Court in its judgement on page 7 awarded the Kshs.2,000,000 as general damages for trespass a prayer not sought in the further amended claim. In the final disposition the Trial Court, awarded the Respondent Kshs.2,000,000 for loss and damages of business trauma and anguish. I am therefore inclined to agree with the Appellant and set this award aside as having not been proved.
Whether or not the Trial Court erred awarding the 1st Respondent special damages and general damages.
32. The Appellant faulted the Trial Court for awarding the 1st Respondent Kshs 3,657,165/= as special damages which he argued that the 1st Respondent was not entitled to. He was emphatic that special damages must be specifically pleaded and strictly proved by evidence and he cited Richard Okuku Oloo vs South Nyanza Sugar Co. Ltd [2013] eKLR, to emphasis on this point. He argued that the value of each goods and stock in the list of goods and stock was not specifically pleaded and the receipts failed to support the itemized goods and the amount claimed.
33. The Trial Court on page 6 of its Judgement found that Kshs 3,657,165/= in respect of special loss by the 1st Respondent would meet the ends of justice. The Appellant faults the Trial Court on grounds that special damages have to be pleaded and strictly proved. It was their case that the receipts which were brought to court did not support the itemized goods and the figure being sought.
34. From the proceedings the 1st Respondent informed Court that he was not served with the proclamation notice, he also informed Court that his goods were valued at close to Kshs.3,000,000 and that he had availed evidence.
35. The Appellant submits that their actions were within the Law and that Auctioneer instructed was duly authorized and that the proclamation notice was duly served. They made reference to page 39 of the record of appeal showing the proclamation. It’s their argument that the 1st Respondent has not demonstrated how the auctioneers acted outside the law. The Appellant despite the above averments has not in this Appeal not proved that it complied with rule 6,8,11 and 12 of the Auctioneer Rules. In my view the onus is on the Appellant to demonstrate compliance with the Rules.
36. From my study of this Appeal whereas the Appellant faults the Trial Court for awarding the Kshs 3,657,165/=, they were not able to demonstrate that the amount is not accurate. On the hand the Respondent availed evidence at the Trial Court and satisfied the Court that it deserved those order. The 1st Respondent in my view on a balance of probability was able to demonstrate that they are entitled to this prayer. In any event the Appellant was not able to prove that indeed it did not proclaim and sale items including stock of business, part of record keeping and account books. I am satisfied that the Trial Court was right in awarding the award above in lieu of the evidence tendered by the 1st Respondent.
37. The principles for interfering with an award of damages are well settled. In Kemfro Africa Limited t/a Meru Express Service Gathogo Kanini -vs- A M Lubia and Olive Lubia [1982-88] 1 KAR 727 it was observed that an appellate Court should not interfere with a trial Court’s discretion in making awards unless it is satisfied that the trial Court took into account an irrelevant factor, failed to take into account a relevant one or that the amount awarded is so inordinately low or high that it must represent a wholly erroneous estimate of the damage.
38. In support of the above findings, I place reliance in Court of Appeal decision in Antony Francis Wareham t/a AF Wareham & 2 others v Kenya Post Office Savings Bank [2004] KECA 166 (KLR) on the issue of burden of proof held as follows:
“Having done so we are impelled to state unequivocally that in our adversarial system of litigation, cases are tried and determined on the basis of the pleadings made and the issues of fact or law framed by the parties or the Court on the basis of those pleadings pursuant to the provisions of order XIV of the Civil Procedure Rules. And the burden of proof is on the plaintiff and the degree thereof is on a balance of probabilities. In discharging that burden, the only evidence to be adduced is evidence of existence or non-existence of the facts in issue or facts relevant to the issue. It follows from those principles that only evidence of facts pleaded is to be admitted and if the evidence does not support the facts pleaded, the party with the burden of proof should fail…”
Final orders:
39. I set aside the award of Kshs.2,000,00 awarded as loss and damages of business, trauma and anguish.
40. I affirm the award of Kshs.3,657,165/=
41. The Order (e) of the Judgement of the Trial Court is affirmed.
42. Each party to bear its costs.
DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft online platform on this 5th day of August 2026.
HON.LEPARASHAO PATRICIA
JUDGE
Judgment virtually delivered in the presence of:
No appearance for the Appellant.
Gatheru Learned Counsel for the 1st Respondent
Michael – Court Assistant.