1.The Appellant herein filed a suit against the Respondents dated 17th November, 17 seeking for the following reliefs:1)A declaration order to be issued declaring impugned execution for distress for rent, termination of tenancy relationship between the 1st (respondent and the appellant and the subsequent eviction of the plaintiff by the defendant from the demised premises as illegal and unlawful.(2)A mandatory order be issued compelling the respondents to release to the appellant all his movable property illegally impounded and seized from the demised premises in distress for rent.(3)General damages for the unlawful termination of tenancy relationship and eviction of the appellant from the demised premises.(4)General damages for trespass upon the appellant’s goods and property by the respondents.(5)General damages for inconvenience, suffering and harm.(6)Costs of the suit together with interest.
2.The trial court made a judgment that the evidence tendered by the appellant showed that there was no tenancy agreement between the appellant and the 1st respondent hence the issue of distress for rent did not arise. It was the learned Magistrate`s finding that the appellant had failed to show the kind of special relationship that existed between him and the 1st respondent.
3.The learned trial Magistrate was also of the view that the Appellant should opt for a criminal case and sue the 1st respondent for stealing his household goods and other properties. The magistrate consequently found that the appellant had not proved his case on a balance of probabilities and dismissed the claim with orders for each party to bear its own costs.
4.Being aggrieved by the judgment, the Appellant filed a memorandum of appeal dated the 2/9/2019 raising the following grounds of appeal: -
The case for the Appellant
5.It was the Appellant’s case that in or around December 2013, he rented a dwelling house from the 1st Respondent in Kangemi area of Nairobi at a monthly rental charge in the sum of Ksh.7,000/=. That the tenancy relationship agreement was never reduced into writing but it was agreed orally between him and the 1st respondent that the rent would be payable by the 15th of every month to the 1st Respondent`s rent collection agent, the 2nd Respondent. The same was to be paid into a bank account provided by the 2nd Respondent.
6.The Appellant testified that he dutifully obliged to the terms of the tenancy relationship despite constant disruption of his peaceful and quite possession of the premises by the 2nd respondent who allegedly threatened to evict him for late payment of rent while insisting that the rent was payable on the 5th of every month. That he had paid the rent for November 2016 on the 15th of October 2016 through the bank.
7.It was the Appellant’s testimony that on 3rd November 2016 without having been given prior notice, the 2nd respondent acting on the instructions of the 1st defendant unlawfully and without notice broke into his house in his absence, seized and carried away his household goods and personal belongings and evicted him from the premises. He produced an inventory of what was taken from his premises by the respondents.
8.It was the Appellant’s case that the said action by the Respondents amounted to breach of the tenancy agreement, trespass upon his property and unlawful eviction.
9.The Respondents did not enter appearance nor file a defence, consequent to which an interlocutory judgment was entered in favour of the appellant. The matter proceeded to formal proof hearing on 26/3/2019 wherein the Appellant reiterated the evidence as stated above.
10.This court gave directions for the appeal to be canvassed by way of written submissions. The Appellant filed his submissions but the respondents did not file any nor did they attend court despite them being served.
11.The Appellant submitted that the jurisdiction of the Appellate court is to reappraise all the evidence and matters of law and re-examine the same in a fresh and exhaustive scrutiny and arrive at its own independent conclusion. In support, he cited section 78 of the Civil Procedure Act which provides for the role of the first appellate court. The Appellant also cited the case of Peter M Kariuki vs Attorney General  eKLR and the case of Oluoch Eric Gogo v Universal Corporation Limited  eKLR.
12.The Appellant submitted that the trial Magistrate made a legal mistake by evaluating the Appellant's case and the presented evidence using a higher standard of proof than what is mandated by the law. As a result, the Appellant contends that the magistrate reached an incorrect decision.
13.The Appellant argued that since the Respondents did not defend the case, the Appellant's evidence remained unchallenged. The appellant faulted the trial Magistrate for concluding that the Appellant had failed to meet the necessary standard of proof in establishing his case. He cited the case of Safarilink Aviation Limited v Trident Aviation Kenya Limited & Another  eKLR where it was held that:
14.The Appellant also cited the case of Interchemie E. A. Limited Vs Nakuru “Veterinary Centre Limited  eKLR where Mbaluto ,J. held that:
15.It was the appellant’s submission that the trial magistrate fell into error by misapprehending the oral testimony of the appellant when she reached her conclusion in the impugned judgment.
16.The appellant argued that based on the oral testimony and evidence presented during the hearing, he had successfully presented a case for damages due to unlawful termination of tenancy and subsequent eviction by the respondents. Additionally, the appellant contended that the distress for rent claimed by the respondents was illegal as it violated the proper procedure outlined under sections 4 and 16 of the Distress for Rent Act, Chapter 293 of the Laws of Kenya.
17.The appellant cited the Halsbury’s Laws of England 4th Edition at pages 543 to 551 on the common law principles regarding illegal or irregular distress and the remedies therein where the authors state:-
18.The Appellant also relied on the case of Gusii Mwalimu Invastment Co. Ltd & 2 Others v. Mwalimu Hotel Kisii Ltd. Civil Appeal No. 160 of 1995 (UR) where it was held:-
19.On the issue of quantum, the Appellant relied on the following cases where general damages were awarded for unlawful distress for rent and unlawful eviction:
- Ronald Nguru Gathara & another v Cliff Mbala, Milimani HCCA No.669 of 2011, (2015) eKLR where the High Court upheld an award of Ksh.400,000/- in general and punitive damages for unlawful distress for rent.
- Nthaka Limited v National Social Security Fund, Msa HCCC No. 332 of 2002, (2006) eKLR where the court awarded Ksh.250,000/- in general damages for unlawful eviction.
- Lucy Njeri Ngunjiri & 6 others v Anthony Kimeu & 3 others, Milimani ELC Appeal No.72 of 2016, (2018) eKLR where the court on appeal found that the intention of the Respondents was not to levy distress but to evict the appellants as some of the appellants did not have rent arrears. The court observed that the eviction was carried out in a callous manner. The court awarded each of the appellants Ksh.500,000/-in general damages for unlawful eviction and Ksh.200,000/- being punitive damages.
Analysis and Determination
20.It is settled law that the responsibility of the first appellate court is to reassess the evidence presented in the lower court, considering both legal aspects and factual elements, and subsequently reach its own determinations and conclusions. This approach was exemplified in the case of Peters v. Sunday Post Limited  EA 424, as decided by the Court of Appeal for East Africa. The standard of review in appeal cases can be summarized by three interrelated principles:(1)First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;(2)In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; and(3)It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.
21.From the above decision which is in line with section 78 of the Civil Procedure Act, it is evident that this court is not obligated to adhere strictly to the factual findings of the trial court. Instead, it has the authority to deviate from those findings if it is evident that the trial court either overlooked specific circumstances or probabilities or if the assessment of a witness's demeanor is contradictory to the overall evidence presented. In such cases, this court has the discretion to reach its own conclusions based on a comprehensive evaluation of the evidence.
22.I have carefully perused the record of appeal including the lower court`s pleadings and judgment. I have also considered the grounds of appeal and the parties’ respective rival submissions, taking into account case law and common law principles cited by the Appellant above. The main issues for determination in this appeal are:(1)Whether the Appellant had proved that a tenancy. agreement existed between him and the Respondents.(2)If the above issue is in the positive, whether the distress for rent was unlawful.(3)Whether the appellant was entitled to the reliefs sought.(4)Costs.
Whether tenancy relationship existed between the parties
23.It is trite law that the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the existence of a fact. That is the purport of section 107(1) of the Evidence Act (Chapter 80 of the Laws of Kenya), which provides:
24.The burden of proving whether a tenancy relationship existed between the appellant and the respondents rested with the appellant.
25.The standard of proof in cases is the legal standard to which a party who holds the burden of proof is required to prove his/her case. In civil cases, the standard of proof is on a balance of probabilities. Lord Denning in Miller v Minister of Pensions  2 ALL ER 372 held as follows on this standard:
26.In discharge of the burden of proof, the appellant stated that he entered into an oral tenancy relationship agreement with the 1st Respondent in 2013 which however was not reduced into writing. The appellant’s testimony under oath was never controverted by the respondents who did not enter appearance nor file a defence.
27.Courts in several authorities have stated that ex parte evidence is not automatic proof of a case. The Appellant is still required to prove their case on the required standard of balance of probabilities. In the case of Kenya Power & Lighting Company Limited vs Nathan Karanja Gachoka & Another  eKLR, the Court stated as follows:
28.Also in the case of Gichinga Kibutha vs Caroline Nduku (2018) eKLR, the Court held that:-
29.Similarly, in Janet Kaphiphe Ouma & Another vs. Marie Stopes International (Kenya) Kisumu HCCC No. 68 of 2007 Ali-Aroni, J. citing the decision in Edward Muriga Through Stanley Muriga v Nathaniel D. Schulter Civil Appeal No. 23 of 1997 held that:
30.In the instant case the Appellant in paragraph 7A of his amended plaint asserted that the respondents in the course of the interlocutory application which was filed simultaneously with the plaint, admitted to having distressed the appellant’s moveable properties and further undertook to continuously impound the appellant’s movable property until the alleged rent arrears were paid. This assertion by the appellant was not challenged by the respondent.
31.I have perused the ruling to the said interlocutory application dated 18/08/17 and noted that the respondents indeed admitted to distressing the appellant’s moveable property and undertook to release them upon payment of rent arrears of Ksh.21,000/-. The respondents in their replying affidavit to the said application also contended that at the time the rent was being distressed, the applicant was in rent arrears for three months.
32.Considering the pleadings, the evidence presented to the court and the legal authorities cited, I am convinced that the appellant successfully met the burden of proof and demonstrated, on a balance of probabilities, the existence of a tenancy relationship between him and the respondents. In my view, the trial magistrate erred in making a finding that no tenancy agreement existed between the parties. Since the evidence on the tenancy relationship was not controverted by the Respondents the only finding that a court could reach was in favour of the Appellant.
Whether distress for rent was unlawful
33.Having found that there was a tenancy relationship, I now turn to the issue of whether the said distress for rent was unlawful. To determine this issue, it is imperative for me to look at what constitutes illegality of distress for rent. The court of appeal in the case of Cyo Owaya vs. George Hannigton Zephania Aduda T/a Aduda Auctioneers & Another (2007) held that:The following are instances of illegal distress;
35.In the case of Ronald Nguru Gathara & another v Ronald Nguru Gathara  eKLR the court stated as follows:
36.From the evidence on record, the Respondent neither adduced evidence to establish that appellant was in arears nor controverted the Appellant’s evidence that he was not in arrears at the time of levying distress. Further, the Appellant’s evidence that he was not given the requisite notice of the said distress was also not controverted by the Respondent. I therefore find that the distress for rent by the Respondents was unlawful as it did not follow due procedure.I therefore proceed to declare that the act of distress by the Respondents was illegal.
Whether the appellant is entitled to the reliefs sought
37.Having found that the distress for rent was unlawful and amounted to constructive eviction, it is trite that a breach of the law ought to attract reprieve to the violated. In Mattarella Limited v Michael Bell & another  eKLR the court held as follows:
38.I have considered the authorities cited by the Appellant in regard to general damages for unlawful distress and eviction where awards ranging between Ksh.200,000/- and Ksh.500,000/- were made. It is however observed that in the case of Ronald Nguru Gathara & another v Cliff Mbala that was cited by the Appellant, the matter went up to the Court of Appeal where the court found that the case did not involve eviction from the premises. The court held that:The court reduced the award to Ksh.50,000/- being for intrusion into the respondent`s premises.
39.I have considered the award in the case of Power Pack Hydraulics Limited v Jacinta M. Ndegwa t/a Jarmat Enterprises Limited  eKLR where the court opined that it would have awarded Ksh.200,000/- in general damages for unlawful distress had the case been proved. In the case of Mureu v Karuga  eKLR, Musinga ag. J. (as he then was) awarded Ksh. 200,000/- in general damages for wrongful eviction and conversion. I t is to be noted that the decision in that case was made close to 20 years ago. Similarly, in the case of Nthaka Limited v National Social Security Fund, Msa HCCC No. 332 of 2002, (2006) eKLR that was cited by the Appellant where an award of Ksh.250,000/= was made, the decision was made about 17 years ago. The court has to have regard to inflation. Considering the circumstances of this case, I am of the view that a sum of Ksh.300,000/= would be reasonable compensation in damages for unlawful termination of tenancy relationship, unlawful distress and eviction and for trespass upon the appellant’s goods and property.
40.The upshot is that the appeal is allowed and the judgment of the lower court dismissing the Appellant`s claim is set aside. I thereby enter judgment for the Appellant against the Respondents, jointly and severally, and make the following orders:(1)a declaration order be and is hereby issued declaring the impugned execution of distress for rent, termination of tenancy relationship between the 1st Respondent and the Appellant and subsequent eviction of the Appellant by the Respondents from the demised premises as illegal and unlawful.(2)A mandatory order be and is hereby issued compelling the Respondents to release to the Appellant all his movable property impounded and seized from the demised premises as distress for rent.(3)The court awards the Appellant Ksh.300,000/- in general damages for unlawful termination of tenancy relationship, unlawful distress and eviction and for trespass upon the appellant’s goods and property.(4)The Appellant to have the costs of the suit in the appeal and at the lower court.