Owayo v Aduda t/a Aduda Auctioneers & another (Civil Appeal 2 of 2003) [2007] KECA 508 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that advocates and auctioneers who carry out illegal distress for rent can be ordered to pay substantial damages.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the respondents were liable to the appellant for carrying out an illegal levy of distress on the appellant's goods at his home when he was not the defaulting tenant and the house was not the premises in respect of which rent accrued
- 2.Whether the goods removed reflected the proclamation or included additional items
- 3.If liability was established, what quantum of damages the appellant was entitled to
Key legal issues
#Failure by the trial court to determine liability before considering damages
The learned Judge erred by addressing only whether the appellant had failed to mitigate, without determining whether the respondents were legally liable for the distress; liability must be established first.
The Court held that the question whether a party is entitled to damages presupposes that the other party is liable in law. The trial judge went straight to the appellant's failure to take remedial steps and never considered whether the levy of distress was legally tenable. That omitted 'the most important part of his judicial work', rendering the judgment gravely erroneous and liable to be set aside.
Whether the distress was statutorily time-barred
The distress was illegal because the rent arrears had been outstanding for over six years, contrary to section 8 of the Limitation of Actions Act, and the tenancy had been determined six years earlier, contrary to the proviso to section 5 of the Distress for Rent Act.
Section 8 of the Limitation of Actions Act bars distress to recover arrears of rent after six years from when they became due. Section 5 of the Distress for Rent Act permits post-termination distress only within six months of determination of the tenancy and during the tenant's possession. Here the tenant had left the premises six years before; the levy was therefore time-barred under both statutes.
Distress levied off the demised premises
The distress was illegal because it was levied on goods in the appellant's residential home rather than on the tenant's goods at the rented business premises in Homa Bay town; the Court adopted the principle in Kassamali Bhogadia v M.A. Nasser.
The premises in which Claris was tenant and in which the arrears accrued was Sonyaco's building in Homa Bay town. That was where, in law, distress should have been levied. The auctioneer instead levied on a different, residential building on Land Parcel No. 3603, Got Rabuor. Following a Ugandan High Court decision, the Court held such off-premises distress plainly illegal.
Non-compliance with the procedural requirements for levy and sale
The goods were proclaimed and removed on 2nd March 1999 and sold on 12th March 1999 without the required notice periods, rendering the removal and sale illegal under section 4(1) of the Distress for Rent Act.
The Court rejected the auctioneer's claim of a 26th February 1999 proclamation as unsupported by any document; all three proclamation copies bore the date 2nd March 1999. Removal before seven days had expired from proclamation, and sale before fourteen days as required by section 4(1), without any request to the appellant, made the entire distress and sale illegal.
Ownership of matrimonial household goods in a polygamous setting
Household properties in a wife's house are shared between husband and wife and are not the exclusive property of the wife; the distrained goods were jointly owned matrimonial property, so their levy was illegal.
The respondents argued that as a Luo polygamist the appellant must have gifted the household goods to his wife Claris. The Court held this has no basis in law: a husband shares with his wife whatever household properties are in the wives' houses, whether acquired jointly or by one spouse, and a wife cannot leave a matrimonial house with the furniture on the basis of exclusive ownership.
Quantum of damages for illegal distress
The appellant, having failed to strictly prove values, was awarded Ksh.300,000/= special damages, Ksh.400,000/= general damages for trespass to goods, and Ksh.10,000/= exemplary damages because the respondent acted recklessly as a lawyer.
No receipts were produced and the claim exceeded the goods in the proclamation, so the Court assessed special loss globally doing the best it could. Illegal distress being a trespass to goods, general damages were due. Because the respondent advocate, on whom Sonyaco relied for lawful advice, chose an obviously illegal approach knowing the consequences, exemplary damages were warranted.
Duties of a first appellate court
As the first and last appellate court, the Court is enjoined to revisit, analyse and evaluate the evidence afresh and reach its own conclusion, while making allowance for the trial court's advantage in seeing and hearing the witnesses.
Relying on Selle v Associated Motor Boat Co., the Court restated that an appeal from the High Court is by way of retrial: the appellate court must reconsider the evidence, evaluate it itself and draw its own conclusions, but is not bound by the trial judge's findings of fact where he failed to take account of particular circumstances or probabilities or where a demeanour finding is inconsistent with the evidence generally.
Legal principles established
#- A court must first establish liability before considering entitlement to damages, even if it ultimately dismisses the claim or awards no damages
- A trial judge must, even if minded to dismiss a suit, assess the quantum of damages he would have awarded had he found for the plaintiff on liability
- Distress for rent may not be levied to recover arrears of rent more than six years after the arrears became due, and where the tenancy has been determined it must be levied within six months of determination and during the tenant's possession
- Distress for rent must be levied on the demised premises; levying distress on goods in a different, residential, premises is illegal
- Household properties in a wife's house in a polygamous matrimonial home are jointly owned by husband and wife and cannot be treated as exclusively the wife's property
- An illegal distress is a trespass to goods entitling the owner to substantial damages even without proof of actual loss
- An advocate who instructs an auctioneer to carry out an illegal distress is liable to the owner of the goods
Court orders
#- 1.Appeal allowed and the judgment of the superior court set aside
- 2.Judgment entered for the appellant in the total sum of Ksh.710,000/= plus interest at court rates from 10th May 1999 (comprising Ksh.300,000/= special damages, Ksh.400,000/= general damages for trespass to goods and Ksh.10,000/= exemplary damages, each carrying interest at court rates from the date of filing of the suit until payment in full)
- 3.Costs of the appeal and of the superior court awarded to the appellant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya (superior court, Kisii)
- Not stated in the judgment
- Jurisdiction invoked
- First and last appeal to the Court of Appeal under the appellate framework applicable to superior court civil decisions (not expressly cited in the judgment)
Relief refused
#Special damages of Ksh.1,805,640/= as current replacement value of the goods
Appellant did not strictly prove the value of each item; receipts were not produced and the claim was not in consonance with the goods in the proclamation, so only a modest global award was made
Alternative claim of Ksh.1,517,640/= equivalent to purchase price of the goods
Not established by strict proof for the reasons above
Claim for goods alleged to have been removed beyond those in the proclamation
The appellant could not prove the additional items; the evidence of PW 2 was too general
Costs
Costs of the appeal and of the superior court awarded to the appellant
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Liability must first be established even if in the end no damages are awardable in law.
The law required the Judge even if he was minded to dismiss the suit, to consider the quantum of damages he would have awarded, had he made a finding on liability in favour of the appellant.
That, in effect means that even if the goods taken were those of Claris and taken from the right premises, still by virtue of that legal provision, the distress carried out by the auctioneer at the behest of the respondent was illegal as it was statutorily time barred.
The levy of distress to recover rent arrears for a business premises on a residential house was plainly illegal.
An illegal distress has always been a trespass and an action would always lie.
we find that the household properties in the house of Claris and the appellant as at the time the auctioneer visited that house were jointly owned by the appellant and his wife Claris as matrimonial household properties.
To conclude, the appeal is allowed and the judgment of the superior court is hereby set aside. We enter judgment for the appellant in the total sum of Ksh.710,000/= plus interest at court rates from 10th May 1999. We order that costs of the appeal and of the superior court be awarded to the appellant. Judgment accordingly.
Issues in the judgment
#The judgment gives the rent arrears figure inconsistently - the letter under the heading states Ksh.155,400/= while the body states Ksh.155,500/=
The bill of costs figures are internally inconsistent - the reproduced text states 'Ksh.28.000/=' and computes the daily rates as '1,000 day 1,000 night' yet totals '14 x 2000 = 28,000/='
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Owayo v Aduda t/a Aduda Auctioneers & another (Civil Appeal 2 of 2003) [2007] KECA 508 (KLR)", Case Analysis (2007). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/508/eng@2007-07-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.