ABUBAKAR A.H. MOHAMED v AHMED MOHAMMED AL MOODY & 2 others [2010] KECA 380 (KLR)
The bottom line
#Kenya's Court of Appeal ruled a landlord liable for auctioneers selling a tenant's goods too early, and held limitation defences must be specifically pleaded.
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 appellant's suit was time-barred where limitation was not specifically pleaded and no preliminary objection was raised
- 2.Whether the filing of an earlier suit (CM Civil Case No. 4727 of 1996) had any bearing on the issue of limitation
- 3.Whether the learned Judge's assessment of the appellant's evidence on the goods distrained was fair
- 4.Whether the distress for rent was unlawful because the goods were removed and sold on the same day contrary to section 4 of the Distress for Rent Act
- 5.Whether the 1st respondent was vicariously liable for the unlawful acts of the 2nd and 3rd respondents as his agents
- 6.What quantum of damages the appellant was entitled to
Key legal issues
#Pleading of limitation
It was wrong for the 1st respondent to raise limitation for the first time in final submissions; limitation must be specifically pleaded under Order VI Rule 4 of the Civil Procedure Rules.
Order VI Rule 4 requires a party to plead specifically any relevant statute of limitation making a claim not maintainable. The defence pleaded no limitation point and no preliminary objection on competency was taken at any stage. Raising it only in final submissions took the unrepresented appellant by surprise, and the learned Judge erred in upholding it without considering that an earlier suit had been filed in 1996.
Unlawful distress and vicarious liability
Removal of distrained goods on the same day, contrary to section 4 of the Distress for Rent Act which requires goods to be left on the premises for fourteen days, rendered the distress unlawful; the landlord who instructed the agents was vicariously liable.
Section 4 of the Distress for Rent Act required the goods to be left locked in the appellant's shop for fourteen days; there was no evidence of a request by owner or landlord permitting earlier removal. The 1st respondent admitted instructing the 2nd and 3rd respondents, making them his agents, so their unlawful conduct in carting away and selling the goods attracted the landlord's vicarious liability.
Assessment of quantum
Judgment substituted for Ksh.1,500,000/- (value of goods as pleaded and evidenced) less the Ksh.21,000/- arrears admitted; unpleaded daily damages and the cash claim rejected.
The appellant pleaded the value of the goods at Ksh.1.5 million and repeated it in evidence; the respondents never testified or produced an inventory, so their defence allegations were unproven. The Ksh.100,000/- cash claim and the Kshs.2000/- per day claim were neither pleaded nor proved and were rejected.
Effect of an earlier suit on limitation
The learned Judge erred in deciding limitation without considering the earlier 1996 suit filed in the Chief Magistrate's Court at Mombasa.
The appellant had filed CM Court Case No. 4727 of 1996 immediately after the distress, seeking the same prayers, before filing the High Court suit. The trial judge's limitation ruling made no mention of this admitted fact nor of its potential bearing on the limitation analysis, vitiating that part of the decision.
Legal principles established
#- A party who wishes to rely on the statute of limitation to defeat a claim must specifically plead it; limitation cannot be sprung on an opponent at the close of the case.
- A landlord is vicariously liable for the unlawful acts of his agents instructed to levy distress for rent, and an unlawful removal of distrained goods on the day of distress renders the distress unlawful.
- Allegations in a defence by parties who do not testify remain no more than allegations and cannot displace a plaintiff's pleaded and evidenced claim.
Court orders
#- 1.Appeal against the 1st respondent allowed
- 2.Judgment and decree of the superior court dismissing the appellant's case with costs set aside
- 3.Judgment entered for the appellant against the 1st respondent for Ksh.1,500,000/- less Ksh.21,000/- admitted as arrears of rent
- 4.Claim for damages at Kshs.2000/- per day rejected
- 5.Costs of the appeal and of the suit in the superior court awarded to the appellant
- 6.No order made against the deceased 2nd respondent or his estate
- 7.No separate order made in respect of the 3rd respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- H.C.C.C. No. 551 of 1999
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction over the High Court (statutory appellate jurisdiction; no specific constitutional provision stated in the judgment)
Relief refused
#Damages at Kshs.2000/- per day from August 1996
Neither pleaded nor proved
Compensation of Ksh.100,000/- for cash allegedly stolen
Appellant did not show where the money was kept or how it came to be in the shop
Costs
Costs of the appeal and of the suit in the superior court awarded to the appellant against the 1st respondent
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.
The issue was not pleaded and no preliminary objection was taken regarding the competency of the appellant's claim. It was, accordingly, wrong for the 1st respondent's counsel to as it were, spring that issue upon the appellant at the very final-end of the case.
The 2nd and 3rd respondents in acting the way they did, acted unlawfully and that rendered the distress unlawful. The learned Judge did not consider that aspect of the matter.
The 1st respondent was clearly liable to the appellant for the unlawful acts of his agents. The 1st respondent benefited from the unlawful actions of his agents and he must be vicariously liable to the appellant.
The allegations in their respective defences remained no more than allegations.
we allow the appellant's appeal, set aside the judgment and decree of the superior court dismissing the appellant's case with costs and substitute therefor a judgment for the appellant in the sum of Ksh.1,500,000/- being the value of the goods taken from his shop less the Ksh.21,000/- which he admitted owing as arrears of rent.
For the avoidance of any doubt, this judgment is entered only against the 1st respondent. Those shall be our orders in the appeal.
Issues in the judgment
#The judgment contains inconsistent dates for the distress and filing: the plaint allegedly stated 17th September 1996 as the distress date while evidence said 17th August 1996, and the text at one point states the suit was filed on 8th December, 1996 while elsewhere it is stated as 8th December, 1999 (the latter being essential to the trial court's limitation finding).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "ABUBAKAR A.H. MOHAMED v AHMED MOHAMMED AL MOODY & 2 others [2010] KECA 380 (KLR)", Case Analysis (2010). Civil Appeal 209 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/380/eng@2010-03-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.