Warda Salim v Shabir Hatim [2018] KECA 397 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a tenant's appeal over Ksh.40,000 eviction damages, confirming you must prove your losses with evidence to recover more.
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 Judge erred in assessing damages of Ksh.40,000 while relying on a consent order that had allegedly been set aside
- 2.Whether the appellant proved her claim for damages for unlawful eviction and was entitled to return of the goods listed as taken by the respondent
- 3.Whether the appellant was entitled to costs of the appeal and of the courts below as the successful party
Key legal issues
#Scope of a second appeal under Section 72 and 79D of the Civil Procedure Act
A second appeal turns only on points of law; the Court is bound by concurrent findings of fact of the courts below
The Court invoked the settled principle from Stephen Muringi v R that where appeal rights are confined to questions of law, the appellate court must loyally accept findings of fact of the lower courts and not treat findings of fact as holdings of law or mixed findings, unless no reasonable tribunal could have reached that conclusion on the evidence.
Whether the award of Ksh.40,000 damages based on a consent order allegedly set aside was erroneous
The award was not perverse; the Judge relied on the evidence on record, and the appellant failed to prove the value of the goods with receipts or valuations
Both courts below agreed the appellant adduced no purchase receipts or evidence of the value of the goods. The burden of proof lay on her. The Judge's assessment, drawn from the consent figure and equating to about five months' rent, was a reasonable exercise of discretion, and the Court would not substitute its own figure absent an error of principle.
Whether the order for return of goods limited to 'if any' was defective
The order was proper because the goods allegedly carted to a store were distinct from those lawfully proclaimed by auctioneers
The appellant's listing of items in the pleadings did not rebut the reality that some goods were lawfully proclaimed for rent arrears. The Judge's conditional order for return of goods still in the respondent's possession was consistent with the evidential uncertainty, and the appellant bore the burden of identifying what was wrongly taken.
Costs of the appeal and below
The Court declined to interfere with the Judge's discretion on costs and made no award, wishing not to set the agent of the landlady and the tenant against each other
Although the Judge gave no reasons for declining costs despite the appellant's partial success below, the Court held that costs are discretionary and found no basis to interfere. On its own appeal, the Court similarly declined costs given the relationship between the parties.
Legal principles established
#- On a second appeal confined to questions of law, the Court of Appeal must accept the findings of fact of the lower courts and interfere only where no reasonable tribunal could have reached the conclusion on the evidence
- An appellate court will interfere with a trial judge's assessment of damages only where an error of principle is shown, or where the award is so high or so low as to be a wholly erroneous estimate
Court orders
#- 1.The appeal is dismissed
- 2.Each party to bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Malindi
- H.C.A No 5 of 2015
- Jurisdiction invoked
- Section 72 read with Section 79D of the Civil Procedure Act (second appeal on points of law)
Relief refused
#Setting aside or enhancing the award of Ksh.40,000 general damages for unlawful eviction
The assessment was not perverse; the appellant bore the burden of proof, produced no receipts or valuation of the goods, and the Judge relied on the evidence on record, including the consent figure and rent arrears
Order for return of all goods listed by the appellant
The Judge's order that goods be returned 'if any' was appropriate since it was unclear which goods were carted away as opposed to lawfully proclaimed
Costs of the appeal and of the courts below
The Court declined to disturb the Judge's discretion on costs and chose not to set the parties against each other
Costs
The appeal is dismissed and each party to bear their own costs
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.
where a right of appeal is confined to questions of law only, an appellate court has loyally to accept the findings of fact of the lower court(s) and resist the temptation to treat findings of fact as holdings of law or mixed findings of fact and law
The Court will only interfere where an error of principle by the trial judge is shown, or where the damages awarded are so high or so low that they must be wholly erroneous estimate and an error of principle must be inferred.
For the aforesaid reasons we find no merit in this appeal, we are also inclined not to award costs as we do not wish to set these parties who were an agent of the land lady and the tenant respectively against each other. The appeal is dismissed and each party to bear their own costs.
Issues in the judgment
#The judgment gives inconsistent dates for the consent order and the amended plaint: the High Court quoted a consent of 3rd August 2007 (and within the quotation 3.8.2012), while the Court of Appeal refers to an amended plaint of 3rd September 2011 in one place and 3rd September 2013 in another
The High Court judgment as quoted contains an apparent internal contradiction between finding the eviction wrong in procedure and agreeing it was procedural
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Warda Salim v Shabir Hatim [2018] KECA 397 (KLR)", Case Analysis (2018). Civil Appeal No 12 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/397/eng@2018-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.