Winerack (Sailors) v NW Realite Limited & 3 others (Tribunal Case 1001 of 2019) [2025] KEBPRT 378 (KLR) (20 August 2025) (Judgment)
Neutral citation:
[2025] KEBPRT 378 (KLR)
Republic of Kenya
Tribunal Case 1001 of 2019
Gakuhi Chege, Chair & J Osodo, Member
August 20, 2025
Between
Winerack (Sailors)
Tenant
and
NW Realite Limited
1st Respondent
Kenya Cargo Handing Services Limited
2nd Respondent
Haki Traders Auctioneers
3rd Respondent
Charles Mwangi Kamande t/a Chaka & Company Auctioneers
4th Respondent
Judgment
A. Introduction
1.This judgment relates to the amended plaint dated 14th November 2022 in which the Tenant/Applicant seeks declaratory orders, special damages of kshs. 4,048,190, compensation for loss of business for thirty-six (36) months, a permanent injunction and costs against the Respondents.
2.The dispute arises from acts alleged to have been committed by the Respondents on 15th January 2021, namely breaking into the Applicant’s premises on LR No. 209/378/10, Hurlingham Court, attaching, proclaiming, and auctioning goods despite subsisting injunctive orders of this Tribunal.
3.The Applicant has been a tenant of the suit premises since 17th May 2010 under a controlled tenancy which was renewed on 26th September 2017 for a further six-year term. Clause 21 of the lease provided for renewal on mutually agreed terms.
4.On 14th October 2019, the Tribunal issued interim orders of injunction restraining the Respondents from levying distress, attaching goods, or evicting the Applicant pending determination of the dispute.
5.On 15th January 2021, the 4th Respondent, acting on the 1st Respondent’s instructions, entered the suit premises, seized goods, fixtures, and fittings valued at kshs. 4,048,190, and subsequently advertised them for sale on 19th January 2021.
6.The Applicant claims that this act caused complete closure of the business for over thirty-six (36) months, leading to substantial loss of income and goodwill.
7.The Amended Plaint was filed on 14th November 2022, seeking the reliefs outlined above.
8.The Tenant’s Written Statement filed on 2nd July 2024 sets out a detailed payment history, the existence of a rental deposit of Kshs. 440,000, and alleges that the Respondents acted in contempt of court orders.
9.The list of documents filed on 10th June 2025 includes receipts, bank cheques, correspondence, and valuation reports supporting the claim.
10.The Written Submissions filed on 30th June 2025 argue that the Respondents’ acts were unlawful, citing Premchand Nathu v Land & Agricultural Bank of Kenya [1973] EA 145, Kenya Hotel Properties Ltd v Willesden Investments Ltd [2009] eKLR, and Giella v Cassman Brown [1973] EA 358.
11.The Respondents were duly served but failed to file any defence or submissions in response to the Amended Plaint.
B. Issues For Determination
12.The following issues fall for determination: -a.Whether the Respondents acted illegally in breaking into, attaching, proclaiming, and auctioning the Applicant’s goods.b.Whether the Applicant is entitled to compensation for the value of goods sold and loss of business for 36 months.c.Whether a permanent injunction should issue.d.Who should bear the costs?
C. Analysis Of The Issues & The Law Applicable
13.Section 15 of the Distress for Rent Act (Cap 293) provides that where distress is levied for rent which is not due or otherwise than in accordance with the Act, the person aggrieved is entitled to recover full compensation for the damage sustained.
14.Section 12(1)(i) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301) empowers the Tribunal to award compensation for loss or damage suffered by reason of unlawful termination of tenancy or unlawful interference.
15.In Kenya Cold Storage Ltd v Somes [1955] 22 EACA 202, it was held that distress must follow due process and unlawful levies amount to actionable trespass.
16.In Kobil Petroleum Ltd v Kencity Properties Ltd [2012] eKLR, the landlord was held liable for unlawfully locking out the tenant and damaging business assets, with damages awarded for lost property and business.
17.The claim for the value of goods sold, being Kshs. 4,048,190, is a claim for special damages which has been specifically pleaded and supported by receipts, invoices, and valuation reports. In Hahn v Singh [1985] KLR 716, the Court held that special damages must be pleaded with particularity and strictly proved.
18.In David Bagine v Martin Bundi [1997] eKLR, the Court of Appeal emphasized that special damages are awarded only when pleaded and proved. The Applicant’s evidence is uncontroverted, as the Respondents filed no rebuttal.
19.In Capital Fish Kenya Ltd v Kenya Power & Lighting Co. Ltd [2016] eKLR, the Court reaffirmed that loss of business is a form of special damages which must be specifically pleaded and strictly proved.
20.While the Applicant has pleaded the claim for loss of business, the Tribunal is required to assess whether adequate proof of monthly income has been furnished.
21.In Kenya Hotel Properties Ltd v Willesden Investments Ltd [2009] eKLR, the Court awarded compensation for business losses due to illegal actions by the landlord, noting the direct link between the wrongful act and the loss suffered.
22.Similarly, in Crown Beverages Ltd v Intercap Limited [2022] eKLR, the Court awarded damages for loss of business where the defendant’s actions unlawfully interrupted commercial operations.
23.The Respondents’ conduct on 15th January 2021 was in breach of subsisting injunctive orders issued by this Tribunal.
24.The value of the goods sold, Kshs. 4,048,190, is supported by documentary evidence and has not been challenged by the Respondents. On the authority of Hahn v Singh (supra) and David Bagine v Martin Bundi (supra), this claim is allowed in full.
25.The claim for loss of business for 36 months has not been specifically pleaded. While the Applicant has shown that the closure was directly caused by the Respondents’ acts, the Tribunal would have required computation of the claim for loss of business based on proven average monthly income prior to closure, in line with Capital Fish Kenya Ltd v Kenya Power (supra). This we cannot do in absence of any evidence for such loss. The claim is therefore declined.
26.The Respondents’ acts however constitute unlawful interference with a controlled tenancy contrary to Cap 301 and amount to contempt of Tribunal orders and we therefore award Kshs 200,000/= as general damages under the said head in exercise of our powers under section 12(4) of Cap. 301, Laws of Kenya.
27.The Applicant has established a prima facie case, demonstrated irreparable harm, and the balance of convenience lies in maintaining the Applicant’s quiet possession. We shall therefore issue an injunction restraining the Respondents, their servants, and agents from attaching, evicting, encroaching upon, or in any manner interfering with the Applicant’s quiet possession of LR No. 209/378/10, Hurlingham Court.
28.In regard to costs, under Section 12(1) (k) of Cap. 301, Laws of Kenya, costs of any suit before this tribunal are in its discretion but always follow the event unless for good reasons otherwise ordered. We shall order costs to the tenant/applicant being the successful party.
D. Final Orders
28.In view of the foregoing analysis of evidence, issues and law applicable, the following final orders commend to us: -a.It is hereby declared that the breaking into, attachment, proclamation, and auction of the Applicant’s goods on 15th January 2021 was illegal and unlawful.b.The Respondents shall jointly and severally pay the Applicant special damages of kshs. 4,048,190 being the value of goods unlawfully seized and auctioned.c.The claim for compensation for loss of business was not specifically pleaded nor proved and is therefore declined.d.The tenant is awarded a sum of Kshs 200,000/= as general damages against the Respondents on account of unlawful interference with a controlled tenancy contrary to Cap 301, Laws of Kenya.e.An order of injunction is hereby issued restraining the Respondents, their servants, and agents from attaching, evicting, encroaching upon, or in any manner interfering with the Applicant’s quiet possession of LR No. 209/378/10, Hurlingham Court.f.It is hereby declared that the Applicant is not in rent arrears and that Kshs. 440,000 held by the Respondents ought to have been applied to offset any alleged arrears.g.The Respondents shall bear the costs of this suit which shall be assessed by the Tribunal’s Deputy Registrar on application.It is so ordered.
JUDGEMENT DATED, SIGNED AND DELIVERED VIRTUALLY THIS 20TH DAY OF AUGUST 2025HON. GAKUHI CHEGEPANEL - CHAIRPERSONBUSINESS PREMISES RENT TRIBUNALHON. JOYCE AKINYI OSODO - PANEL MEMBERIn the presence of: -Imbugua for the TenantNo appearance for the Respondents