Nova Innovators Limited v Davani Group Limited; Mayfair Auctioneers (Interested Party) (Tribunal Case E707 of 2024) [2025] KEBPRT 415 (KLR) (26 September 2025) (Judgment)
Neutral citation:
[2025] KEBPRT 415 (KLR)
Republic of Kenya
Tribunal Case E707 of 2024
Gakuhi Chege, Chair & J Osodo, Member
September 26, 2025
Between
Nova Innovators Limited
Landlord
and
Davani Group Limited
Tenant
and
Mayfair Auctioneers
Interested Party
Judgment
A. Background, Parties’ Pleadings & Evidence
1.This judgement is in regard to the tenant’s reference dated 1st July 2024 in which it complains that the landlord has employed all forms of hostility with a bid of unlawfully frustrating its business with intention of evicting it. It is further pleaded that the landlord authorized Auctioneers to levy distress for rent arrears which had been occasioned by its unlawful actions.
2.The tenant challenges the legality of the distress and seeks compensation for alleged loss of goods and investments said to have been made at the premises.
3.Through its replying and further affidavits sworn by Walter Mayaka on 18th July 2024 and 4th September 2024, the landlord maintains that the distress was lawful under the Distress for Rent Act, Cap. 293, Laws of Kenya, that rent arrears were admitted, and that the alleged losses were occasioned by an act of God (flooding) rather than any unlawful act on the landlord’s part. The auctioneer, joined as an interested party, asserts it acted strictly on the landlord’s instructions and within the law.
4.At case management, the tenant filed a witness statement by Yusuf Bolaji dated 4th April 2025 and a comprehensive bundle of documentary exhibits dated 8th April 2025.
5.Both parties gave evidence and the tenant’s witness adopted his witness statement while the landlord’s witness also adopted his filed affidavits aforesaid and documents placed on record.
6.As observed above, the tenant’s pleadings and evidence adduced before the Tribunal is that the distress was unlawful; that the auctioneer acted irregularly and that the tenant suffered loss and damage including damage to stock/effects and loss of construction investment. The tenant prays for compensation and costs.
7.However, the tenant’s claim for monetary recompense is framed generally, without a specific head‑by‑head itemization and without attaching primary proof such as receipts, invoices, bills of quantities, contracts, or independent valuations to demonstrate quantum.
8.The tenant filed video and photographic evidence and general statements regarding the alleged destruction and flooding. The tenant’s witness statement attributes the primary loss to water ingress and flooding during heavy rains. Notably, the statement does not pin the flooding to a positive act or omission of the landlord but treats it as an environmental event.
9.Beyond the narrative, the tenant did not annex contemporaneous invoices, delivery notes, or payment vouchers for the alleged constructions or fit‑out costs.
10.The landlord’s pleadings aver that rent arrears had accrued over a material period and that the tenant had acknowledged indebtedness. The landlord relies on the Distress for Rent Act to justify levy of distress without prior leave of the Tribunal. The landlord further pleads that any damage claimed was the result of heavy rains and flooding which events were beyond the landlord’s control thereby invoking the doctrine of ‘act of God’.
11.The landlord’s bundle includes a rent ledger/statement demonstrating arrears and correspondence reminding the tenant to regularize payments.
12.Mayfair Auctioneers filed a response explaining that it was instructed to recover admitted rent arrears; that it issued the statutory auctioneer notices and acted within the Auctioneers Act and Rules; and that, given the admitted arrears and the landlord’s right of distress under Cap. 293, prior permission of the Tribunal was not a prerequisite. It denies liability for any alleged loss and seeks costs if sued needlessly.
13.The Tribunal notes that despite wide allegations about the cost of constructions and improvements carried out by the tenant, the record lacks verifiable, primary documentary proof of the alleged expenditures. No bills of quantities, no signed contractor agreements, no payment vouchers/receipts, and no independent valuation reports are exhibited. Where figures are mentioned in submissions, they remain assertions from the bar, not evidence.
14.The Tribunal has carefully considered the pleadings and landlord’s submissions as filed, together with the bundles placed on the record.
15.The Tribunal has evaluated their probative value against the legal burdens imposed by the Evidence Act (Cap. 80) and the Civil Procedure Rules, with particular attention to whether the tenant discharged the burden of pleading and strictly proving special damages and identified the following issues for determination.
B. Issues for Determination
16.Based on the pleadings and evidence tendered herein, the following issues arise for determination in this case: -i.Whether the distress for rent was lawful under the Distress for Rent Act, Cap. 293.ii.Whether the tenant’s claims for loss (including alleged construction costs and damaged goods) were specifically pleaded and strictly proved as special damages.iii.Whether the alleged loss was occasioned by an act of God (flooding) and is therefore non‑actionable against the landlord or auctioneer.iv.Whether the auctioneer bears any liability in the circumstances.v.What orders should issue, including as to costs?
C. Legal Analysis of the Issues & Determination
17.Lawfulness of Distress: The documentary record shows rent arrears were not seriously controverted. Under Section 3 of Cap. 293, a landlord may levy distress for arrears. The tenant has not demonstrated any statutory bar or procedural non‑compliance that would vitiate the levy. The authority in Kasturi Limited v Nyeri Wholesalers Limited [2014] eKLR supports this position.
18.Special Damages & Pleading and Proof: It is a settled proposition in our courts that special damages must be specifically pleaded and strictly proved.
19.In Hahn v Singh [1985] KLR 716 the Court of Appeal stated, in terms now firmly entrenched, that special damages must be specifically pleaded and strictly proved.
20.The same principle appears in Capital Fish Kenya Ltd v KPLC [2016] eKLR, where the Court reiterated that figures advanced in submissions do not constitute evidence. The tenant’s pleadings and evidence fell short: alleged construction/fit‑out costs are not particularized head‑by‑head; there are no receipts, invoices, payment vouchers, contracts, or valuations to establish quantum. On this record, the threshold is not met.
21.Causation & Act of God: The tenant’s own narrative attributes the primary loss to heavy rains and flooding. Kenyan jurisprudence recognizes force majeure/act of God as a defence where extraordinary natural events, beyond reasonable foresight and control intervene.
22.The case of Kenya Airways Ltd v Satwant Singh Flora [2013] eKLR is instructive that liability is fault‑based; absent breach or negligent act causing the damage, liability cannot be imposed merely because loss occurred. In the present case, no positive act or negligent omission by the landlord was proved to have caused flooding; the phenomenon was environmental and extraordinary.
23.Burden of Proof: By Sections 107–109 of the Evidence Act, the legal and evidential burdens lay squarely on the tenant to prove unlawful distress and to prove the pleaded loss with specificity and supporting documents. The tenant did not discharge those burdens. Assertions from the bar cannot replace proof, and photographs, absent quantification and vouchers, do not establish special damages.
24.Auctioneer’s Liability: The auctioneer was a duly instructed agent carrying out lawful distress for rent arrears that were, on the record, admitted. Under the Auctioneers Act and Rules, and in light of Cap. 293, the auctioneer’s duty is to execute the instruction in accordance with the law. Where the instructing party enjoys a lawful right to levy distress, and no illegality is shown in the manner of execution, personal liability does not attach to the auctioneer. We therefore absolve Mayfair Auctioneers from liability.
25.Whether Tribunal Leave Was Required: We agree with the landlord that, on the facts of admitted arrears and absent any statutory stay or bar, the Distress for Rent Act did not compel prior leave of the Tribunal before levy of distress. The Tribunal’s supervisory jurisdiction remains available to check abuse; however, on the evidence here, no abuse is proved.
26.Construction/Improvement Costs: The tenant did not specifically plead nor strictly prove any head of alleged construction costs. No bills of quantities, signed contracts, completion certificates, or payment receipts are before the Tribunal. In the absence of such proof, and guided by Hahn v Singh and Capital Fish v KPLC, the claim fails.
27.General Damages: To the extent the tenant seeks general damages for alleged unlawful distress, the requisite basis of unlawfulness has not been established. The distress was rooted in rent arrears and the statutory framework allows it. No award lies.
28.Equitable Considerations: Equity follows the law. A tenant in admitted rent arrears cannot, without more, impeach a lawful distress or shift environmental losses onto the landlord when no breach is shown. He who seeks equity must do equity and come with clean hands; arrears disentitle the tenant to equitable relief on these facts.
29.Costs: Costs of every action before this Tribunal are in our discretion under section 12(1)(k) of Cap 301, Laws of Kenya but costs always follow the event. The landlord and the auctioneer, having successfully resisted the tenant’s claim, are entitled to costs of the reference and application.
D. Disposition
30.Having weighed the pleadings, documentary exhibits and submissions, and applying the foregoing statutory and judicial guidance, we find and hold as follows: -a.The distress for rent was lawful under the Distress for Rent Act, Cap. 293;b.The tenant’s claims for construction costs and other pecuniary losses were not specifically pleaded nor strictly proved;c.The alleged loss was, in any event, occasioned by an act of God (flooding) and is not attributable to any wrongful act or omission by the landlord;d.Mayfair Auctioneers, having acted on a lawful instruction, is absolved from liability; ande.The tenant’s reference and application are dismissed with costs to the landlord and the auctioneer.It is so ordered.
JUDGEMENT DATED, SIGNED AND DELIVERED VIRTUALLY THIS 26TH DAY OF SEPTEMBER 2025HON. GAKUHI CHEGE - (PANEL CHAIRPERSON)HON. JOYCE AKINYI OSODO - (PANEL MEMBER)PREMISES RENT TRIBUNALIn the presence of: