Ginono v Shah & 3 others (Commercial Appeal E008 of 2024) [2025] KEHC 18115 (KLR) (4 December 2025) (Judgment)
Neutral citation:
[2025] KEHC 18115 (KLR)
Republic of Kenya
Commercial Appeal E008 of 2024
EN Maina, J
December 4, 2025
Between
James Burure Ginono
Appellant
and
Chandraakant Devraj Shah
1st Respondent
Lead Packaging Limited
2nd Respondent
ruth Nzioka t/a Ruol Auctioneer
3rd Respondent
Robert Kahiu
4th Respondent
(28 th of June 2024 in Mavoko Chief Magistrates Court by Hon B. Ojoo in Civil Suit No 449 of 2020)
Judgment
1.By Amended Plaint dated 16th August 2021 the Appellant herein sued the Respondents jointly and severally for a declaration that one set of LM25-200-1000 roofing sheet forming machine, one set of LM-18-76-988 Roofing sheet forming machine and six (6) rolls of PPGI steel coils HC Code 72107010 (13,371 metres long) belong to the Plaintiff, special damages as interest incurred on account of a loan and loss of business & mesne profits, General damages, interests and costs.
2.It was averred that the Appellant temporarily stored his goods which he had imported from China in a warehouse belonging to the 2nd Respondent, located at Dinku Furnitures Godowns next to Astrol Petrol Station, Syokimau as he was searching for a suitable location for a factory and when he did, he used motor vehicle registration number KBS 023V ZD 5800 to transport the goods but the same was seized by the 1st Respondent as lien for rent owed by the 1st Respondent. The Appellant contended that despite documentary evidence that the goods did not belong to the 1st Respondent, the 2nd Respondent refused to release the goods.
3.He then reported the matter to Mlolongo police station vide OB 46/20/6/2020 and in the company of four policemen, pleaded with the 1st Respondent to release the goods but he still refused. It was further contended that the 1st and 3rd Respondent filed Misc Application no 33 of 2020 before this court seeking to levy distress and obtained on order on 20/08/2020 which they have used to fraudulently auction the Appellants goods despite there being a pending case before this court HCCA No 52 of 2020 between the same parties.
4.In their Statement of amended Defence dated 15/09/2021, the 1st and 3rd Respondents denied most averments in the Amended Plaint and averred that he was familiar with the 2nd Defendant by virtue of him being tenant via a lease agreement entered into on 21st March 2016 for Godown Number 17 and 18 at a total monthly rent of Kshs 40,000 for 5 years and 3 months from 1st April 2016 to 30th June 2021. That the Appellant has been frustrating the process of levying distress and even filed 2 suits which were dismissed. He indicated that when they were informed that the 2nd Respondent was illegally removing goods from the go down without clearing rent, they stopped and seized the motor vehicle registration number KBS 023 V ZD5800 with the goods on it. He indicated that he was not aware that the factory had been leased as the agreement between him and the 2nd Respondent disallowed subletting and if such an arrangement was made then it was illegal ab initio. It was his position that the 2nd Respondent traded in the same goods and the alleged goods were in the go down for 1 year, the year in which rent was not paid by the 2nd Respondent. The court was urged to dismiss the Appeal with costs.
5.It appears as if the 2nd Respondent did not file a defence but relied on his affidavit dated 07/07/2020 as his evidence.
6.The interested party filed statement of Defence dated 27/04/2022 in which he vehemently denied the contents of the Plaint.
7.After hearing of three witnesses for the Appellant’s case, three witnesses for the Respondent and evaluating the evidence adduced by the parties, the learned magistrate found that the Plaintiff was a stranger to the premises and the case had no enforceable right against the Landlord. The case was dismissed and each party directed to bear their own costs.
8.Being aggrieved, the Appellant preferred this appeal seeking to have the Judgment of the Magistrate Court set aside and be substituted with an order allowing the Appellant’s Amended Plaint in its entirety plus costs of the Appeal. The appeal is premised on the following grounds:-a.That the learned Adjudicator misdirected herself in law and in fact by failing to hold the Appellant as owner of one set of LM-18-760888 roofing sheet forming machines and six (6) rolls of PPGI steel coils HC Code 72107010 (13371 metres long).b.That the learned Magistrate erred in law and in fact by holding that LM 25-200-1000 roofing sheet forming machine, one set of LM-18-760888 roofing sheet forming machines and six (6) rolls of PPGI steel coils were in control of the 2nd Respondentc.That the learned Magistrate misdirected herself by holding that the distress of rent effected against the Appellant’s one set of LM-25-200-1000 roofing sheet forming machines, one set of LM 18-760988 roofing sheet forming machines, and six (6) rolls of PPGI steel coils was proper and lawful.d.That the magistrate erred in law and fact by failing to find fraud, conversion, alienation, illegal proclamation and illegal disposal of the Appellants’ KM25-200-1000 roofing sheet forming machine, one set of LM-18-760988 roofing sheet forming machine and six (6) rolls of PPGU steel coils against the Respondents, in spite of cogent evidencee.That the Learned Trial Magistrate erred in law and fact by blatantly disregarding clear provisions of the Distress for Rent Act and Common law which limited the powers of the 1st Respondent as a landlord over the properties and/or goods of third parties found in leased premises and that the Distress for Rent Act and the Common Law protected the rights and property of the Appellant as a third party who had stored his goods at the 2nd Respondent’s go-downf.That the learned Trial Magistrate erred in law and fact by blatantly disregarding clear provisions of sections 19 and 20 of the Distress for Rent Act and that the Plaintiff as a third party owner of the goods stored his goods at the 2nd Respondent’s Go-down, he had given the 1st Respondent, his employee an/or agent, appropriate declaration that the goods and/or property on question belonged to him, and the Appellant’s declarations duly proved that he owns the said goodsg.That the Magistrate Court erred in law and fact by failing to award the Appellant orders of compensation, general damages, special damages, loss of business and Mesne Profits despite proving loss of his goods through fraud, conversion, alienation, illegal proclamation, unlawful distress and illegal disposal by the 1st and 3rd Respondents.h.That the Magistrate court ignores the Appellant’s robust evidence and submissions.i.That the Learned Trial Magistrate erred in law in misconstruing the cited authorities before her.j.That learned Trial Magistrate erred in law and fact by dismissing the Appellant’s entire claim against the Respondent’s without affording persuasive reasons thereof.
9.The Counsel for the parties consented to canvassing the appeal by way of written submissions. The 2nd Respondent did not file submissions.
10.In submissions dated 17/05/2025, the Appellant contended that the conduct of the trial court aroused curiosity and despite of the Appellant suffering loses he was accorded no remedy at all. Worse, the 2nd Respondent suit was undefended as no Defence was filed but it was not allowed as prayed. Ultimately, the court's decision was rife with bias and grave miscarriage of justice. He raised three issues in his submissions. First, that the Appellant submitted that he is the owner of the property on account of he part of the Appellant, he maintained he was the rightful owner of the property on account of the original documentation he produced, including but not limited to invoices and receipts from the manufacturers in China, a certificate of origin of the property, a KEBS pre-shipment inspection certificate, a bill of lading, an import declaration form, Kenya Revenue Authority Tax Invoices and Receipts in his name, Kenya Ports Authority invoices and payments,, and invoices and receipts paid to local transporters to transport goods from the port to the 2nd Respondent's godown.
11.In addition, he also said the evidence of PW2 was that he was present when the goods were brought by the Appellant and they remained unpacked and uninstalled, testimony of PW3 and DW3 who maintained that the property belonged to the Appellant. He also submitted that the testimony by Evans Kirwa and Sylvester Kimani was that they were hired by the Appellant to clear the property from customs. That the 1st Respondent’s argument that the Appellant was importing the property on behalf of the 2nd Respondent is unfounded and an epitome of clutching at straws.In support of this position, reliance was placed on the cases of Giddie v Bhatti & 2 others; Msanaka Investments Ltd (Objector); Mbeki Auctioneers (Respondent) [2022] KЕНС 15889 (KLR), Mao Advocates LLP v Zadok Furniture Systems Limited; Swanya and Company Advocates (Objector) [2023] КЕНС 18942 (KLR).
12.Second that the 1st Respondent was aware of the ownership of the property by the Appellant. It was admitted that that there was no sublease between the Appellant and the 2nd Respondent and at the time of moving the property by the Appellant the lease between the 1st and 2nd Respondent was operational as it was set to lapse on the 13th of June 2021. That according to testimony of PW2 and PW3, t the 2nd Respondent was engaged in the manufacture of HDV pipes for irrigation while the Appellants property remained unpackaged and stored in the warehouse where the Appellant would go to periodically lubricate it. He submitted that the 1st Respondent was aware of the ownership as he had seen the bill of lading as well as the ownership documents. Further reliance in support of this position was placed on the following cases; John Amena Amendi T/A Amena Amendi J. & Co Advocates v Edith Nyaboke Amoro & 2 others [2008] eKLR, Paradise Lost Properties (Pty) Ltd v Standard Bank of SA (Pty) Ltd44 135, Eight Kaya Sands v Valley Irrigation Equipment 2003 (2) SA 495, First National Bank of SA Ltd tla Wesbank v Commissioner South African Revenue Service 2002(4) SA 768 (CC). Lastly, the Appellant contended that he was entitled to the orders sought in the amended Plaint and prayed for costs of the Appeal.
13.The 1st and 3rd Respondent filed joint submissions dated 16/05/2025 and raised four (4) issues. First, that the 2nd respondent having lost all his applications in Milimani Civil Suit No 7912 of 2018, was employing other tactics to frustrate the process of levying distress by bringing in the appellant who will in turn being used to claim the goods which the 2nd respondent was trading on. The 3rd Respondent subsequently obtained orders issued on 20/08/ 2020, vide Mavoko Miscellaneous application No.23 of 2020 where she obtained police assistance to enter and issue notification of sale on the assets to be found in the rented warehouse by the 2nd respondent at LR.No.12715/216 for accrued rent arrears of Kshs.4, 999, 650/= for sale by public auction in recovery of the arrears plus attachment charges. It was contended that the proclaimed goods could not belong to the Appellant as it is evident that the attached goods were old and in use by the 2nd respondent in the course of his business. It is clear that the goods attached by the 3rd respondent were the 2nd respondent's tools of trade.
14.Secondly, it was submitted that there was no relationship between the Appellant and the 1st Respondent as the lease was between the 1st and 2nd Respondent who was not allowed to sublet the premises. Further, that he did not consent to the goods being kept in the premises of the 2nd Respondent. Thirdly, it was contended that the 1st Respondent had a right to distress for rent and that despite refusal by the 1st respondent to release the proclaimed goods up until when the accrued rent arrears had been paid, the 2nd respondent did not make any effort to clear the same despite Court Orders being in place.
15.He gave the 3rd Respondent instructions to distress for rent. The the 3rd Respondent proceeded to file Mavoko miscellaneous application No. 23 of 2020 where she obtained orders for the police assistance to enter, carry out an inventory and to issue notification of sale on the assets found in the rented warehouse. Despite service, the 2nd Respondent failed to respond to the application and the court granted the orders sought. Lastly, it was contended that the Appeal should not be allowed. Reliance was placed on the cases of National Bank of Kenya Limited v Pipe Plastic Samkolit (K) Ltd [2002] e KLR and Christine Mwigina Akonya v Samuel Kairu Chege [2017] eKLR.
16.In submissions dated 18/06/2025, the 4th Respondent submitted that the Trial Court erred in dismissing the 4th Respondent’s claim Demurrage and Loss of User as against the Appellant herein who had leased his Motor Vehicle Reg. No. KBS 023V/ZD 5800 for commercial purposes of transporting his goods and could not return it as agreed which he had sought in the counter claim. That it had a contractual agreement on 20/06/2020 for Kshs 40,000 per day as consideration for its commercial use in transporting goods with the Appellant herein and not the 2nd and 3rd Respondent herein. The court was urged to find that the Appellant herein ought to reimburse the 4th Respondent a total sum of Kenya Shillings Nineteen Million Eight Hundred Thousand (Ksh. 19,800,000/=) as damages being the accrued amount. Reliance was placed on the case of Jackson Mwabili v Peterson Mateli [2020] eKLR and Nyaga v Attorney General (On Behalf of the Ministry of Environment, Water and Natural Resources) (Civil Appeal E019 of 2023) [2023] KEHC 26484 (KLR).
Determination and Analysis
17.As the first appellate court, the court had considered the rival submissions of the learned counsel for the parties, the cases cited and the law. The court is also guided by the holding of the Court of Appeal for East Africa in Peters –vs- Sunday Post Limited [1958] EA 424 where Sir Kenneth O’Connor stated as follows:-
18.The court has reevaluated and re analyzed the Trial Court record, the Memorandum of Appeal as well as submissions of the parties and what is not disputed that there was a lease agreement dated 21/03/2017 between the 1st and 2nd Respondent for Godown number 17 and 18 for a monthly rent of Kshs 400,000. The 1st Respondent and the Appellant all agree that on 20/02/2022 as the Appellant was removing his goods, the 1st Respondent’s property manager who was DW1 blocked motor vehicle registration number KBV 468F ZC 4012 which belonged to the 4th Respondent from leaving the premises and now the court has learnt that the said motor vehicle belonged to the interested party. The question before this court is thus;a.Whether the Appellant proved that he was the owner of the goods and who was in control of themb.Whether the distress for rent was lawfulc.Whether the Appellant is entitled to the orders sought
19.Section 107 (1) of the Evidence Act provides that;
20.Evidential burden of proof which is provided for under Sections 109 and 112 of the Evidence Act which state as follows:109.The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of the fact shall lie on any particular person.112.In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving the fact is upon him.
21.In this case, the legal and evidentiary burden lay on the Appellant who was also the Plaintiff in the Trial court then thereafter would shift to the various Respondents in various capacities. It is also important to note that this court can only consider that which was placed before the Trial court and not matters that are introduced on Appeal as this would be unfair. Unfair in the sense that the Trial court will not have gotten the chance to examine the said evidence. I am guided by the finding of the court in the case of D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & another [1980] KECA 3 (KLR) where the court rendered itself as follows;
22.That brings me to the question, how is evidence produced? This question was answered by the case of Kenneth Nyaga Mwige v Austin Kiguta & 2 others [2015] KECA 334 (KLR) where the court of Appeal rendered itself thus;
23.From the record, the bundle of documents that had been filed by the Appellant herein were admitted after an application on 18/08/2022 but were never produced or referred to in the proceedings. The manner of production of documents is very clear and this was not done. This mistake cost the Appellants case as no tangible evidence was produced. Even when testifying, the Appellants witnesses referred to the documents produced by the 1st Respondent’s bundle of documents. How then would the court consider that which is not produced in accordance with the evidence Act as much as it was filed? That being the case, then the Appellant had a strong case going by the submissions placed before this court but failure to produce the vital documents he makes reference to has cost him the Appeal. Even so, as stated earlier, this court cannot consider documents that the Trial did not have a chance to consider.
24.As to Whether the Appellant proved that he was the owner of the goods and who was in control of them. The Appellant stated that he was the owner of the goods but did not produce any evidence and the invoices he mentioned in his submissions before this court have not been produced or adopted into evidence thus leaving a question on the ownership. However, none of the Respondents have disputed this fact or produced contrary evidence. The oral testimony of the Appellant is corroborated by that of DW2 who stated that the goods were not his and belonged to the Appellant. The Trial court found that the Appellant could not have had any reasonable expectation to be considered as the owner of the goods. I agree with the statement but I must add that the Appellant ought to have supported this contention with evidence. The failure to produce the documents alluded to in the submissions was so detrimental that even Article 159 (2) of the Constitution of Kenya cannot be of help.
25.On the issue of control, the Trial court found that the Appellant and the 1st Respondent had no relationship and I am inclined to agree. The goods that are said to have been in the go down were in the hands of the 2nd Respondent. I note that the Appellant also admitted that there was no agreement between him and the 2nd Respondent for him to keep the goods and for how long. If liability were to be apportioned, then the 2nd Respondent would be responsible for the goods. On the other hand, the assumption that the 2nd Respondent had leased the premises to the Appellant was baseless as there was no such evidence. I therefore find that the goods were in control of the 2nd Respondent and it was liable for any loss, damage, sale or auction.
26.The second issue is whether the distress for rent was lawful. The Trial court found that it was lawful and gave reasons for its finding. Section 19 (1) of the Distress for Rent Act provides as follows;
27.The 2nd Respondent did not object to the auction on the grounds he raises herein. Even so, what lead to distress was a case before court and that decision still stands, it has not been appealed and that is not what is before this court. To scrutinize how the proclamation and auction was done is not within the purview of this court at this time. There are procedures and jurisdictional issues that arise.
28.It is not in dispute that the Appellant was not a tenant of the 1st Appellant and that the 3rd Respondent distressed for rent in accordance with the law. The Appellant only had to object to the proceedings in accordance with section 19 above but he failed to do so. Further, the appellant contends that the distress for rent was unlawful, fraudulent, there was conversion, alienation and illegal proclamation but has not provided any evidence of the same. As such, this ground fails.
29.The last question is whether the Appellant is entitled to the orders sought. As regards the orders against the 1st and 3rd Respondent who strongly objected to the Plaint and proved their case on a balance of probabilities, I find that they had a stronger case and thus the Appellant’s claim against them fails.
30.As regards the orders against the 2nd Respondent, the Appellant has raised the issue of the failure of the 2nd Defendant to file a defence was raised before the court on 27/09/2023 and the Trial Court proceeded to make a ruling to wit that the Replying affidavit will suffice in place of a witness statement. The court stated as follows;
31.This cannot stand as order 7 rule 1 is couched in mandatory terms. It provides as follows;
32.Failure to file a defence cannot be a procedural technicality as it goes to the root of the claim. Filing a defence is not optional and that is why the Civil Procedure Rules 2010 were drafted. I therefore find that the Trial Court did err on this finding. I also find that the case against the 2nd Respondent was proven and because of his failure to pay rent, there was a proclamation and consequently, the Appellants goods which were under his care were taken. Thus, he ought to compensate the Appellant.
33.As regards the 4th Respondent herein who was the Interested party, I find the finding of the Trial court in order in as far as he ought to have pursues a suit for the compensation he seeks for consideration. The Interested party has gone ahead to defend his claim in this court yet his submissions have no legs to stand on, there was no cross appeal or suit in the first place. His claim therefore fails.
34.In the end, the Appeal partially succeeds and I find as follows;a.The claim against the 1st and 3rd Respondent is dismissed.b.The 2nd Respondent is found liable to compensate the Appellant for general damages.Orders accordingly.
JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY THIS 4TH DECEMBER, 2025.E. N. MAINAJUDGEIn The Prsence Of:Mr. Ndingi for the AppellantMs Narosoi for Sang for 1st and 3rd RespondentsMr. Simiyu for 4th RespondentGeoffrey – Court Assistant