A tenancy dispute between Nova Innovators Limited (landlord) and Davani Group Limited (tenant) saw the landlord invoke an “act of God” defence after flooding damaged the tenant’s stock, a claim that became central to the case alongside a row over unpaid rent and distress proceedings.
The matter was filed in July 2024, after the tenant lodged a reference alleging that the landlord had acted unfairly and sought to terminate the tenancy without following due process.
According to the tenant, the landlord had gone as far as instructing auctioneers to levy distress for rent arrears, an action it described as irregular.
The tenant further claimed that the alleged arrears were linked to the landlord’s own unlawful conduct and that, in any case, it had invested heavily in fitting out the premises only to suffer damage from water ingress during heavy rains.
“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,” reads part of the judgment.
In its supporting bundle, it filed photographs, video clips, and a witness statement describing the extent of loss.
“However, the tenant’s claim for monetary recompense is framed generally, without a specific head-by-head itemisation and without attaching primary proof such as receipts, invoices, bills of quantities, contracts, or independent valuations to demonstrate quantum,” court documents show.
The landlord responded, insisting that rent arrears were real and admitted.
The landlord argued that distress for rent was lawful under the Distress for Rent Act, Cap. 293, which empowers landlords to seize a tenant’s goods in recovery of unpaid rent.
It further maintained that the alleged losses were caused by flooding — an environmental event that could not reasonably be blamed on any act or omission on its part.
“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,” stated the judgment.
The Auctioneers, who had been joined to the proceedings as an interested party, defended their role. It explained that it had simply carried out instructions in accordance with the Auctioneers Act and Rules, having issued the necessary notices.
Since the landlord had the right to levy distress where arrears existed, it denied liability and sought dismissal of the case.
The Tribunal heard both sides. The tenant’s witness adopted his statement and described the frustration his company faced, including damaged goods and alleged losses.
The landlord’s witness stood by the defence that arrears were admitted and flooding was an act of God, while the auctioneer pointed to its limited role as an agent executing lawful instructions.
After evaluating the evidence, the Tribunal framed several key issues: whether distress for rent had been lawfully levied; whether the tenant had specifically pleaded and strictly proved its claimed losses; whether flooding could be pinned on the landlord; and whether the auctioneer bore any liability.
On the lawfulness of distress, the Tribunal pointed out that Section 3 of the Distress for Rent Act permits landlords to levy distress for arrears without first seeking leave, unless a statutory bar exists.
Since arrears were evident and the tenant did not prove otherwise, the Tribunal held that the landlord’s action was within the law.
On the tenant’s claim for damages, the Tribunal stressed the principle that special damages must be specifically pleaded and strictly proved.
It was observed that while the tenant made sweeping claims about construction and stock losses, the record was bare of receipts, invoices, payment vouchers, or valuation reports.
The figures mentioned in submissions could not, on their own, amount to proof. On that basis, the Tribunal found the claim fell short of the evidentiary threshold.
The question of causation proved decisive. The Tribunal noted that the tenant’s own witness statement attributed the primary damage to water ingress and flooding during heavy rains.
But critically, it did not demonstrate any positive act or negligent omission by the landlord that had caused the flooding. In those circumstances, the Tribunal agreed with the landlord’s argument that the damage was the result of an extraordinary natural occurrence.
“Kenyan jurisprudence recognises force majeure/act of God as a defence where extraordinary natural events, beyond reasonable foresight and control, intervene,” Tribunal Chair Gakuhi Chege noted.
This conclusion had a knock-on effect for the auctioneer as well. Since the distress itself was lawful and no illegality was shown in the manner it was carried out, the Tribunal held that the auctioneer bore no personal liability.
It absolved the auctioneers entirely. In its ruling, the Tribunal also rejected the idea that equitable relief could be extended to a tenant who remained in admitted arrears. It noted that “he who seeks equity must do equity,” and arrears disentitled the tenant from relief in any event.
Finally, the Tribunal turned to costs. Guided by the principle that costs follow the event, it ordered the tenant to pay costs to both the landlord and the auctioneer, exercising its discretion under section 12(1)(k) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301.
The decision effectively dismissed the tenant’s claims in their entirety, upholding the landlord’s right of distress and treating the flood damage as beyond human control.
