Jekan Company Ltd v Essey Caffe and Arkpoint Properties Ltd (Environment and Land Appeal E019 of 2024) [2026] KEELC 5236 (KLR)
The bottom line
#Kenya's Environment and Land Court threw out Kshs 4 million in damages and ordered the landlord-tenant case to be heard afresh before a different magistrate.
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 Appellant (Jekan) was denied a right to a fair hearing
- 2.Whether the trial court exceeded its jurisdiction by disposing of the main suit through affidavit evidence
- 3.Whether the trial court erred in law and fact in awarding the Respondent Kshs. 2,000,000 for renovations and Kshs. 2,000,000 as general damages
- 4.Whether status quo orders were in force and valid
- 5.Whether the trial court erred in invoking the doctrine of functus officio when dismissing the application dated 17.5.2024
- 6.Whether the appeal and the cross-appeal are merited
- 7.Whether the appellants are entitled to the reliefs sought
Key legal issues
#Fair hearing - disposal of main suit at interlocutory stage
The trial magistrate disposed of the main suit through a ruling on an interlocutory application without express consent of the parties, denying Jekan the chance to adduce evidence and cross-examine, breaching Article 50(1)
The court perused the hand-written proceedings of 29.5.2023 and 12.7.2023 and found no express record that parties consented to disposal of the main suit by affidavit evidence and written submissions. The ruling of 23.1.2024 disposed of the main suit through an application ruling, converting interlocutory proceedings into final judgment. This was procedural impropriety infringing the appellant's right to a fair hearing under Article 50(1), which cannot be limited under Article 25.
Special damages for renovations (Kshs 2,000,000)
The award of Kshs 2,000,000 for renovations was set aside because the special damages were pleaded but not specifically and strictly proved
The lease required the tenant to make alterations at its own cost with landlord approval. No valuation report, receipts, or acknowledgement by the lessor was filed. Photographs annexed proved renovation works but did not strictly prove the monetary expenses. The award contravened the settled principle that special damages must be specifically pleaded and strictly proved.
General damages for constructive eviction (Kshs 2,000,000)
The award of general damages for constructive eviction was erroneous in law and fact as it was determined summarily without a substantive hearing and without evidential support
Though the lease was prematurely terminated by Jekan, the circumstances of termination could not be determined summarily but required a substantive hearing. The claimant had not been heard on merit. Damages for breach of contract are compensatory, and the award of Kshs 2,000,000 as general damages for constructive eviction was unsupported by evidence on record.
Functus officio and application dated 17.5.2024
The trial court improperly invoked functus officio; having jurisdiction over the matter (as the main suit was to be heard de novo), it was seized with jurisdiction to entertain the application for retrieval of the cross-appellant's property
Functus officio is founded on finality of litigation, subject to exceptions under section 99 of the Civil Procedure Act. A court retains residual jurisdiction to deal with incidental matters. Further, the interim status quo order then in force had not been extended and stood vacated by 12.7.2023, so there was no subsisting order breached. The trial court therefore erred in dismissing the application on jurisdictional grounds.
Status quo orders
The interim status quo order was not extended after 12.7.2023 and was thereby vacated; no subsisting status quo order was in force at the material times
From the original court records, particularly the proceedings dated 12.7.2023, the interim status quo order then in force was not extended, implying it was vacated. Accordingly, there was no status quo order breached as at 12.7.2023 or on 17.5.2024 when the trial court was moved for orders of release of the goods.
Legal principles established
#- A court cannot dispose of a main suit with finality through affidavit evidence and submissions at the interlocutory stage without express consent of the parties; doing so converts interlocutory proceedings into a final judgment and breaches the right to a fair hearing under Article 50(1)
- Special damages must be specifically pleaded and strictly proved; photographs of renovation works do not strictly prove monetary expenses
- Functus officio does not bar a court from entertaining applications necessary to give effect to proceedings where it was seized with jurisdiction; a court that has jurisdiction retains residual jurisdiction to deal with incidental matters
Court orders
#- 1.The Appeal and Cross appeal are allowed
- 2.The ruling of the trial court dated 23.1.2024 and 27.8.2024 are set aside in their entirety
- 3.The matter is remitted back to the magistrates' court for hearing and determination de novo on merits before a magistrate other than Hon. L M. Njora (SPM)
- 4.Each party to bear own costs of the Appeal and Cross appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Milimani Chief Magistrates' Court (Environment and Land Case No. E180 of 2023)
- ELC Case No. E180 of 2023
- Jurisdiction invoked
- Appellate jurisdiction of the Environment and Land Court over appeals from the magistrates' court (first appellate court of instance)
- Consolidated with
- Milimani ELC Appeal No E141 of 2024 (Dawit Hagos t/a Essey Caffe v Jekan Company Limited & Arkpoint Properties Limited)
Relief refused
#Costs of the appeals by the successful appellants
Costs follow events but are awarded at the discretion of the court; the court directed each party to bear own costs
Costs
Each party to bear own costs of the Appeal and Cross appeal.
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.
The learned trial magistrate by converting interlocutory proceedings and findings into a final judgment amounted to procedural impropriety thereby infringing on the appellant’s right to a fair hearing hence the appeal succeeds on this ground.
The award of kshs 2000,000/= in favour of the Respondent (Dawit) was against the known legal principle that special damages must be specifically pleaded and proved hence should be interfered with.
It is the finding of this court that the award of kshs 2,000,000.00 in favor of Appellant as general damages for constructive eviction by the learned trial magistrate was erroneous in law and fact since not supported by evidence on record and the appeal succeeds on this ground.
the trial court was seized with jurisdiction to deal with the application dated 17.5.2024 hence find the learned trial court improperly invoked the doctrine of functus officio in dismissing the application dated 17.5.2024
a. The Appeal and Cross appeal are allowed. b. The ruling of the trial court dated 23.1.2024 and 27.8.2024 are set aside on their entirety. c. The matter is remitted back to the magistrates’ court for hearing and determination denovo on merits before a magistrate clothed with jurisdiction to entertain the matter other than Hon L M. Njora (Spm). d. Each party to bear own costs of the Appeal and Cross appeal.
Issues in the judgment
#Inconsistent references to the date of the impugned ruling - the memorandum of appeal is against a ruling 'delivered on 23rd January 2024' but the judgment elsewhere refers to 'ruling of the trail court dated 24.1.2024' and contains typographical date errors ('23.1.`22024')
The ruling on the cross-appeal is dated '27th August 20024' (typographical error for 2024)
Inconsistent identification of the parties' roles in submissions - Dawit is described as 'Respondent' in one paragraph and as 'Appellant' in the heading of the submissions paragraph
The judgment appears to describe the lease termination as breach by Jekan in one passage while the Appellant argued termination was pursuant to sale of the suit property; the court does not resolve this contradiction because it ordered a hearing de novo
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jekan Company Ltd v Essey Caffe and Arkpoint Properties Ltd (Environment and Land Appeal E019 of 2024) [2026] KEELC 5236 (KLR)", Case Analysis (2026). ELC Appeal No E019 of 2024 (Consolidated with ELC Appeal No E141 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5236/eng@2026-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.