Hagos t/a Essey Caffe v Arkpoint Properties Limited & another (Environment and Land Appeal E141 of 2024) [2026] KEELC 5240 (KLR)
The bottom line
#Kenya's Environment and Land Court threw out Kshs. 4 million in awards and sent a landlord-tenant dispute back for a fresh hearing 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
#Whether Jekan was denied a fair hearing
Yes - the trial magistrate disposed of the main suit at the interlocutory stage without express consent of the parties, infringing the right to a fair hearing under Articles 25 and 50(1) of the Constitution
The proceedings of 12.7.2023 recorded only that parties would file submissions on compensation in the application dated 24.5.2023. The ruling of 23.1.2024 disposed of the main suit at the interlocutory stage, denying Jekan the chance to cross-examine or lead evidence. Disputed averments must be tested at a full trial, not finally determined on affidavit evidence at an interlocutory stage, and this procedural impropriety infringed the right to a fair hearing.
Whether the awards of Kshs. 2,000,000 for renovations and Kshs. 2,000,000 general damages for constructive eviction were sustainable
No - the renovation award was special damages not strictly proved, and the general damages award was unsupported by evidence as the circumstances of termination required a substantive hearing
The lease required alterations to be made at the tenant's own cost; no receipts, valuation reports or acknowledgement by the lessor were filed, and photographs did not strictly prove monetary expenditure. Damages for breach of contract are compensatory, but the circumstances of the lease termination could not be determined summarily without hearing the parties on merit, making both awards erroneous in law and fact.
Whether the trial court properly invoked functus officio in dismissing the application dated 17.5.2024
No - having found the trial court acted in excess of jurisdiction in disposing of the main suit, the trial court was seized with jurisdiction to entertain the application and improperly invoked functus officio
The functus officio doctrine, founded on finality of litigation and subject to section 99 of the Civil Procedure Act, was improperly invoked because the trial court had itself exceeded jurisdiction. Further, the interim status quo order in force was not extended on 12.7.2023, implying it was vacated, so no status quo order was breached when the application was filed. A tenancy vests a property right not to be deprived arbitrarily.
Whether the appeals are merited and the appellants entitled to relief
Yes - both appeals raise substantial issues for determination at the main suit and are allowed, with the rulings set aside and the matter remitted for hearing de novo
The trial magistrate exceeded jurisdiction by determining the main suit at an interlocutory stage without express consent, and denied the parties a hearing on merit including on the application dated 17.5.2024. This occasioned injustice to the parties; both the appeal and cross-appeal therefore succeed and the matter must be heard afresh before a different magistrate.
Legal principles established
#- A court cannot convert interlocutory proceedings into a final determination of the main suit without the parties' express consent to dispose of the suit by affidavit evidence and written submissions
- Special damages must be specifically pleaded and strictly proved; photographs of renovations do not strictly prove monetary expenses incurred
- The functus officio doctrine bars reopening a matter decided on merit, subject to exceptions under section 99 of the Civil Procedure Act, 2010, but a court improperly divested of jurisdiction retains the duty to hear applications before it
- Costs follow the event under section 27 of the Civil Procedure Act, 2010 but are awarded at the discretion of the court
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
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the magistrates' court (Appeal and Cross-Appeal disposed of by written submissions; ELCA No E019/2024 as lead file)
- Consolidated with
- Milimani ELC Appeal No. E141 of 2024
Relief refused
#Costs of the appeals by either party
Although the appellants sought costs, the court exercised its discretion to order 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.
From the affidavit evidence on record the sum of kshs 2000000/ though pleaded in the plaint was not specifically/strictly proved.
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
As per the original court records (Milimani mcelc180/2023) in paticular the proceedings dated 12.7.2023, the interim status quo order then in force was not extended implying it was vacated.
The ruling of the trial court dated 23.1.2024 and 27.8.2024 are set aside on their entirety.
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).
Issues in the judgment
#Internal inconsistency in the date of the trial court ruling - referred to as 23rd January 2024 in the introduction but as 24.1.2024 in the analysis
The cross-appeal ruling date is stated as 27th August 20024 (typographical error for 2024)
The cross-appeal is inconsistently cited as 'milimani elca No E141/2024' and 'ELC Appeal E0141/2024'
Directions of the court dated 17.3.2026 and submissions dated 20th May 2026 and 29th June 2026 post-date the judgment delivery date of 28th July 2026 only narrowly; the year 2026 appears anomalous given the 2024 rulings, though internally consistent
Quotation from Selle v Associated Motor Boat Co includes sub-paragraph (ii) on non-interference which appears inconsistent with sub-paragraph (i) as reproduced
Misattribution in paragraph 33 - the Appellant is described as praying for loss of business and goodwill, which was Dawit's claim
Inconsistent party role designations - Jekan and Dawit are each at times labelled 'Appellant' and 'Respondent' within the same paragraphs
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hagos t/a Essey Caffe v Arkpoint Properties Limited & another (Environment and Land Appeal E141 of 2024) [2026] KEELC 5240 (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/2026/5240/eng@2026-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.