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ELCPartially AllowedELC Appeal No. E019 of 2024 (consolidated with ELC Appeal No. E141 of 2024)

Hagos t/a Essey Caffe v Arkpoint Properties Limited & another (Environment and Land Appeal E141 of 2024) [2026] KEELC 5240 (KLR)

Environment and Land Court
28 July 2026
6,196 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This judgment of the Environment and Land Court at Voi (J.A. Orwa, J) disposed of an appeal (ELC Appeal No. E019 of 2024) by Jekan Company Limited and a cross-appeal (ELC Appeal No. E141 of 2024) by Dawit Hagos t/a Essey Caffe, both arising from rulings of Hon. L.M. Njora (SPM) in Milimani CM ELC Case No. E180 of 2023. The trial court had, by ruling of 23rd January 2024, awarded Dawit Kshs. 2,000,000 as general damages for constructive eviction, Kshs. 2,000,000 as reimbursement for renovations (dismissing the loss of business claim), and later, on 27th August 2024, dismissed Dawit's application for retrieval of his movable property on the ground that the magistrate was functus officio. Jekan appealed against the awards, contending it was condemned unheard and that the renovation award was unproved special damages; Dawit cross-appealed against the functus officio ruling. The court, applying Selle v Associated Motor Boat Co and Mbogo v Shah, found the trial magistrate exceeded her jurisdiction by finally disposing of the main suit at the interlocutory stage without the parties' express consent, infringing the right to a fair hearing. The Kshs. 2,000,000 renovation award failed as special damages not strictly proved, and the general damages award was unsupported by evidence since the termination circumstances required a full hearing. The functus officio ruling was also erroneous: the court was seized of jurisdiction over the 17th May 2024 application, and the interim status quo order had lapsed by 12.7.2023. Both appeals were allowed; both rulings were set aside in their entirety and the matter remitted for hearing de novo before a magistrate other than Hon. L.M. Njora, with each party bearing own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Appellant (Jekan) was denied a right to a fair hearing
  2. 2.Whether the trial court exceeded its jurisdiction by disposing of the main suit through affidavit evidence
  3. 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. 4.Whether status quo orders were in force and valid
  5. 5.Whether the trial court erred in invoking the doctrine of functus officio when dismissing the application dated 17.5.2024
  6. 6.Whether the appeal and the cross-appeal are merited
  7. 7.Whether the appellants are entitled to the reliefs sought

Key legal issues

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01

Whether Jekan was denied a fair hearing

Holding

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

Reasoning

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.

p. 13
02

Whether the awards of Kshs. 2,000,000 for renovations and Kshs. 2,000,000 general damages for constructive eviction were sustainable

Holding

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

Reasoning

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.

p. 14
03

Whether the trial court properly invoked functus officio in dismissing the application dated 17.5.2024

Holding

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

Reasoning

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.

p. 16
04

Whether the appeals are merited and the appellants entitled to relief

Holding

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

Reasoning

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.

p. 17

Legal principles established

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  • 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

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  1. 1.The Appeal and Cross appeal are allowed
  2. 2.The ruling of the trial court dated 23.1.2024 and 27.8.2024 are set aside in their entirety
  3. 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. 4.Each party to bear own costs of the Appeal and Cross appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

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

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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

p. 17

Costs

Each party to bear own costs of the Appeal and Cross appeal

Quotable passages

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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.
p. 13fair hearing - disposal of main suit at interlocutory stage
From the affidavit evidence on record the sum of kshs 2000000/ though pleaded in the plaint was not specifically/strictly proved.
p. 14special damages - strict proof
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
p. 16functus officio improperly invoked
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.
p. 15status quo orders - lapse
The ruling of the trial court dated 23.1.2024 and 27.8.2024 are set aside on their entirety.
p. 17final orders - setting aside
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).
p. 17final orders - remittal for hearing de novo

Issues in the judgment

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minor

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

minor

The cross-appeal ruling date is stated as 27th August 20024 (typographical error for 2024)

minor

The cross-appeal is inconsistently cited as 'milimani elca No E141/2024' and 'ELC Appeal E0141/2024'

minor

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

minor

Quotation from Selle v Associated Motor Boat Co includes sub-paragraph (ii) on non-interference which appears inconsistent with sub-paragraph (i) as reproduced

material

Misattribution in paragraph 33 - the Appellant is described as praying for loss of business and goodwill, which was Dawit's claim

material

Inconsistent party role designations - Jekan and Dawit are each at times labelled 'Appellant' and 'Respondent' within the same paragraphs

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.