Defendant Applicant’s Case
Ganjoni Properties Ltd has filed this application dated 26th February 2026 seeking orders that the suit be struck out with costs. The application is supported by the annexed affidavit of Kamlesh Lalichimbia Pandya and on the grounds that the prayers sought in the Plaint dated 31.12.2014 are (a) a declaration that the Tenancy of the Plaintiff in Plot No. Mombasa /Block XX340 between the Defendant and the Plaintiff is a controlled tenancy within the meaning of the Shops, Hotels and Catering Establishments Act, Cap 301 Laws of Kenya and that the terms cannot be altered without the approval of the Business Premises Rent Tribunal, (b) an injunction restraining the Defendant from evicting the Plaintiff from Plot No. Mombasa/Block XX340 or interfering with the Plaintiffs peaceful and quiet occupation thereof, (c) costs of the suit and (d) interest on (a), (d) and (c) above at Court rates. That as prayers (a) and (b) in the Plaint are for a declaration and an injunction and there is no monetary claim there can be no interest payable thereon.
The Plaintiff defaulted on its obligation under the consent orders to pay rent and the Defendant, relying on the default clause levied distress for rent whereupon the suit premises became vacant in late January 2018. On the premises falling vacant the Defendant put another Tenant in the suit premises, Fuji King Motors Limited. The premises have not been vacant since late January 2018.
The Plaintiff filed Mombasa HCCC No. 24 of 2018 against the Defendant and Makuri Auctioneers Limited alleging that it was illegally evicted from the suit premises and seeking damages for illegal/unlawful eviction and other damages totaling to Kshs. 2,330,865,000.00. The Defendant objected to the jurisdiction of the High Court but on the insistence that the High Court had jurisdiction the Preliminary Objection was dismissed and the suit went to a full trial. That suit was dismissed with costs in the Judgment delivered by the Honorable Mr. Justice J. K. Ng'arng'ar, on 21.11.2024.
The applicant contends that the reliefs sought in the Plaint in this suit cannot be granted for the following reasons that the Plaintiff is no longer a tenant of the Defendant and has not been a tenant since late January 2018, more than 8 years ago and prayer (a) seeking a declaration on the existence of the tenancy cannot be granted as the Plaintiff is no longer a tenant. Courts do not issue orders in vain. Moreover, that an order of injunction cannot be granted to restrain an event that happened 8 years ago when the Plaintiff left the premises after it was unable to comply with consent orders for payment of rent and after the Defendant levied distress for rent.
The Plaint does not contain any monetary claim and the issue of interest in prayer (d) does not arise. What remains is the payment of costs of this suit. The applicant contends that the Court of Appeal held in paragraph 58 of its Judgment in Civil Appeal No. E090 of 2022 consolidated with E091 of 2022 delivered on 24.10.2025 that the Plaintiffs lease terminated on 1.1.2015.
The Defendant had contested the jurisdiction of the High Court to hear this suit, but the High Court did not determine the Preliminary Objection. The Plaintiff had filed an application in this suit dated 27.2.2017 seeking to transfer this suit to the BPRT as the High Court had no jurisdiction but did not prosecute that application. The defendant contends that the Plaintiff cannot amend the Plaint in the suit to seek damages because it sought those damages in excess of Kshs. 2,300,000,000.00 for illegal eviction and that suit was dismissed with costs, The Plaintiff filed a Notice of Appeal dated 4.12.2024 and cannot pursue in this court the same remedy it seeks to obtain from the Court of Appeal.
The dispute between the parties herein was fully determined in Mombasa HCCC No. 24 of 2018 meaning that this suit is now res judicata, the High Court having held that it had jurisdiction to hear and determine Mombasa HCCC No. 24 of 2018 on alleged illegal/unlawful eviction and damages arising therefrom.
The Plaintiff is liable to pay the costs of this suit. In the Ruling delivered by the Honourable Lady Justice Mary Kasango in the High Court in this suit on 24.8.2015 the Court held that the tenancy between the Plaintiff and the defendant was a controlled tenancy within the meaning of Section 2 of Cap 301. From that date onwards the Plaintiff knew that the High Court had no jurisdiction but still went ahead to file Mombasa HCCC No. 24 of 2018 for damages for alleged illegal/unlawful eviction and did not withdraw this suit or transfer it to the BPRT. As the suit is res judicata and the premises fell vacant 8 years ago this Court has no jurisdiction and the suit is incompetent, vexatious, and frivolous and a gross abuse of the process of Court. The suit is scheduled for mention on 2.3.2026 and the application should be listed for hearing before any further orders or directions are given.
Kamlesh Lalitchandra Pandya the Director of the plaintiff in support states that the prayers sought in the Plaint dated 31.12.2014 are (a) a declaration that the Tenancy of the Plaintiff in Plot No. Mombasa (Block XX340 between the Defendant and the Plaintiff is a controlled tenancy within the meaning of the Shops, Hotels and Catering Establishments Act, Cap 301 Laws of Kenya and that the terms cannot be altered without the approval of the Business Premises Rent Tribunal, (b) an injunction restraining the Defendant from evicting the Plaintiff from Plot No. Mombasa/Block XX340 or interfering with the Plaintiff’s peaceful and quiet occupation thereof, (c) costs of the suit and (d) interest on (a), (d) and (c) above at Court rates. The Plaintiff defaulted on its obligation under the consent orders to pay rent and the Defendant, relying on the default clause levied distress for rent whereupon the suit premises became vacant in late January 2018. On the premises falling vacant the Defendant put another Tenant in the suit premises, Fuji King Motors Limited. The premises have not been vacant since late January 2018.
The Plaintiff is no longer a tenant of the Defendant and has not been a tenant since late January 2018, more than 8 years ago and prayer (a) seeking a declaration on the existence of the tenancy cannot be granted as the Plaintiff is no longer a tenant. Courts do not issue orders in vain.
According to the plaintiff, an order of injunction cannot be granted to restrain an event that happened 8 years ago when the Plaintiff left the premises after it was unable to comply with consent orders for payment of rent and after the Defendant levied distress for rent. The Plaint does not contain any monetary claim and the issue of interest in prayer (d) does not arise. What remains is the payment of costs of this suit.
The Plaintiff cannot amend the Plaint in the suit to seek damages because it sought those damages in excess of Kshs. 2,300,000,000.00 for illegal eviction and that suit was dismissed with costs. The Plaintiff filed a Notice of Appeal dated 4.12.2024 and cannot pursue in this court the same remedy it seeks to obtain from the Court of Appeal. There is now produced and shown to me a copy of the Notice of Appeal marked "KLP2".
The dispute between the parties herein was fully determined in Mombasa HCCC No. 24 of 2018 meaning that this suit is now res judicata, the High Court having held that it had jurisdiction to hear and determine Mombasa HCCC No. 24 of 2018 on alleged illegal/unlawful eviction and damages arising therefrom.
The Plaintiff is liable to pay the costs of this suit. In the Ruling delivered by the Honourable Lady Justice Mary Kasango in the High Court in this suit on 24.8.2015 the Court held that the tenancy between the Plaintiff and the defendant was a controlled tenancy within the meaning of Section 2 of Cap 301. From that date onwards the Plaintiff knew that the High Court had no jurisdiction but still went ahead to file Mombasa HCCC No. 24 of 2018 for damages for alleged illegal/unlawful eviction and did not withdraw this suit or transfer it to the BPRT.
Plaintiff’s/Respondent’s Case
Rehan Riaz Malik a Director of the Plaintiff in this Cause filed a replying affidavit stating that the motion by the Defendant is without any merit and only seeks avoid having the real and substantive issues raised in the Plaint being heard and determined on its merits but this attempt to have this suit prematurely struck out. That the issues raises in this cause are substantially different from the issues raised in Mombasa Hi h Court Case No. 24 of 2018 between Al Riaz International Limited vs Ganjoni Properties Limited & Makuri Auctioneer.
The respondent agrees that, the prayers sought in this case, through the Plaint dated 31st December 2014 are as follows:
i. A declaration that the tenancy of the Plaintiff in Plot No. Mombasa/Block XX/340 between the Defendant and the Plaintiff is a controlled tenancy within the meaning of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301 Laws of Kenya and that the terms cannot be altered without the approval of the Business Premises Rent Tribunal;
ii. An Injunction restraining the Defendant from evicting the Plaintiff from Plot No. Mombasa/Block )W340 or interfering with the Plaintiff peaceful and quiet occupation thereof;
iii. Costs of the suit and interest thereon at Court Rates
The above issues have, to date, not been determined and or adjudicated upon by any Court of competent jurisdiction, including the Court in the above-mentioned matter. The Defendant unlawfully, illegally and without following the due process of the law as required under law and in particular, The Shops, Hotels o and Catering Establishments Act, Cap 301 and as such, the Plaintiff suffered loss and damage. The Defendant, under the guise of levying distress for alleged rental arrears, unlawfully and illegally evicted the Plaintiff although the Distress for Rent Act does not in any way empower the landlord to undertake eviction while levying distress for rent. The eviction was therefore out rightly illegal and unlawful.
Therefore, the issues of whether the tenancy between the Plaintiff and the Defendant was a controlled one has not yet been properly and comprehensively determined by any Court of Competent Jurisdiction and as such remain unresolved. That the Other issue of whether the terms of the tenant between the Plaintiff and the Defendant could be altered in any way other that as provided for under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act/ Cap 301 has also not been determined by any Court of Competent jurisdiction and as such remains unresolved and undetermined. That in light of the above, this case is and cannot be res judicata.
The respondent contends that the Court in Mombasa High Court Case No. 24 of 2018 between Al Riaz International Limited vs Ganjoni Properties Limited & Makuri Auctioneer never dealt with the issues raised in this Cause in any way whatsoever and therefore it cannot be said to be Res Judicata as alleged by the Defendant. THAT in fact, the Defendant had raised similar issues, that is of sub judice and res judicate, in Mombasa High Court Case No. 24 of 2018 between Al Riaz International Limited vs Ganjoni Properties Limited & Makuri Auctioneer, in an attempt to have the High Court not determine the issues raised therein on the grounds that this suit is still pending determination.
The Defendant challenged the jurisdiction of the High Court having raised the doctrine of sub judice and res judicata, alleging that the issues raised therein were similar to the issues raised in this Cause.
The respondent contends that the issues of the strength and or weaknesses of the Case is for the Court to determine after, of course, hearing of the parties, weighing the evidence and determining the issues therein, and not for the Defendant.
That in addressing the diverging issues raised by the parties, being whether the tenancy between the Defendant and the Plaintiff was a controlled tenancy and one subject to the provisions of Cap 301 j as raised by the Plaintiff and whether the Agreement (Lease) between the parties can oust the provisions of Cap 301 / as raised by the Defendant, the Court held as follows:
"In my view, the provisions of Section 2 of Cap 301 are clear. Thus, if a tenancy automatically becomes a controlled one and is subject to the provisions of Cap 301 and it does not matter whether the parties had agreed that the provisions of Cap 301 shall not apply to their relationship. Whether the tenancy relationship between the parties was a controlled one. which is subject to the provisions of Cap 301 is a matter of law and cannot be ousted by an agreement between the tenancy relationship between the parties herein was o therefore a controlled one and subject to the provisions of Cap 301.
The Court when having a look at the process initiated by the Defendant of changing the terms of the tenancy between itself and the Defendant, the terms of the tenancy without complying with Section 4 of Cap 301. That in total disregard of the above injunctive orders, the Defendant proceeded to illegally and unlawfully evict the Plaintiff under the guise of levying distress for alleged rental arrears, an act that is blatantly unlawful in its totality and thus, as feared by the Court, the Plaintiff suffered irreparable harm. That in summary therefore, this suit is not res judicate as alleged by the Defendant, the issues herein having not been determined by any Competent Court of law and as such, he prays that this Honourable Court expedite the hearing and determination of this case, the same having been pending for a very long time. He therefore prays that the Notice of Motion dated 26th February 2026 by the defendant be dismissed with costs.
Rival Submissions
The defendant/Applicant filed written submissions stating that reliefs sought in the Plaint in this suit cannot be granted for the following reasons:
a) The Plaintiff is no longer a tenant of the Defendant and has not been a tenant since late o January 2018, more than 8 years ago and prayer (a) seeking a declaration on the existence of the tenancy cannot be granted as the Plaintiff is no longer a tenant. Courts do not issue orders in vain.
b) An order of injunction cannot be granted to restrain an event that happened 8 years ago when the Plaintiff left the premises after it was unable to comply with consent orders for payment of rent and after the Defendant levied distress for rent.
c) The Plaint does not contain any monetary claim and the issue of interest in prayer (d) does not arise.
d) What remains is the payment of costs of this suit.
The defendant submits that this suit has been overtaken by events.
That the Plaintiff ceased to be a tenant of the Defendant in 2018. The premises are in the occupation of Fuji Kings Motors Limited from 2018. Fuji Kings Motors Limited filed a case against the Plaintiff and the Defendant in ELC No. 20 of 2018 within which it obtained restraining orders. The suit having been overtaken by events must be struck out as there it has no substructure or foundation. The defendant submits that in view of the admission that the Plaintiff ceased to be a tenant of the Defendant in the suit premises in 2018, the declaration sought in prayer (a) of the Plaint will not serve any practical purpose and will it be in vain.
In paragraphs 55, 58, 59, 60, 63, 64 and 65 of the Judgment of the Court of Appeal in Civil Appeal No. E090 of 2022 consolidated with 13091 of 2022 delivered on 21.10.2025 remitting the suit for trial to this Court, the Court of Appeal held that the tenancy between the Plaintiff and the Defendant was a controlled one but that the High Court had no jurisdiction, The Plaintiff is seeking a declaration it has already obtained from the Court of Appeal, To continue with this suit is abuse of process unless the Plaintiff intends to seek a different result.
The Plaintiff admits in paragraphs 8 and 9 of the Replying Affidavit that it ceased to be a tenant of the Defendant in 2018 and that it filed a suit in the High Court for damages for illegal eviction. Both parties have annexed a copy of the Judgment of the High Court in Mombasa HCCC No. 24 of 2018 in their respective affidavits.
The Plaintiff is no longer a tenant of the Defendant in the suit premises and the declaration sought would be most inaccurate and in vain, Circumstances have changed. The Plaint has not been amended, and cannot be amended to seek reinstatement in property already in possession of Fuji King Motors Limited who is not a party to this suit.
As the Plaintiff is no longer a tenant of the Defendant, a declaration in terms with prayer (a) of the Plaint would be false.
On whether the Court has jurisdiction to grant the orders of injunction sought in prayer (b) of the Plaint to restrain the Defendant from evicting it from the suit premises or interfering the Plaintiff's peaceful and quiet occupation thereof, 8 years after the Plaintiff ceased to be a tenant of the Defendant or was evicted from the suit premises. The suit was overtaken by events in 2018 and an order of injunction is not available.
The defendant submits that a claim for interest cannot be sustained in a suit that has no pecuniary of monetary claim. In the absence of a claim for damages, that prayer should have been struck out years ago. There is no pecuniary or monetary remedy sought. Declarations and injunctions do not attract payment of interest. The Plaintiff sought interest in his pecuniary claim in HCCC No. 24 of 2018, but that suit was dismissed with costs.
The defendant submits that the this suit cannot be saved by amendment. The suit cannot be saved and there will be no purpose in hearing it. The suit premises were leased, in 2018 to Fuji King Motors Limited. That company is not a party in this suit. There were no orders of injunction in 2018 as the orders the High Court had given without jurisdiction in August 2015 had long lapsed and the subsequent orders given on 28.2.2017 lapsed automatically when the Plaintiff defaulted in the conditions attached to those orders. The Plaintiff claimed to have suffered damages for alleged illegal / unlawful eviction and sued the Defendant and the auctioneer in Mombasa HCCC No. 24 of 2018, claiming a total of Kshs. 2,330,865,000.00. The suit was dismissed.
I have not seen the plaintiff’s submissions.
Analyisis and Determination
The respondent agrees that, the prayers sought in this case, through the Plaint dated 31st December 2014 are as follows:
i. A declaration that the tenancy of the Plaintiff in Plot No. Mombasa/Block XX/340 between the Defendant and the Plaintiff is a controlled tenancy within the meaning of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301 Laws of Kenya and that the terms cannot be altered without the approval of the Business Premises Rent Tribunal;
ii. An Injunction restraining the Defendant from evicting the Plaintiff from Plot No. Mombasa/Block )W340 or interfering with the Plaintiff peaceful and quiet occupation thereof;
iii. Costs of the suit and interest thereon at Court Rates
It is not contested that the Plaintiff defaulted on its obligation under the consent orders to pay rent and the Defendant, relying on the default clause levied distress for rent whereupon the suit premises became vacant in late January 2018 and the Defendant put another Tenant in the suit premises by the name Fuji King Motors Limited. The premises have not been vacant since late January 2018. The Plaintiff is no longer a tenant of the Defendant and has not been a tenant since late January 2018, more than 8 years ago and prayer (a) seeking a declaration on the existence of the tenancy cannot be granted as the Plaintiff is no longer a tenant. According to the applicant, an order of injunction cannot be granted to restrain an event that happened 8 years ago when the Plaintiff left the premises after it was unable to comply with consent orders for payment of rent and after the Defendant levied distress for rent. The Plaint does not contain any monetary claim and the issue of interest in prayer (d) does not arise. What remains is the payment of costs of this suit. I have considered the application and rival submissions and do find that the only issue for determination is whether the suit is moot. In discussing the rationale and relevance of the doctrine of mootness in the administration of justice, the High Court in National Assembly of Kenya & 3 another v Institute of Social Accountability & 6 others [2017] eKLR held as follows:
“…it is clear that the mootness doctrine is not an abstract doctrine.
Rather, it is a functional doctrine founded mainly on principles of Judicial economy and functional competence of the courts and the integrity of the Judicial System… the court will inevitably consider the extent to which the doctrine advances the underlying principles, the certainty and development of the law particularly the constitution law and public interest.”
In Okiya Omtata Okoiti & 2 others v Attorney General & 4 others [2020]
eKLR, the Court of Appeal adverting to the foregoing cited with approval
the High Court decision in Daniel Kaminja & 3 others (suing as Westland
Environmental Caretaker Group) v County Government of Nairobi [2019]
eKLR to the effect that:
“A matter is moot if further legal proceedings with regard to it can
have no effect, or events have placed it beyond the reach of the law.
Thereby the matter has been deprived of practical significance or
rendered purely academic. Mootness arises when there is no longer
an actual controversy between the parties to a court case and any
ruling by the court would have no actual practical impact….No
court of law will knowingly act in vain … a suit is academic where
it is merely theoretical, makes empty sound and of no practical
utilitarian value to the plaintiff even if judgment is given in his
favour. A suit is academic if it is not related to practical situations
Of human nature and humanity.”
This court is alive to the right of every party to be heard in his case and the
Exhortation in D.T. Dobie and Company v Joseph Mbaria Muchina (1980) eKLR courts to eschew the summary dismissal of suits.
Thus, I am in agreement with the position taken in Habiba Ali Mursal & 4 Others V Mariam Noor Abdi [2018] eKLR, in which similar facts played out, that: -
“On the issue as to whether an injunction should be issued, there is nothing to restrain as the respondent has already demolished the walls of the building. According to the photographs annexed to the application for contempt which I shall shortly herein after deal with, the walls of the building have already been demolished and all windows removed. The entire building has been fenced and sealed using iron sheets. The applicants are not in the premises. The purpose of an injunction is to restrain that which is threatened to occur or is in the process of being undertaken in breach of one’s right. It is never meant to prevent what has already occurred. It will therefore be futile to grant injunctive orders. I will therefore decline to grant any orders in the notice of motion dated 11th October, 2018 save for an order that the respondent shall meet the costs of this application. It is so ordered.”
Likewise, in the case of Moses M Wairimu & 24 Others V Kenya Power & Lighting Co Ltd & Another [2020] eKLR, the Court held as follows:
“On whether they will suffer injury which will not be compensated, there is no doubt that the structures which they were seeking to protect have already been demolished. If the Applicants will succeed to show that their buildings were unlawfully brought down, they will always be compensated in monetary terms. An injunction cannot therefore be granted and in any case an injunction cannot issue to prevent what has already happened.”
Needless to underscore the fact that the grant of an order of injunction being an equitable remedy, is governed by the general principles of equity; one of which is that “Equity does not act in vain.”
In the case of Eric V. J. Makokha & 4 others v Lawrence Sagini & 2 others [1994] eKLR, for instance, the court stated: -
“An application for injunction under Rule 5(2)(b) is an invocation of the equitable jurisdiction of the Court. So, its grant must be made on principles established by equity. One of it is represented by the maxim that equity would not grant its remedy if such order will be in vain. As is said, "Equity, like nature, will do nothing in vain". On the basis of this maxim, courts have held again and again that it cannot stultify itself by making orders which cannot be enforced or grant an injunction which will be ineffective for practical purposes. If it will be impossible to comply with the injunction sought, the Court will decline to grant it.”
The upshot of the above is that the application dated 26th February 2026 is allowed thus the suit is struck out with costs to the applicant as the horse has already bolted.
Ganjoni Properties Ltd has filed this application dated 26th February 2026 seeking orders that the suit be struck out with costs. The application is supported by the annexed affidavit of Kamlesh Lalichimbia Pandya and on the grounds that the prayers sought in the Plaint dated 31.12.2014 are (a) a declaration that the Tenancy of the Plaintiff in Plot No. Mombasa /Block XX340 between the Defendant and the Plaintiff is a controlled tenancy within the meaning of the Shops, Hotels and Catering Establishments Act, Cap 301 Laws of Kenya and that the terms cannot be altered without the approval of the Business Premises Rent Tribunal, (b) an injunction restraining the Defendant from evicting the Plaintiff from Plot No. Mombasa/Block XX340 or interfering with the Plaintiffs peaceful and quiet occupation thereof, (c) costs of the suit and (d) interest on (a), (d) and (c) above at Court rates. That as prayers (a) and (b) in the Plaint are for a declaration and an injunction and there is no monetary claim there can be no interest payable thereon.
The Plaintiff defaulted on its obligation under the consent orders to pay rent and the Defendant, relying on the default clause levied distress for rent whereupon the suit premises became vacant in late January 2018. On the premises falling vacant the Defendant put another Tenant in the suit premises, Fuji King Motors Limited. The premises have not been vacant since late January 2018.
The Plaintiff filed Mombasa HCCC No. 24 of 2018 against the Defendant and Makuri Auctioneers Limited alleging that it was illegally evicted from the suit premises and seeking damages for illegal/unlawful eviction and other damages totaling to Kshs. 2,330,865,000.00. The Defendant objected to the jurisdiction of the High Court but on the insistence that the High Court had jurisdiction the Preliminary Objection was dismissed and the suit went to a full trial. That suit was dismissed with costs in the Judgment delivered by the Honorable Mr. Justice J. K. Ng'arng'ar, on 21.11.2024.
The applicant contends that the reliefs sought in the Plaint in this suit cannot be granted for the following reasons that the Plaintiff is no longer a tenant of the Defendant and has not been a tenant since late January 2018, more than 8 years ago and prayer (a) seeking a declaration on the existence of the tenancy cannot be granted as the Plaintiff is no longer a tenant. Courts do not issue orders in vain. Moreover, that an order of injunction cannot be granted to restrain an event that happened 8 years ago when the Plaintiff left the premises after it was unable to comply with consent orders for payment of rent and after the Defendant levied distress for rent.
The Plaint does not contain any monetary claim and the issue of interest in prayer (d) does not arise. What remains is the payment of costs of this suit. The applicant contends that the Court of Appeal held in paragraph 58 of its Judgment in Civil Appeal No. E090 of 2022 consolidated with E091 of 2022 delivered on 24.10.2025 that the Plaintiffs lease terminated on 1.1.2015.
The Defendant had contested the jurisdiction of the High Court to hear this suit, but the High Court did not determine the Preliminary Objection. The Plaintiff had filed an application in this suit dated 27.2.2017 seeking to transfer this suit to the BPRT as the High Court had no jurisdiction but did not prosecute that application. The defendant contends that the Plaintiff cannot amend the Plaint in the suit to seek damages because it sought those damages in excess of Kshs. 2,300,000,000.00 for illegal eviction and that suit was dismissed with costs, The Plaintiff filed a Notice of Appeal dated 4.12.2024 and cannot pursue in this court the same remedy it seeks to obtain from the Court of Appeal.
The dispute between the parties herein was fully determined in Mombasa HCCC No. 24 of 2018 meaning that this suit is now res judicata, the High Court having held that it had jurisdiction to hear and determine Mombasa HCCC No. 24 of 2018 on alleged illegal/unlawful eviction and damages arising therefrom.
The Plaintiff is liable to pay the costs of this suit. In the Ruling delivered by the Honourable Lady Justice Mary Kasango in the High Court in this suit on 24.8.2015 the Court held that the tenancy between the Plaintiff and the defendant was a controlled tenancy within the meaning of Section 2 of Cap 301. From that date onwards the Plaintiff knew that the High Court had no jurisdiction but still went ahead to file Mombasa HCCC No. 24 of 2018 for damages for alleged illegal/unlawful eviction and did not withdraw this suit or transfer it to the BPRT. As the suit is res judicata and the premises fell vacant 8 years ago this Court has no jurisdiction and the suit is incompetent, vexatious, and frivolous and a gross abuse of the process of Court. The suit is scheduled for mention on 2.3.2026 and the application should be listed for hearing before any further orders or directions are given.
Kamlesh Lalitchandra Pandya the Director of the plaintiff in support states that the prayers sought in the Plaint dated 31.12.2014 are (a) a declaration that the Tenancy of the Plaintiff in Plot No. Mombasa (Block XX340 between the Defendant and the Plaintiff is a controlled tenancy within the meaning of the Shops, Hotels and Catering Establishments Act, Cap 301 Laws of Kenya and that the terms cannot be altered without the approval of the Business Premises Rent Tribunal, (b) an injunction restraining the Defendant from evicting the Plaintiff from Plot No. Mombasa/Block XX340 or interfering with the Plaintiff’s peaceful and quiet occupation thereof, (c) costs of the suit and (d) interest on (a), (d) and (c) above at Court rates. The Plaintiff defaulted on its obligation under the consent orders to pay rent and the Defendant, relying on the default clause levied distress for rent whereupon the suit premises became vacant in late January 2018. On the premises falling vacant the Defendant put another Tenant in the suit premises, Fuji King Motors Limited. The premises have not been vacant since late January 2018.
The Plaintiff is no longer a tenant of the Defendant and has not been a tenant since late January 2018, more than 8 years ago and prayer (a) seeking a declaration on the existence of the tenancy cannot be granted as the Plaintiff is no longer a tenant. Courts do not issue orders in vain.
According to the plaintiff, an order of injunction cannot be granted to restrain an event that happened 8 years ago when the Plaintiff left the premises after it was unable to comply with consent orders for payment of rent and after the Defendant levied distress for rent. The Plaint does not contain any monetary claim and the issue of interest in prayer (d) does not arise. What remains is the payment of costs of this suit.
The Plaintiff cannot amend the Plaint in the suit to seek damages because it sought those damages in excess of Kshs. 2,300,000,000.00 for illegal eviction and that suit was dismissed with costs. The Plaintiff filed a Notice of Appeal dated 4.12.2024 and cannot pursue in this court the same remedy it seeks to obtain from the Court of Appeal. There is now produced and shown to me a copy of the Notice of Appeal marked "KLP2".
The dispute between the parties herein was fully determined in Mombasa HCCC No. 24 of 2018 meaning that this suit is now res judicata, the High Court having held that it had jurisdiction to hear and determine Mombasa HCCC No. 24 of 2018 on alleged illegal/unlawful eviction and damages arising therefrom.
The Plaintiff is liable to pay the costs of this suit. In the Ruling delivered by the Honourable Lady Justice Mary Kasango in the High Court in this suit on 24.8.2015 the Court held that the tenancy between the Plaintiff and the defendant was a controlled tenancy within the meaning of Section 2 of Cap 301. From that date onwards the Plaintiff knew that the High Court had no jurisdiction but still went ahead to file Mombasa HCCC No. 24 of 2018 for damages for alleged illegal/unlawful eviction and did not withdraw this suit or transfer it to the BPRT.
Plaintiff’s/Respondent’s Case
Rehan Riaz Malik a Director of the Plaintiff in this Cause filed a replying affidavit stating that the motion by the Defendant is without any merit and only seeks avoid having the real and substantive issues raised in the Plaint being heard and determined on its merits but this attempt to have this suit prematurely struck out. That the issues raises in this cause are substantially different from the issues raised in Mombasa Hi h Court Case No. 24 of 2018 between Al Riaz International Limited vs Ganjoni Properties Limited & Makuri Auctioneer.
The respondent agrees that, the prayers sought in this case, through the Plaint dated 31st December 2014 are as follows:
i. A declaration that the tenancy of the Plaintiff in Plot No. Mombasa/Block XX/340 between the Defendant and the Plaintiff is a controlled tenancy within the meaning of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301 Laws of Kenya and that the terms cannot be altered without the approval of the Business Premises Rent Tribunal;
ii. An Injunction restraining the Defendant from evicting the Plaintiff from Plot No. Mombasa/Block )W340 or interfering with the Plaintiff peaceful and quiet occupation thereof;
iii. Costs of the suit and interest thereon at Court Rates
The above issues have, to date, not been determined and or adjudicated upon by any Court of competent jurisdiction, including the Court in the above-mentioned matter. The Defendant unlawfully, illegally and without following the due process of the law as required under law and in particular, The Shops, Hotels o and Catering Establishments Act, Cap 301 and as such, the Plaintiff suffered loss and damage. The Defendant, under the guise of levying distress for alleged rental arrears, unlawfully and illegally evicted the Plaintiff although the Distress for Rent Act does not in any way empower the landlord to undertake eviction while levying distress for rent. The eviction was therefore out rightly illegal and unlawful.
Therefore, the issues of whether the tenancy between the Plaintiff and the Defendant was a controlled one has not yet been properly and comprehensively determined by any Court of Competent Jurisdiction and as such remain unresolved. That the Other issue of whether the terms of the tenant between the Plaintiff and the Defendant could be altered in any way other that as provided for under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act/ Cap 301 has also not been determined by any Court of Competent jurisdiction and as such remains unresolved and undetermined. That in light of the above, this case is and cannot be res judicata.
The respondent contends that the Court in Mombasa High Court Case No. 24 of 2018 between Al Riaz International Limited vs Ganjoni Properties Limited & Makuri Auctioneer never dealt with the issues raised in this Cause in any way whatsoever and therefore it cannot be said to be Res Judicata as alleged by the Defendant. THAT in fact, the Defendant had raised similar issues, that is of sub judice and res judicate, in Mombasa High Court Case No. 24 of 2018 between Al Riaz International Limited vs Ganjoni Properties Limited & Makuri Auctioneer, in an attempt to have the High Court not determine the issues raised therein on the grounds that this suit is still pending determination.
The Defendant challenged the jurisdiction of the High Court having raised the doctrine of sub judice and res judicata, alleging that the issues raised therein were similar to the issues raised in this Cause.
The respondent contends that the issues of the strength and or weaknesses of the Case is for the Court to determine after, of course, hearing of the parties, weighing the evidence and determining the issues therein, and not for the Defendant.
That in addressing the diverging issues raised by the parties, being whether the tenancy between the Defendant and the Plaintiff was a controlled tenancy and one subject to the provisions of Cap 301 j as raised by the Plaintiff and whether the Agreement (Lease) between the parties can oust the provisions of Cap 301 / as raised by the Defendant, the Court held as follows:
"In my view, the provisions of Section 2 of Cap 301 are clear. Thus, if a tenancy automatically becomes a controlled one and is subject to the provisions of Cap 301 and it does not matter whether the parties had agreed that the provisions of Cap 301 shall not apply to their relationship. Whether the tenancy relationship between the parties was a controlled one. which is subject to the provisions of Cap 301 is a matter of law and cannot be ousted by an agreement between the tenancy relationship between the parties herein was o therefore a controlled one and subject to the provisions of Cap 301.
The Court when having a look at the process initiated by the Defendant of changing the terms of the tenancy between itself and the Defendant, the terms of the tenancy without complying with Section 4 of Cap 301. That in total disregard of the above injunctive orders, the Defendant proceeded to illegally and unlawfully evict the Plaintiff under the guise of levying distress for alleged rental arrears, an act that is blatantly unlawful in its totality and thus, as feared by the Court, the Plaintiff suffered irreparable harm. That in summary therefore, this suit is not res judicate as alleged by the Defendant, the issues herein having not been determined by any Competent Court of law and as such, he prays that this Honourable Court expedite the hearing and determination of this case, the same having been pending for a very long time. He therefore prays that the Notice of Motion dated 26th February 2026 by the defendant be dismissed with costs.
Rival Submissions
The defendant/Applicant filed written submissions stating that reliefs sought in the Plaint in this suit cannot be granted for the following reasons:
a) The Plaintiff is no longer a tenant of the Defendant and has not been a tenant since late o January 2018, more than 8 years ago and prayer (a) seeking a declaration on the existence of the tenancy cannot be granted as the Plaintiff is no longer a tenant. Courts do not issue orders in vain.
b) An order of injunction cannot be granted to restrain an event that happened 8 years ago when the Plaintiff left the premises after it was unable to comply with consent orders for payment of rent and after the Defendant levied distress for rent.
c) The Plaint does not contain any monetary claim and the issue of interest in prayer (d) does not arise.
d) What remains is the payment of costs of this suit.
The defendant submits that this suit has been overtaken by events.
That the Plaintiff ceased to be a tenant of the Defendant in 2018. The premises are in the occupation of Fuji Kings Motors Limited from 2018. Fuji Kings Motors Limited filed a case against the Plaintiff and the Defendant in ELC No. 20 of 2018 within which it obtained restraining orders. The suit having been overtaken by events must be struck out as there it has no substructure or foundation. The defendant submits that in view of the admission that the Plaintiff ceased to be a tenant of the Defendant in the suit premises in 2018, the declaration sought in prayer (a) of the Plaint will not serve any practical purpose and will it be in vain.
In paragraphs 55, 58, 59, 60, 63, 64 and 65 of the Judgment of the Court of Appeal in Civil Appeal No. E090 of 2022 consolidated with 13091 of 2022 delivered on 21.10.2025 remitting the suit for trial to this Court, the Court of Appeal held that the tenancy between the Plaintiff and the Defendant was a controlled one but that the High Court had no jurisdiction, The Plaintiff is seeking a declaration it has already obtained from the Court of Appeal, To continue with this suit is abuse of process unless the Plaintiff intends to seek a different result.
The Plaintiff admits in paragraphs 8 and 9 of the Replying Affidavit that it ceased to be a tenant of the Defendant in 2018 and that it filed a suit in the High Court for damages for illegal eviction. Both parties have annexed a copy of the Judgment of the High Court in Mombasa HCCC No. 24 of 2018 in their respective affidavits.
The Plaintiff is no longer a tenant of the Defendant in the suit premises and the declaration sought would be most inaccurate and in vain, Circumstances have changed. The Plaint has not been amended, and cannot be amended to seek reinstatement in property already in possession of Fuji King Motors Limited who is not a party to this suit.
As the Plaintiff is no longer a tenant of the Defendant, a declaration in terms with prayer (a) of the Plaint would be false.
On whether the Court has jurisdiction to grant the orders of injunction sought in prayer (b) of the Plaint to restrain the Defendant from evicting it from the suit premises or interfering the Plaintiff's peaceful and quiet occupation thereof, 8 years after the Plaintiff ceased to be a tenant of the Defendant or was evicted from the suit premises. The suit was overtaken by events in 2018 and an order of injunction is not available.
The defendant submits that a claim for interest cannot be sustained in a suit that has no pecuniary of monetary claim. In the absence of a claim for damages, that prayer should have been struck out years ago. There is no pecuniary or monetary remedy sought. Declarations and injunctions do not attract payment of interest. The Plaintiff sought interest in his pecuniary claim in HCCC No. 24 of 2018, but that suit was dismissed with costs.
The defendant submits that the this suit cannot be saved by amendment. The suit cannot be saved and there will be no purpose in hearing it. The suit premises were leased, in 2018 to Fuji King Motors Limited. That company is not a party in this suit. There were no orders of injunction in 2018 as the orders the High Court had given without jurisdiction in August 2015 had long lapsed and the subsequent orders given on 28.2.2017 lapsed automatically when the Plaintiff defaulted in the conditions attached to those orders. The Plaintiff claimed to have suffered damages for alleged illegal / unlawful eviction and sued the Defendant and the auctioneer in Mombasa HCCC No. 24 of 2018, claiming a total of Kshs. 2,330,865,000.00. The suit was dismissed.
I have not seen the plaintiff’s submissions.
Analyisis and Determination
The respondent agrees that, the prayers sought in this case, through the Plaint dated 31st December 2014 are as follows:
i. A declaration that the tenancy of the Plaintiff in Plot No. Mombasa/Block XX/340 between the Defendant and the Plaintiff is a controlled tenancy within the meaning of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301 Laws of Kenya and that the terms cannot be altered without the approval of the Business Premises Rent Tribunal;
ii. An Injunction restraining the Defendant from evicting the Plaintiff from Plot No. Mombasa/Block )W340 or interfering with the Plaintiff peaceful and quiet occupation thereof;
iii. Costs of the suit and interest thereon at Court Rates
It is not contested that the Plaintiff defaulted on its obligation under the consent orders to pay rent and the Defendant, relying on the default clause levied distress for rent whereupon the suit premises became vacant in late January 2018 and the Defendant put another Tenant in the suit premises by the name Fuji King Motors Limited. The premises have not been vacant since late January 2018. The Plaintiff is no longer a tenant of the Defendant and has not been a tenant since late January 2018, more than 8 years ago and prayer (a) seeking a declaration on the existence of the tenancy cannot be granted as the Plaintiff is no longer a tenant. According to the applicant, an order of injunction cannot be granted to restrain an event that happened 8 years ago when the Plaintiff left the premises after it was unable to comply with consent orders for payment of rent and after the Defendant levied distress for rent. The Plaint does not contain any monetary claim and the issue of interest in prayer (d) does not arise. What remains is the payment of costs of this suit. I have considered the application and rival submissions and do find that the only issue for determination is whether the suit is moot. In discussing the rationale and relevance of the doctrine of mootness in the administration of justice, the High Court in National Assembly of Kenya & 3 another v Institute of Social Accountability & 6 others [2017] eKLR held as follows:
“…it is clear that the mootness doctrine is not an abstract doctrine.
Rather, it is a functional doctrine founded mainly on principles of Judicial economy and functional competence of the courts and the integrity of the Judicial System… the court will inevitably consider the extent to which the doctrine advances the underlying principles, the certainty and development of the law particularly the constitution law and public interest.”
In Okiya Omtata Okoiti & 2 others v Attorney General & 4 others [2020]
eKLR, the Court of Appeal adverting to the foregoing cited with approval
the High Court decision in Daniel Kaminja & 3 others (suing as Westland
Environmental Caretaker Group) v County Government of Nairobi [2019]
eKLR to the effect that:
“A matter is moot if further legal proceedings with regard to it can
have no effect, or events have placed it beyond the reach of the law.
Thereby the matter has been deprived of practical significance or
rendered purely academic. Mootness arises when there is no longer
an actual controversy between the parties to a court case and any
ruling by the court would have no actual practical impact….No
court of law will knowingly act in vain … a suit is academic where
it is merely theoretical, makes empty sound and of no practical
utilitarian value to the plaintiff even if judgment is given in his
favour. A suit is academic if it is not related to practical situations
Of human nature and humanity.”
This court is alive to the right of every party to be heard in his case and the
Exhortation in D.T. Dobie and Company v Joseph Mbaria Muchina (1980) eKLR courts to eschew the summary dismissal of suits.
Thus, I am in agreement with the position taken in Habiba Ali Mursal & 4 Others V Mariam Noor Abdi [2018] eKLR, in which similar facts played out, that: -
“On the issue as to whether an injunction should be issued, there is nothing to restrain as the respondent has already demolished the walls of the building. According to the photographs annexed to the application for contempt which I shall shortly herein after deal with, the walls of the building have already been demolished and all windows removed. The entire building has been fenced and sealed using iron sheets. The applicants are not in the premises. The purpose of an injunction is to restrain that which is threatened to occur or is in the process of being undertaken in breach of one’s right. It is never meant to prevent what has already occurred. It will therefore be futile to grant injunctive orders. I will therefore decline to grant any orders in the notice of motion dated 11th October, 2018 save for an order that the respondent shall meet the costs of this application. It is so ordered.”
Likewise, in the case of Moses M Wairimu & 24 Others V Kenya Power & Lighting Co Ltd & Another [2020] eKLR, the Court held as follows:
“On whether they will suffer injury which will not be compensated, there is no doubt that the structures which they were seeking to protect have already been demolished. If the Applicants will succeed to show that their buildings were unlawfully brought down, they will always be compensated in monetary terms. An injunction cannot therefore be granted and in any case an injunction cannot issue to prevent what has already happened.”
Needless to underscore the fact that the grant of an order of injunction being an equitable remedy, is governed by the general principles of equity; one of which is that “Equity does not act in vain.”
In the case of Eric V. J. Makokha & 4 others v Lawrence Sagini & 2 others [1994] eKLR, for instance, the court stated: -
“An application for injunction under Rule 5(2)(b) is an invocation of the equitable jurisdiction of the Court. So, its grant must be made on principles established by equity. One of it is represented by the maxim that equity would not grant its remedy if such order will be in vain. As is said, "Equity, like nature, will do nothing in vain". On the basis of this maxim, courts have held again and again that it cannot stultify itself by making orders which cannot be enforced or grant an injunction which will be ineffective for practical purposes. If it will be impossible to comply with the injunction sought, the Court will decline to grant it.”
The upshot of the above is that the application dated 26th February 2026 is allowed thus the suit is struck out with costs to the applicant as the horse has already bolted.