( Appeal from the Ruling dated 4/04/2025 delivered in MCCOMMSU No. E1374 of 2021 by Hon. B. M. Cheloti - SRM )
1. This Appeal arises from the Ruling referred to above, delivered in the lower Court suit, in which the Appellants ( hereinafter referred to as “the Tenants ”) were the Respondents, while the current 1 st Respondent (Landlord) and the 2 nd Respondent (Auctioneer) were the Applicants. By the Ruling, the Court basically, declined to set aside its earlier orders given in the case allowing the Respondents to levy distress for rent against the Tenants.
2. The background of the matter is that by the Notice of Motion dated 5/10/2021, the 2 nd Respondent, in his own name, as the 1 st Respondent’s Auctioneer, sought orders to allow him levy distress against the Tenants for alleged rent arrears owed to the 1 st Respondent. The subject tenancy was at the property known as L.R. No. 209/4285 christened “ Agriculture House ” situated within the Nairobi Central Business District. I understand that the Application came up before Hon. Muchungi (Mrs) SRM on 19/10/2021 who directed that same be served for inter partes hearing on 5/11/2021. The record indicates that the Application was allowed ex parte on 11/11/2021 by Hon. E.M. Kagoni (Mr) and the Officer Commanding (OCS) Railways Police Station directed to provide security during the exercise. The record further indicates that the order was, upon the 1 st Respondent’s further Application dated 17/11/2021, subsequently varied to the extent that the portion directing provision of security was now directed to be executed by the OCS Central Police Station. It is not in dispute that thereafter, on 24/09/2021, the levy of distress for rent was executed and the Appellants property either carted away or partly carted away.
3. On the same 24/09/2021, by the Application of the same date, the Tenants, through Amuga & Co. Advocates , rushed to Court and applied for setting aside of the orders, denying owing any rent arrears as alleged. The Respondents were also accused of concealing from the Court the fact that the issue of tenancy was already a subject of Milimani High Court Commercial Case No. E213 of 2021 and also Milimani High Court Commercial Case No. E169 of 2021 , in which an order to maintain the status quo was subsisting. The record reflects that the Application was allowed on 5/05/2023 when the Respondents failed to attend Court nor file a response thereto. The effect of the order was therefore that leave to levy the distress for rent stood vacated.
4. The “ping-pong” continued when the Respondents, 3 months later, by the Application dated 30/08/2023, this time filed through Messrs Mwanzia & Co. Advocates , sought the setting aside of the orders granted on 5/05/2023 by which the permission to levy distress for rent was lifted. In his Affidavit in support of the Application, the 2 nd Respondent (Auctioneer) claimed that the failure by the Advocates to attend Court on the said date was because the matter was not cause-listed and as such, the Advocate did not know which Court to attend. He also acknowledged that they were yet to file a Replying Affidavit, and sought leave to do so. He also disclosed that the matter had since proceeded to arbitration and that the Tenants had produced the impugned order dated 5/05/2023 which they were heavily relying on. The Application was this time placed before Hon. B. M. Cheloti whom the record reflects to have, on 7/11/2023, ex parte lifted or vacated the orders for levy of distress granted on 5/5/2023, pending hearing of the Application.
5. The Tenants then filed their Replying Affidavit sworn by their Advocate, Paul Amuga , who deponed that the Respondents were duly served with the Application dated 24/11/2021 seeking lifting of the levy of distress orders but failed to file a response thereto, and that the Application was therefore correctly allowed on 5/05/2023. He also reiterated that the 3 months delay to challenge the orders was inordinate, and as such, accused the Respondents of inordinate delay. He also urged that even if the matter was not cause-listed, it was incumbent upon the Counsel to have logged into the virtual Court link as they knew which Court had been handling the case. On their part, the Respondents filed a Supplementary Affidavit sworn by the 2 nd Respondent (Auctioneer) claiming that they did not file a Replying Affidavit to the Application dated 24/11/2021 because the same was only served upon them 2 years later, by which time the Application had since been overtaken by events as the order permitting levy of distress had long been executed. He also maintained that the matter was not cause-listed for 5/05/2023.
6. The parties then filed Submissions on the Application. In his Submissions dated 8/03/2024, the Tenant’s Counsel however introduced the new issue that the Application was incompetent having been filed by Advocates who were not properly on record, urging that the matter was commenced as an Application by the 2 nd Respondent (Auctioneers) in his own name. It was also contended that the order granted on 11/11/2021 allowing the Respondents to levy distress for rent but later vacated on 5/05/2023 was an irregular order as there are two separate orders on record, both purportedly given on the same 11/11/2021. According to him therefore, there was an obvious manipulation of the orders, but he also revealed that the issue was a subject of an investigation by the Judicial Service Commission ( JSC ).
7. In her Ruling delivered on 24/05/2024, Hon. B. M. Cheloti allowed the Application, although she observed that the Respondent’s Counsel who was alleged to have been unable to establish the Court before which the matter would be heard because it was not cause-listed, did not herself swear an Affidavit to depone so, or to disclose what efforts she had made to find out the subject Court, noting that although the matter had initially been before different Magistrates, it had subsequently been always heard before herself (Magistrate). Her basis for allowing the Application was basically, because the Tenants had not demonstrated the prejudice they would suffer if the order permitting levy of distress were left to remain in place. The effect of the Ruling was therefore that the initial orders granted 5/05/2023 by which leave to levy of distress for rent was granted became restored. In effect therefore, the order allowing levy of distress were restored, and the Tenants’ Application dated 24/09/2021, seeking for setting aside of the orders for levy of distress had to therefore be heard afresh.
8. In respect to the now to be heard afresh Tenants’ Application dated 24/09/2021, seeking for setting aside of the orders for levy of distress, the Respondents filed the Replying Affidavit sworn on 14/02/2025, whereof it was deponed that the order given on 11/11/2021 was enforced on 24/11/2021 when distress for rent was levied, and the distrained goods subsequently sold on 18/12/2021 at a public auction. It was further urged that the lease the subject of the tenancy expired on 28/02/2021, and as such, the tenancy relationship lapsed, and the premises leased out to a new tenant. He also refuted the claim that the order was a forgery, urging that the same was verified by the OCS as authentic before being acted upon. It was further stated that the Tenants had concealed from the Court the fact that in a separate but similar matter between the same parties, filed by the Tenants at the High Court, the Tenant’s similar Application had already been dismissed on the ground that they were no longer tenants in the premises, distress for rent having been levied, and as such, the High Court could not grant orders in vain. The Court was therefore urged to find that the Application had been overtaken by events.
9. On their part, the Tenants filed a Supplementary Affidavit in which it was repeated that the order “purportedly” given on 11/11/2021 was forged. To support this claim, they exhibited a copy of a letter dated 9/05/2024 from the Court Administrator indicating that indeed, the order never originated from that Court. According to Counsel therefore, it is that forged order that the Respondents used to illegally evict the Tenants from the premises. He also reiterated that the issue had been lodged with the JSC for investigations. He also reiterated that in breach of clear directions given by the Court, the Respondents withheld timely service of the Application dated 5/10/2021 upon the Tenants.
10. It is on the above backdrop that Hon. B. M. Echeloti delivered the Ruling dated 4/04/2025 dismissing the Application, which Ruling is now the subject of this Appeal. In the Ruling, she held that the Tenants had not, in any of their Affidavits, denied the Respondents’ contention that the matter had been overtaken by events as the distress for rent had long been levied, and the distrained goods sold by way of public auction, and also that the lease had since expired and the premises leased out to a new tenant. As such, she agreed that the Application had been overtaken events, and thus dismissed it.
11. Aggrieved by this second decision, the Tenants filed this Appeal by way of the Memorandum dated 30/04/2025, listing 7 grounds crafted as follows:
“1. The Learned Magistrate erred in law and fact in failing to appreciate, sufficiently or at all, the nature of the Application which had been presented to the Court by the Appellants and further erred by finding and holding that the Application had been overtaken by events.
2. The Learned Magistrate erred in law and fact in failing to find and hold that the Appellants were entitled to have the order dated 11 th November, 2021 set aside as a matter of right (ex-debito justiciae), considering that the order was obtained irregularly after the Respondents deliberately failed to serve the application dated 5th October 2021 upon the Appellants as per the Court directions given on 19 th October 2021 but instead prosecuted the application without notice or service upon the Appellants.
3. The Learned Magistrate erred in law and fact by dismissing the Appellants application on the ground that the application had been overtaken by events yet the Appellants’ complaint before the court concerned the procedure and manner through which the order dated 11 th November, 2021 had been obtained by the Respondents and the legality of the order which the Respondents had used to unlawfully levy distress and illegally evict the Appellants from the business premises leased to the Appellants by the 1 st Respondent.
4. The Learned Magistrate erred in law and fact in failing to appreciate that the application which was before the court was challenging an order which was procured by the Respondents through abuse of court process, which is a matter concerning administration of justice and the application could not have been overtaken by events.
5. The Learned Magistrate erred in law and fact in basing her decision on irrelevant matters and further erred by failing to consider matters which were relevant, such as the validity of two orders purportedly given by the court or 11 th November, 2021 and purportedly issued separately by the court on 16 th November 2021 and 19 th November, 2021 bearing forged content and purportedly signed FOR Hon. E. M. Kagoni, Principal Magistrate.
6. The Learned Magistrate erred in law and fact by failing to uphold the rule of law when she refused to set aside an order which was procured by the Respondents illegally and the Learned Magistrate further erred by failing to protect the integrity of the court process when she not only allowed a falsified order to remain on record but also failed to issue orders or directives for the forged court order to be expunged or set aside and also subjected to investigations by the relevant government agencies and the culprits involved in falsification of Court record brought to book.
7. The Learned Magistrate erred in law and fact in failing to find and hold that forgery of a Court order or tampering with Court records by a party to a suit is a matter going to the root of administration of justice and an Application challenging such forgery, conduct or order can never be overtaken by events.”
12. In this Appeal, the parties filed written Submissions. The Tenants-Appellants’ Submissions is dated 28/11/2025, while the Respondents’ is dated 28/06/2026. The Tenants-Appellants’ also filed the Supplementary Submissions dated 5/08/2026. In the respective Submissions, the parties basically reiterated their earlier rival contentions, save for citing authorities.
Determination
13. The issue for determination herein is “ whether the trial Court erred in declining to set aside the orders said to have been granted on 11/11/2021 permitting the Landlord and Auctioneer (Respondents) to levy distress for rent against the Tenants-Appellants .”
14. As reiterated in a plethora of cases, this being a first appellate Court, it has the duty to evaluate, re-assess and re-analyze the evidence before the trial Court, and draw its own conclusion (see for instance, the case of Kenya Ports Authority vs Kuston (Kenya) Ltd [2009] 2 EA 212 .
15. The trial Court having, from the record, granted the impugned order on 11/11/2021 when the Tenant did not show up in Court, it is not in dispute that the Court possessed the power, in the exercise of its discretion, and on sound grounds, to set aside or vary the order. In an Appeal challenging exercise of such discretion, the limits within which an Appellate Court can interfere were reiterated by the Supreme Court in the case of Musa Cherutich Sirma v Independent Electoral and Boundaries Commission & 2 others [2019] eKLR , as follows:
“………… we affirm that we would only interfere with the Appellate Court’s exercise of discretion if we reach the conclusion that in exercise of such discretion, the Appellate Court acted arbitrary or capriciously or ignored relevant facts or completely disregarded the principles of the governing law leading to an unjust order. Conversely, if we find that the discretion has been exercised reasonably and judiciously, then the fact that we would have arrived at a different conclusion than the Court of Appeal is not a reason to interfere with the Court’s exercise of discretion.”
16. In the event that a party is served but fails to attend Court, and an adverse order is then issued against the absent party, such party will be under a legal duty, should he wish to seek setting aside of the order, to sufficiently explain the reasons why he failed to so attend. In this case, while the Tenants insist that they were never served to appear in Court on 11/11/2021 when the impugned orders were issued ex parte , the Respondents assert that the Tenants were duly served but still failed to attend Court. The trial Court record does not reveal whether the Hon. Magistrate who granted the ex parte orders satisfied himself that there was an Affidavit of Service filed. The record does not also contain any Affidavit of Service to establish that the Tenants were indeed served as alleged. On their part, the Respondents accuse the Tenants of omitting some crucial documents from the Record of Appeal, including the subject Affidavit of Service. Needless to state, nothing stopped the Respondents from seeking the Court’s leave to fill up any gaps in the Record of Appeal by supplying the “missing” documents by way of filing their own Supplementary Affidavit, which option they however never exercised. In the circumstances, I agree that there is no evidence to demonstrate that the Tenant was served to appear in Court on 11/11/2021.
17. Be that as it may, it is clear that although there were several Applications filed and determined in the trial Court proceedings, the specific Application that was the subject of the Ruling rendered on 4/04/2025, which is the subject of this Appeal, was the Tenant’s Application dated 24/09/2021 seeking the setting aside of the orders granted on 11/11/2021. It is also evident that lack of service of the Respondent’s Application dated 5/10/2021, which gave rise to the orders made on 11/11/2021 was never one of the grounds cited in the Application dated 24/09/2021. The grounds cited were basically that the Tenants did not owe any rent arrears as alleged, that the Respondents concealed from the Court the fact that the issue of tenancy was already a subject of other suits in which an order to maintain the status quo was subsisting. Br intruding new arguments therefore, it appears that the Tenant lost sight of which Application was before the Hon. Magistrate for determination. To this extent, I find it unfair for the Tenants, in Ground 2 of the Memorandum of Appeal, to fault the Hon. Magistrate for failing to find that the Application dated 5/10/2021 was never served. How was she expected to make that finding when that issue was never placed before her for determination as part of the Application?
18. The major ground however argued by the Tenants in this Appeal is that the order said to have been given on 11/11/2021 used to levy the distress for rent, and subsequently varied, was non-existent and/or was a forgery. Again, this argument was never one of the grounds cited in the Application dated 24/09/2021, and it seems to be a ground that the Appellants allegedly “discovered” subsequent to filing of the Application. As aforesaid, the grounds cited for the Application were simply that the Tenants did not owe any rent arrears as alleged, and that the Respondents concealed from the Court the fact that the issue of tenancy was already a subject of other suits in which an order to maintain the status quo was subsisting. The Application not having been amended to formally include this “new” ground of forgery or non-existence of the order of 11/11/2021, I fail to understand how the trial Magistrate was supposed to determine it.
19. Coming back to the reason that the trial Magistrate gave for dismissing the Application, the Respondent argued that after the levy of distress for rent, the distrained goods were sold by public auction. The Tenant also argued that the Application is now overtaken by events since the subject Lease has since expired, and that by reason thereof, the premises were already leased out to a new tenant, who has since occupied it. Further, the Respondents submitted that the Tenant had concealed from the Court the fact that in a separate but similar matter between the same parties, filed at the High Court, the Tenant’s similar Application had been dismissed on the same ground that the Appellants, no longer being tenants in the premises, the Court could not grant orders in vain. All these statements made by the Respondents do not seem to have been controverted by the Tenants. In light thereof, again, I do not find it justifiable to fault the trial Magistrate for upholding those statements and, as such, reaching the finding that the Application had been overtaken by events. I say so because I wonder of what use it would have been for the Court to set aside the orders that had permitted the levy of distress, which orders had long been executed, and according to the Respondents, the lease having expired, the premises had already been leased out and occupied by a new tenant. It appears that what the Appellants are seeking to achieve, is a declaration that the levy of distress, though already carried out, was illegal. It appears that the Tenants then perhaps wish to use that declaration to pursue some kind of relief. If this is what the Appellants had hoped to achieve, then clearly, they are pursuing it through the wrong avenue.
20. Before I conclude, I wish to say something more about the allegation of forgery of the Court order. This is in addition to the fact that the ground was never even raised in the Application dated 24/09/2021. What I wish to say is that the Tenants having revealed that they reported the matter to the JSC for investigations, my view is that they should continue pursuing that route. Obviously, if any wrongdoing were committed, then appropriate declarations and orders shall be made by the appropriate authorities. Although the Court Administrator is said to have disowned the orders, in all fairness, I do not think the trial Magistrate, although she did not rule on the issue, possessed sufficient material to make a conclusive determination on whether or not there was forgery. This is because the Respondents, on their part, also strenuously resisted the allegation of forgery. Under these circumstances, I think the Tenants made the correct decision to invoke the JSC route, which institution is clearly more and better quipped, both legally and in terms of powers, resources and logistics, to conclusively deal with the matter.
21. Although therefore I have found that there is no evidence to demonstrate that the Tenant was served to appear in Court on 11/11/2021, I still decline to interfere with the trial Magistrate Court’s finding that the Application has now been overtaken by events.
Final Orders
22. The upshot of my findings above is that this Appeal fails, and is accordingly dismissed. As costs follow the event, the Respondents are awarded costs of the Appeal.
DELIVERED, DATED AND SIGNED AT NAIROBI THIS 18 TH DAY OF SEPTEMBER 2026
……………………..
WANANDA JOHN R. ANURO
JUDGE
Delivered in the presence of:
Both parties absent
Court Assistant: Amos Boso
1. This Appeal arises from the Ruling referred to above, delivered in the lower Court suit, in which the Appellants ( hereinafter referred to as “the Tenants ”) were the Respondents, while the current 1 st Respondent (Landlord) and the 2 nd Respondent (Auctioneer) were the Applicants. By the Ruling, the Court basically, declined to set aside its earlier orders given in the case allowing the Respondents to levy distress for rent against the Tenants.
2. The background of the matter is that by the Notice of Motion dated 5/10/2021, the 2 nd Respondent, in his own name, as the 1 st Respondent’s Auctioneer, sought orders to allow him levy distress against the Tenants for alleged rent arrears owed to the 1 st Respondent. The subject tenancy was at the property known as L.R. No. 209/4285 christened “ Agriculture House ” situated within the Nairobi Central Business District. I understand that the Application came up before Hon. Muchungi (Mrs) SRM on 19/10/2021 who directed that same be served for inter partes hearing on 5/11/2021. The record indicates that the Application was allowed ex parte on 11/11/2021 by Hon. E.M. Kagoni (Mr) and the Officer Commanding (OCS) Railways Police Station directed to provide security during the exercise. The record further indicates that the order was, upon the 1 st Respondent’s further Application dated 17/11/2021, subsequently varied to the extent that the portion directing provision of security was now directed to be executed by the OCS Central Police Station. It is not in dispute that thereafter, on 24/09/2021, the levy of distress for rent was executed and the Appellants property either carted away or partly carted away.
3. On the same 24/09/2021, by the Application of the same date, the Tenants, through Amuga & Co. Advocates , rushed to Court and applied for setting aside of the orders, denying owing any rent arrears as alleged. The Respondents were also accused of concealing from the Court the fact that the issue of tenancy was already a subject of Milimani High Court Commercial Case No. E213 of 2021 and also Milimani High Court Commercial Case No. E169 of 2021 , in which an order to maintain the status quo was subsisting. The record reflects that the Application was allowed on 5/05/2023 when the Respondents failed to attend Court nor file a response thereto. The effect of the order was therefore that leave to levy the distress for rent stood vacated.
4. The “ping-pong” continued when the Respondents, 3 months later, by the Application dated 30/08/2023, this time filed through Messrs Mwanzia & Co. Advocates , sought the setting aside of the orders granted on 5/05/2023 by which the permission to levy distress for rent was lifted. In his Affidavit in support of the Application, the 2 nd Respondent (Auctioneer) claimed that the failure by the Advocates to attend Court on the said date was because the matter was not cause-listed and as such, the Advocate did not know which Court to attend. He also acknowledged that they were yet to file a Replying Affidavit, and sought leave to do so. He also disclosed that the matter had since proceeded to arbitration and that the Tenants had produced the impugned order dated 5/05/2023 which they were heavily relying on. The Application was this time placed before Hon. B. M. Cheloti whom the record reflects to have, on 7/11/2023, ex parte lifted or vacated the orders for levy of distress granted on 5/5/2023, pending hearing of the Application.
5. The Tenants then filed their Replying Affidavit sworn by their Advocate, Paul Amuga , who deponed that the Respondents were duly served with the Application dated 24/11/2021 seeking lifting of the levy of distress orders but failed to file a response thereto, and that the Application was therefore correctly allowed on 5/05/2023. He also reiterated that the 3 months delay to challenge the orders was inordinate, and as such, accused the Respondents of inordinate delay. He also urged that even if the matter was not cause-listed, it was incumbent upon the Counsel to have logged into the virtual Court link as they knew which Court had been handling the case. On their part, the Respondents filed a Supplementary Affidavit sworn by the 2 nd Respondent (Auctioneer) claiming that they did not file a Replying Affidavit to the Application dated 24/11/2021 because the same was only served upon them 2 years later, by which time the Application had since been overtaken by events as the order permitting levy of distress had long been executed. He also maintained that the matter was not cause-listed for 5/05/2023.
6. The parties then filed Submissions on the Application. In his Submissions dated 8/03/2024, the Tenant’s Counsel however introduced the new issue that the Application was incompetent having been filed by Advocates who were not properly on record, urging that the matter was commenced as an Application by the 2 nd Respondent (Auctioneers) in his own name. It was also contended that the order granted on 11/11/2021 allowing the Respondents to levy distress for rent but later vacated on 5/05/2023 was an irregular order as there are two separate orders on record, both purportedly given on the same 11/11/2021. According to him therefore, there was an obvious manipulation of the orders, but he also revealed that the issue was a subject of an investigation by the Judicial Service Commission ( JSC ).
7. In her Ruling delivered on 24/05/2024, Hon. B. M. Cheloti allowed the Application, although she observed that the Respondent’s Counsel who was alleged to have been unable to establish the Court before which the matter would be heard because it was not cause-listed, did not herself swear an Affidavit to depone so, or to disclose what efforts she had made to find out the subject Court, noting that although the matter had initially been before different Magistrates, it had subsequently been always heard before herself (Magistrate). Her basis for allowing the Application was basically, because the Tenants had not demonstrated the prejudice they would suffer if the order permitting levy of distress were left to remain in place. The effect of the Ruling was therefore that the initial orders granted 5/05/2023 by which leave to levy of distress for rent was granted became restored. In effect therefore, the order allowing levy of distress were restored, and the Tenants’ Application dated 24/09/2021, seeking for setting aside of the orders for levy of distress had to therefore be heard afresh.
8. In respect to the now to be heard afresh Tenants’ Application dated 24/09/2021, seeking for setting aside of the orders for levy of distress, the Respondents filed the Replying Affidavit sworn on 14/02/2025, whereof it was deponed that the order given on 11/11/2021 was enforced on 24/11/2021 when distress for rent was levied, and the distrained goods subsequently sold on 18/12/2021 at a public auction. It was further urged that the lease the subject of the tenancy expired on 28/02/2021, and as such, the tenancy relationship lapsed, and the premises leased out to a new tenant. He also refuted the claim that the order was a forgery, urging that the same was verified by the OCS as authentic before being acted upon. It was further stated that the Tenants had concealed from the Court the fact that in a separate but similar matter between the same parties, filed by the Tenants at the High Court, the Tenant’s similar Application had already been dismissed on the ground that they were no longer tenants in the premises, distress for rent having been levied, and as such, the High Court could not grant orders in vain. The Court was therefore urged to find that the Application had been overtaken by events.
9. On their part, the Tenants filed a Supplementary Affidavit in which it was repeated that the order “purportedly” given on 11/11/2021 was forged. To support this claim, they exhibited a copy of a letter dated 9/05/2024 from the Court Administrator indicating that indeed, the order never originated from that Court. According to Counsel therefore, it is that forged order that the Respondents used to illegally evict the Tenants from the premises. He also reiterated that the issue had been lodged with the JSC for investigations. He also reiterated that in breach of clear directions given by the Court, the Respondents withheld timely service of the Application dated 5/10/2021 upon the Tenants.
10. It is on the above backdrop that Hon. B. M. Echeloti delivered the Ruling dated 4/04/2025 dismissing the Application, which Ruling is now the subject of this Appeal. In the Ruling, she held that the Tenants had not, in any of their Affidavits, denied the Respondents’ contention that the matter had been overtaken by events as the distress for rent had long been levied, and the distrained goods sold by way of public auction, and also that the lease had since expired and the premises leased out to a new tenant. As such, she agreed that the Application had been overtaken events, and thus dismissed it.
11. Aggrieved by this second decision, the Tenants filed this Appeal by way of the Memorandum dated 30/04/2025, listing 7 grounds crafted as follows:
“1. The Learned Magistrate erred in law and fact in failing to appreciate, sufficiently or at all, the nature of the Application which had been presented to the Court by the Appellants and further erred by finding and holding that the Application had been overtaken by events.
2. The Learned Magistrate erred in law and fact in failing to find and hold that the Appellants were entitled to have the order dated 11 th November, 2021 set aside as a matter of right (ex-debito justiciae), considering that the order was obtained irregularly after the Respondents deliberately failed to serve the application dated 5th October 2021 upon the Appellants as per the Court directions given on 19 th October 2021 but instead prosecuted the application without notice or service upon the Appellants.
3. The Learned Magistrate erred in law and fact by dismissing the Appellants application on the ground that the application had been overtaken by events yet the Appellants’ complaint before the court concerned the procedure and manner through which the order dated 11 th November, 2021 had been obtained by the Respondents and the legality of the order which the Respondents had used to unlawfully levy distress and illegally evict the Appellants from the business premises leased to the Appellants by the 1 st Respondent.
4. The Learned Magistrate erred in law and fact in failing to appreciate that the application which was before the court was challenging an order which was procured by the Respondents through abuse of court process, which is a matter concerning administration of justice and the application could not have been overtaken by events.
5. The Learned Magistrate erred in law and fact in basing her decision on irrelevant matters and further erred by failing to consider matters which were relevant, such as the validity of two orders purportedly given by the court or 11 th November, 2021 and purportedly issued separately by the court on 16 th November 2021 and 19 th November, 2021 bearing forged content and purportedly signed FOR Hon. E. M. Kagoni, Principal Magistrate.
6. The Learned Magistrate erred in law and fact by failing to uphold the rule of law when she refused to set aside an order which was procured by the Respondents illegally and the Learned Magistrate further erred by failing to protect the integrity of the court process when she not only allowed a falsified order to remain on record but also failed to issue orders or directives for the forged court order to be expunged or set aside and also subjected to investigations by the relevant government agencies and the culprits involved in falsification of Court record brought to book.
7. The Learned Magistrate erred in law and fact in failing to find and hold that forgery of a Court order or tampering with Court records by a party to a suit is a matter going to the root of administration of justice and an Application challenging such forgery, conduct or order can never be overtaken by events.”
12. In this Appeal, the parties filed written Submissions. The Tenants-Appellants’ Submissions is dated 28/11/2025, while the Respondents’ is dated 28/06/2026. The Tenants-Appellants’ also filed the Supplementary Submissions dated 5/08/2026. In the respective Submissions, the parties basically reiterated their earlier rival contentions, save for citing authorities.
Determination
13. The issue for determination herein is “ whether the trial Court erred in declining to set aside the orders said to have been granted on 11/11/2021 permitting the Landlord and Auctioneer (Respondents) to levy distress for rent against the Tenants-Appellants .”
14. As reiterated in a plethora of cases, this being a first appellate Court, it has the duty to evaluate, re-assess and re-analyze the evidence before the trial Court, and draw its own conclusion (see for instance, the case of Kenya Ports Authority vs Kuston (Kenya) Ltd [2009] 2 EA 212 .
15. The trial Court having, from the record, granted the impugned order on 11/11/2021 when the Tenant did not show up in Court, it is not in dispute that the Court possessed the power, in the exercise of its discretion, and on sound grounds, to set aside or vary the order. In an Appeal challenging exercise of such discretion, the limits within which an Appellate Court can interfere were reiterated by the Supreme Court in the case of Musa Cherutich Sirma v Independent Electoral and Boundaries Commission & 2 others [2019] eKLR , as follows:
“………… we affirm that we would only interfere with the Appellate Court’s exercise of discretion if we reach the conclusion that in exercise of such discretion, the Appellate Court acted arbitrary or capriciously or ignored relevant facts or completely disregarded the principles of the governing law leading to an unjust order. Conversely, if we find that the discretion has been exercised reasonably and judiciously, then the fact that we would have arrived at a different conclusion than the Court of Appeal is not a reason to interfere with the Court’s exercise of discretion.”
16. In the event that a party is served but fails to attend Court, and an adverse order is then issued against the absent party, such party will be under a legal duty, should he wish to seek setting aside of the order, to sufficiently explain the reasons why he failed to so attend. In this case, while the Tenants insist that they were never served to appear in Court on 11/11/2021 when the impugned orders were issued ex parte , the Respondents assert that the Tenants were duly served but still failed to attend Court. The trial Court record does not reveal whether the Hon. Magistrate who granted the ex parte orders satisfied himself that there was an Affidavit of Service filed. The record does not also contain any Affidavit of Service to establish that the Tenants were indeed served as alleged. On their part, the Respondents accuse the Tenants of omitting some crucial documents from the Record of Appeal, including the subject Affidavit of Service. Needless to state, nothing stopped the Respondents from seeking the Court’s leave to fill up any gaps in the Record of Appeal by supplying the “missing” documents by way of filing their own Supplementary Affidavit, which option they however never exercised. In the circumstances, I agree that there is no evidence to demonstrate that the Tenant was served to appear in Court on 11/11/2021.
17. Be that as it may, it is clear that although there were several Applications filed and determined in the trial Court proceedings, the specific Application that was the subject of the Ruling rendered on 4/04/2025, which is the subject of this Appeal, was the Tenant’s Application dated 24/09/2021 seeking the setting aside of the orders granted on 11/11/2021. It is also evident that lack of service of the Respondent’s Application dated 5/10/2021, which gave rise to the orders made on 11/11/2021 was never one of the grounds cited in the Application dated 24/09/2021. The grounds cited were basically that the Tenants did not owe any rent arrears as alleged, that the Respondents concealed from the Court the fact that the issue of tenancy was already a subject of other suits in which an order to maintain the status quo was subsisting. Br intruding new arguments therefore, it appears that the Tenant lost sight of which Application was before the Hon. Magistrate for determination. To this extent, I find it unfair for the Tenants, in Ground 2 of the Memorandum of Appeal, to fault the Hon. Magistrate for failing to find that the Application dated 5/10/2021 was never served. How was she expected to make that finding when that issue was never placed before her for determination as part of the Application?
18. The major ground however argued by the Tenants in this Appeal is that the order said to have been given on 11/11/2021 used to levy the distress for rent, and subsequently varied, was non-existent and/or was a forgery. Again, this argument was never one of the grounds cited in the Application dated 24/09/2021, and it seems to be a ground that the Appellants allegedly “discovered” subsequent to filing of the Application. As aforesaid, the grounds cited for the Application were simply that the Tenants did not owe any rent arrears as alleged, and that the Respondents concealed from the Court the fact that the issue of tenancy was already a subject of other suits in which an order to maintain the status quo was subsisting. The Application not having been amended to formally include this “new” ground of forgery or non-existence of the order of 11/11/2021, I fail to understand how the trial Magistrate was supposed to determine it.
19. Coming back to the reason that the trial Magistrate gave for dismissing the Application, the Respondent argued that after the levy of distress for rent, the distrained goods were sold by public auction. The Tenant also argued that the Application is now overtaken by events since the subject Lease has since expired, and that by reason thereof, the premises were already leased out to a new tenant, who has since occupied it. Further, the Respondents submitted that the Tenant had concealed from the Court the fact that in a separate but similar matter between the same parties, filed at the High Court, the Tenant’s similar Application had been dismissed on the same ground that the Appellants, no longer being tenants in the premises, the Court could not grant orders in vain. All these statements made by the Respondents do not seem to have been controverted by the Tenants. In light thereof, again, I do not find it justifiable to fault the trial Magistrate for upholding those statements and, as such, reaching the finding that the Application had been overtaken by events. I say so because I wonder of what use it would have been for the Court to set aside the orders that had permitted the levy of distress, which orders had long been executed, and according to the Respondents, the lease having expired, the premises had already been leased out and occupied by a new tenant. It appears that what the Appellants are seeking to achieve, is a declaration that the levy of distress, though already carried out, was illegal. It appears that the Tenants then perhaps wish to use that declaration to pursue some kind of relief. If this is what the Appellants had hoped to achieve, then clearly, they are pursuing it through the wrong avenue.
20. Before I conclude, I wish to say something more about the allegation of forgery of the Court order. This is in addition to the fact that the ground was never even raised in the Application dated 24/09/2021. What I wish to say is that the Tenants having revealed that they reported the matter to the JSC for investigations, my view is that they should continue pursuing that route. Obviously, if any wrongdoing were committed, then appropriate declarations and orders shall be made by the appropriate authorities. Although the Court Administrator is said to have disowned the orders, in all fairness, I do not think the trial Magistrate, although she did not rule on the issue, possessed sufficient material to make a conclusive determination on whether or not there was forgery. This is because the Respondents, on their part, also strenuously resisted the allegation of forgery. Under these circumstances, I think the Tenants made the correct decision to invoke the JSC route, which institution is clearly more and better quipped, both legally and in terms of powers, resources and logistics, to conclusively deal with the matter.
21. Although therefore I have found that there is no evidence to demonstrate that the Tenant was served to appear in Court on 11/11/2021, I still decline to interfere with the trial Magistrate Court’s finding that the Application has now been overtaken by events.
Final Orders
22. The upshot of my findings above is that this Appeal fails, and is accordingly dismissed. As costs follow the event, the Respondents are awarded costs of the Appeal.
DELIVERED, DATED AND SIGNED AT NAIROBI THIS 18 TH DAY OF SEPTEMBER 2026
……………………..
WANANDA JOHN R. ANURO
JUDGE
Delivered in the presence of:
Both parties absent
Court Assistant: Amos Boso