https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5240

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT OF KENYA** **AT MILIMANI:** **ENVIROMNENT AND LAND CASE APPEAL NUMBER E141 OF 2024** **DAWIT HAGOS T/A ESSEY CAFFE………..………………………………APPELLANT** **VERSUS** **ARKPOINT PROPERTIES LIMITED AND** **JEKAN COMPANY LIMITED ………………………………………....…RESPONDENTS** **JUDGMENT** ***(Being An Appeal from the Ruling of Hon. L.M. Njora, Milimani Chief Magistrates’ Court in Environment and land case No E180 of 2023 delivered on 23rd January 2024. Consolidated with cross appeal (milimani elc Appeal no E141 of 2024) from the ruling of Hon Lucy M Njora in Milimani Chief Magistrates Court in Environment and land case number E180 of 2023 dated 27. 8.2024)*** **A. Introduction;** 1. Before this court is an appeal and cross-appeal (Milimani ELC Appeal No E019/2024 between Jekan Company Limited v. Dawit Hagos t/a Essey Caffe & Arkpoint Properties Limited), arising from the ruling of Hon. L M. Njora (Senior Principal Magistrate) delivered on 23rd January 2024 in Milimani Chief Magistrate’s Court ELC Case No. E180 of 2023 (“the trial court”) where the trial court found in favour of the Plaintiff/Applicant (Dawit) and granted the following orders: - “1. The Plaintiff is awarded Kshs. 2,000,000 as general damages for constructive eviction. 2. The Plaintiff is awarded Kshs. 2,000,000 as reimbursement for the renovation of the restaurant. 3. The Plaintiff's prayer for loss of business in the sum of Kshs. 4,442,960.37 is hereby dismissed. 4. The Plaintiff is awarded the costs of the application and the suit.” 2.The Appellant/1st Defendant (“Jekan”) being aggrieved with the ruling filed memorandum of Appeal dated 14th February, 2024 on grounds that: “1.The learned trial magistrate erred in law and fact in wholly disregarding the evidence adduced and the submissions tendered by the Appellant herein. 2.The learned trial magistrate erred in law and fact in finding that the contract between the parties evidenced by the tenancy agreement dated 28th September 2020 did not provide for a clause on compensation for any renovation made by the tenant. 3. The learned trial magistrate erred in law and in fact in failing to observe that the 2nd Respondent did not plead for compensation for the renovations in his pleadings and had not particularized the same to the required legal threshold. 4. The learned trial magistrate erred in law and in fact in failing to appreciate that the claim for renovation costs as special damages ought to have been specifically pleaded and proved and, in this case, no evidence was led by the 1st Respondent to fortify his claim for special damages. 5. The learned trial magistrate erred in law and in fact in considering irrelevant factors, using wrong principles, and misapprehending the evidence adduced, thereby arriving at a wholly erroneous and inordinately high award of general damages of Kshs. 2,000,000/=. 6. The learned trial magistrate erred in law and in fact by condemning the Appellant without affording it an opportunity to be heard, rendering the entire proceedings and ruling defective and in breach of the rules of natural justice. 7. The whole of the ruling was against the law, the weight of the evidence adduced, and was erroneous and unfair.” 3. Jekan sought the following reliefs: “a) This appeal be allowed. b) The whole Ruling delivered by Hon. Lucy Njora on 23rd January 2024 in Milimani MCELC/E180/2023: Dawit Hagos t/a Essey Caffe v Jekan Company Limited and Arkpoint Properties Limited be reviewed, varied and/or set aside. c) The costs of the Appeal be borne by the Respondents. d) This Honourable Court be pleased to grant such other or further relief as it may deem fit and just in the circumstances of this Appeal 4.The Cross-Appeal (being Milimani ELC Appeal No. E141 of 2024, Dawit Hagos t/a Essey Café v Jekan Company Limited & Ark point Properties Limited) arose from the Ruling delivered on 27th August 20024 where the trial magistrate dismissed the Appellant/Applicant's application dated 17.5.2024 who sought orders for retrieval of its movable property from the suit premises of Respondent on grounds of being functus officio having determined the matter. The 1st Respondent/Appellant (“Dawit”) being aggrieved with the ruling appealed the decision of the learned trial magistrate vide a Memorandum of Appeal dated 23rd September, 2024 on following grounds: “1. The Learned Trial Magistrate erred in law and in fact in wholly dismissing the Appellant's Application dated 17th May 2024. 2. The Learned Trial Magistrate erred in law and in fact in finding that it was functus officio and thus wanting in jurisdiction to determine the Application. 3. The Learned Trial Magistrate erred in law and in fact in failing to appreciate that the 1st Respondent was in violation of its Orders issued on 29th May 2023, maintaining the status quo during the pendency of the hearing and determination of the Application dated 24th May 2023 4. The Learned Trial Magistrate erred in law and in fact in failing to appreciate that the Orders maintaining the status quo barred the 1st Respondent and its agents from interfering with the Appellant's enjoyment of quiet possession pending determination of the Application dated 24th May 2023. 5. The Learned Trial Magistrate erred in law and in fact in failing to appreciate that the consequence of the Ruling rendered on 23rd January 2024 was that the Appellant was to vacate the suit premises, during which process its property was unlawfully carted away by the 1st Respondent 6. The Learned Trial Magistrate erred in law and in fact in failing to appreciate that it had postponed the Ruling on the Application dated 24th May 2023 several times and, during that period, the parties had by consent agreed to file submissions on the whole suit. Had the Ruling been delivered in time, the 1st Respondent would not have taken advantage of the status quo orders to cart away the Cross-Appellant's property.” 6.Dawit (Appellant) sought the following reliefs: - “(a) This Appeal be allowed. (b) The whole Ruling delivered by Hon. Lucy Njora on 27th August 2024 in Dawit Hagos T/A Essey Caffe v Jekan Company Limited & Arkpoint Properties Limited be reviewed, varied, substituted and/or set aside. (c) That the costs of the Appeal be borne by the Respondents. (d) This Honourable Court grant such further or other relief as it may deem fit and just in the circumstances of the Appeal. Background of the suit: 7.The dispute between Appellants and Respondents in the appeal and cross appeal arose from a tenancy agreement dated 28h September 2020, under which Arkpoint Properties Limited, acting on behalf of Jekan Company Limited, leased L.R. No. 209/2086 to Dawit Hagos t/a Essey Café for a fixed term period of five (5) years and three (3) months, expiring on 28th November 2025 with no termination clause. The Appellant /Respondent allegedly terminated the tenancy agreement between the Respondent (Dawit) and Self-vide a demand notice dated 11.5.2023 through Babu Law firm that prompted the Appellant (Dawit) to institute the suit against the 1st Defendant /Appellant/ in Milimani ElCE180/2023. 8.Dawit Hagos t/a essey cafe approached the court for orders to restrain its eviction out of the suit premises and compensation for breach of contract and renovations undertaken in the suit premises which culminated in delivery of the Ruling dated 23rd January 2024. Jekan upon being dissatisfied with the ruling filed Appeal No E019/2024 before this honorable court together with application for stay of execution of decree pending hearing and determination of appeal dated 20th February 2024 which was granted in favor of Jekan (Appellant) vide a ruling dated 17th May, 2024 by Hon. Justice M.D Mwangi on conditional 30 days stay of execution upon payment of Kshs 1,500,000.00 to Dawit. Dawit (Respondent) filed an application dated 17th May 2024 seeking for orders for retrieval of its property from the respondent which was dismissed on the 27th August 2024 on grounds that the honorable trial magistrate was functus officio having delivered its ruling on 23th January 2024. Dissatisfied with the ruling Dawit filed a cross- appeal being milimani elca No E141/2024 between Dawit Hagos t/a essey cafe vs Jekan company limited & another. **Directions of the Court :** 9.The Honourable Court on the 17.3.2026 directed that Appeal and Cross Appeal be disposed of by way of written submissions, ELCA No E019/2024 being the lead file whereby The Appellant/1st Respondent (“Jekan”) filed two submissions both dated 20th May 2026 in respect to ELC Appeal E019/2024 and ELC Appeal E0141/2024 while the 1st Respondent/Appellant (“Dawit”) filed its submissions dated 29th June 2026 in opposition and support of ELC A NO E019/2024 and E141/2024 respectively. **Submissions by Appellant (Jekan)** 10.Jekan(Appellant) submitted on the grounds of appeal as enumerated above and averred that the learned trial magistrate misdirected herself in both law and fact by failing to properly evaluate the pleadings, evidence, written submissions and applicable legal principles thereby arriving at findings unsupported by the record placing reliance on the land mark case of Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 on the duty of a first appellate court to re-consider and evaluate evidence on record and Mbogo & Another v Shah [1968] EA 93 on the circumstances under which an appellate court may interfere with exercise of judicial discretion. 11.Jekan urged that the learned trial Magistrate erred in holding it had breached the terms of the contract and awarded the 1st Respondent Kshs 2,000,000.00 being damages for renovations undertaken by the respondent contrary to the lease agreement thereby rewriting the contract between the parties contrary to settled contractual principles. In support it relied on the case of National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & another [2001] KECA 362 (KLR) where the court held that parties are bound by their contracts and not the duty of courts to rewrite the parties’ contracts. 12.The Appellant contended an award for renovations constituted special damages, which must be specifically pleaded and strictly proved though the 1st Respondent failed to particularise the alleged expenditure or produce receipts, invoices, valuation reports, contractor agreements, or any other documentary evidence to substantiate the claim, rendering the award speculative citing the case of Capital Fish Kenya Limited v Kenya Power & Lighting Company Limited [2016] KECA 56 (KLR), which affirmed that special damages must be strictly proved so to Nyandigisi v Oirere (Civil Appeal E132 of 2023) [2025] KEHC 3115 (KLR) and Bonham Carter v Hyde Park Hotel Ltd [1948] 64 TLR 177 in support of the principle that damages cannot be awarded merely on assertions unsupported by proof. 13.The Appellant in his submission disputed the award of Kshs. 2,000,000 for general damages for constructive eviction, arguing that the dispute arose purely from a Landord–tenant relationship and no evidence of unlawful eviction, harassment, or interference with quiet possession was established but maintains that the Respondent was served with a termination notice pursuant to sale of the suit property and any remedy for the respondent was in contract rather than tort citing the case of Kenya Tourist Development Corporation v Sundowner Lodge Limited [2018] eKLR that affirmed the principle that general damages are not recoverable for breach of contract unless the breach gives rise to an independent tort. 14.The Appellant further submitted that it was condemned unheard, contrary to Article 50 of the Constitution of Kenya, 2010, as the trial court conclusively determined liability and awarded damages through an interlocutory ruling without affording it an opportunity to adduce viva voce evidence, cross-examine witnesses, or fully ventilate the dispute at trial which breached the rules of natural justice and occasioned a miscarriage of justice to it .The Appellant(Jekan) accordingly urged the court that the appeal is merited and be allowed, ruling of the trial court dated 23rd January 2024 be set aside and awards for general damages, special damages, and costs be vacated. 15.The Appellant /Respondent in opposition of the Appeal ( ELC Appeal No. E141 of 2024) submitted that the trial court correctly held that it was functus officio upon delivering its final ruling on 23rd January 2024 hence lacked jurisdiction to entertain the Appellant's subsequent application dated 17th May 2024 citing the case of Telkom Kenya Limited v John Ochanda & 996 Others [2014] eKLR and Raila Odinga & 2 Others v IEBC & 3 Others [2013] eKLR in support of his contention that the doctrine of functus officio is founded on the principle of finality in litigation that bars a court from reopening a matter it has rendered a final decision, save for the limited exceptions provided under Section 99 of the Civil Procedure Act 2010. The Respondent (Jekan)consequently urged the Court to uphold the finding by the trial magistrate that the court was functus officio as Appellant failed to establish any legal or evidential basis for the relief sought and ELC Appeal No. E141 of 2024 be dismissed with costs. **Submissions by Respondent /Appellant**: 16.Appellant/Respondent (Dawit) vide its submissions dated 29th June, 2026 listed issues for determination being Whether the trial court was functus officio and thereby lacked jurisdiction to determine the application dated 17th May 2024, the trial court failed to give effect to the status quo orders issued on 29th May 2023, trial court failed the consequences of the Ruling delivered on 23rd January 2024, including the alleged removal and detention of the Appellant's movable property, the dismissal of the application dated 17th May 2024 was proper and Who should bear the costs” 17.The Appellant /Respondent (Dawit) urged the Court to dismiss the appeal and uphold the trial court's ruling dated 23.1.2024, contending that the Respondent /Appellant has misrepresented both the facts and applicable law. The respondent (Dawit) urged that the Appellant is in contempt of the conditional stay orders calling upon it for payment of Kshs. 1,500,000/= to Respondent therefore has approached the court with unclean hands, hence undeserving of the Court's discretionary relief. 18.The Respondent(Dawit) submitted that the trial court misdirected itself on the issue of functus officio that it had determined the matter on merits hence could not entertain the application though the court was properly clothed with residual powers pursuant to section 34 of the Civil Procedure Act 2010 to handle the matter citing the case of Patrick Nyaga & another v Sanitam Services (E.A) Limited [2021] KEHC 6926 (KLR) where the Court held that the doctrine of functus officio does not preclude a court from determining procedural applications necessary to give effect to its existing orders or arrangements. The Appellant contended that status quo order dated 29.5.2023 was to be maintained until the inter partes which interpates hearing was set for 14.6.2023 so to 12.7.2023 citing the case of Muturi v. Ndumbi & 3 others [2025] KEELC 7227 (KLR) where the court stated that acting contrary to a court order amounted to contempt of court hence the trial court acted improperly in dismissing the Application dated 17th May, 2024 thereby enabled the Respondent (Jekan) to remove and detain the Appellant's properties despite having failed to comply with this court’s conditional stay orders dated 7.5.2024. 19.The Appellant (Dawit) further submitted that dismissal of the application by trial magistrate on jurisdictional grounds denied him access to justice thereby frustrating the overriding objective of civil litigation. He further submitted that its application raised substantive questions regarding the unlawful detention of his property, breach of the status quo orders and entitlement to restorative relief, all of which required determination on their merits hence urged the Court to allow the appeal, set aside the ruling of 27th August 2024, grant the restorative orders sought with costs of the appeal in its favor. 20. The Appellant (Dawit) submitted that it was agreed by consent that the parties file written submissions on compensation to Dawit on 12.7.2023 which the parties complied with hence the trial court was correct in disposing of the main suit at the interlocutory stage hence the awards for renovations and constructive eviction should not be disturbed as same is supported by photographic evidence on record so to affidavit evidence and written submissions. The Appellant (Dawit) urged that the parties were accorded a fair hearing and urged the court to dismiss the appeal with costs but allow cross appeal so to the reliefs sought with costs. **Issues for determination:** 21.Having considered the record of appeal on record inclusive and grounds of appeal in the appeal and cross appeal together with the party’s written submissions the following issues call for determination: 1. Whether the Appellant (Jekan), was denied a right to a fair 2. Whether the trial court exceeded its jurisdiction by disposing of the main suit through affidavit evidence 3. Whether the trial court erred in law and fact in awarding the Respondent Kshs. 2,000,000 for renovations and Kshs. 2,000,000 as general damages. 4. Whether status quo orders were in force and valid 5. Whether, the trial court erred in invoking the doctrine of functus officio when dismissing the application dated 17.5.2024 6. Whether the appeal and the cross- appeal are merited 7. whether the appellants are entitled to the reliefs sought. **Analysis and determination:** 22.This Court has been called upon to evaluate and reconsider the evidence on record in disposition of the appeals on merit as the Appellate court of first instance being guided by the principles as set in the celebrated case of **Selle and Another vs. Associated Motor Boat Company Ltd & Others, [1968] EA 123,** where Sir Clement De Lestang, Vice President of the Court of Appeal for East Africa stated: - “(a) An appeal from the High Court is by way of a re-trial and the Court of Appeal is not bound to follow the trial judge’s findings of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of the demeanour of a witness is inconsistent with the evidence generally; (ii) there was no valid reason for interfering with the learned judge’s finding on the facts; The Court in **Mbogo & Another v Shah [1968] EA 93** coined that: “(if) in the circumstances the judge exercised correctly his discretion to refuse the Application to set aside the judgement (ii) a Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that he misdirected himself in some matter and as a result arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge was clearly wrong in the exercise of his discretion and that as a result there has been misjustice.” 23. Based on cited caselaw it is trite that Appellate court will only interfere with the finding of a trial court in circumstances where a judge or magistrate misdirected herself or himself in a matter thereby arriving at a wrong decision or was wrong in the exercise of its judicial discretion hence occasioning a miscarriage of justice to the parties or there is sufficient reason to interfere with the judge's findings on facts. it is the duty of this court to reevaluate the affidavit evidence on record vis avis the grounds of appeals to arrive at a just determination thereof. **Whether the Appellant, (Jekan), was denied the right to a fair hearing:** 24. The Appellant (Jekan) contended that it was denied an opportunity to prove its case orally and cross examine the respondent hence compromising its right to a fair hearing pursuant to **Article 50(1) of the Constitution, 2010** **that provides for right to a fair hearing as follows**: “Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body” 25.The court in case of **MHM v KNM [2020] KEHC 9523 (KLR)** stipulated that a suit can be heard through oral evidence and cross examination, but can also be heard through affidavit evidence and written submissions (Paul Njeru Mwathe – v- Vidya Thira Mwathe & 3 Others [2018] eklr. However, it is upon the parties to agree on how to conduct their case. What is important is for the court to ensure the fair hearing of the case under Article 50(1) of the Constitution 2010. Under Article 159 of the Constitution, parties have the responsibility of assisting the court in the just, proportionate and disposal of their case. This can be done through oral hearing, or through affidavit evidence. The question is whether, where a party requests to have an oral hearing so that he can have the opportunity to test the evidence of the other side through cross-examination, he can be denied that opportunity. 26.The Supreme Court in **Mohamed Abdi Mahamud v. Ahmed Abdullahi Mohamad & 3 others Petition 7 of 2018 consolidated** with **Petition 9 of 2018[2018] eKLR** determined what constitutes a right to fair hearing as follows: **-** **“[86We are also minded that the interests of justice dictate that this Court ensures that all parties to a dispute are accorded a fair hearing so as to resolve the dispute judiciously. This is particularly so because what is at stake is the Appellant’s right to a fair election as well as the right of the voters to non interference with their already cast votes, the will of the people, so to speak. It is on this breath that we must consider whether the Appellant’s right to a fair hearing and trial will be infringed upon by the denial of admission of new evidence**. **[87] In the circumstances, was there a reasonable opportunity of hearing given to the Appellant? In this regard, what then are the norms or components of a fair hearing? In the matter of Indru Ramchand Bharvani & Others v. Union of India & Others, 1988 SCR Supl. (1) 544, 555, the Supreme Court of India, found that a fair hearing has two justiciable elements: (i) an opportunity of hearing must be given; and (ii) that opportunity must be reasonable (citing Bal Kissen Kejriwal v. Collector of Customs, Calcutta & Others, AIR 1962 Cal. 460). It is important to restate that a literal reading of the provisions of the Constitution of Kenya show that the right to a fair hearing is broad and includes the concept of the right to a fair trial as it deals with any dispute whether they arise in a judicial or an administrative context. Comparative experience shows that the European Court has elaborated on the question regarding the scope of the right to fair trial applying the right in both civil and in criminal matters. The European Court of Human Rights (European Court) has severally explained that: “it is central to the concept of a fair trial, in civil as in criminal proceedings, that a litigant is not denied the opportunity to present his or her case effectively before the court.” (See Steel and Morris v. United Kingdom, [2005] ECHR 103, paragraph 59).** 27.Turning to the case in point and proceedings on record dated 12th July, 2023, it is evident the application dated 24th May 2023 was listed for interpates hearing when learned counsel for the Plaintiff/Applicant /(Dawit ) informed the court that Dawit was interested in compensation and parties could file written submissions. Despite no response by Jekan’s counsel noted on record the learned trial Magistrate directed that parties do file submissions on compensation and fixed the matter for ruling, not judgement, on 5.10. 2023.The ruling of the trail court dated 24.1.2024 is specific that the matter was coming up for ruling of the application dated 24.5.2023 that disposed of the main suit. The Respondent and Appellant filed their written submissions on the assumption that the matter for disposal was the main suit, not the application hence the contents of the ruling dated 23.1`.22024. It is not doubted Jekan and Dawit participated in the hearing of the application through written submissions but not the main suit. Jekan contended that the trial court did not consider its submissions and documentations which assumption is not true as the trial court in declining to award the loss of business damages considered Jekan’s submissions. 28.A careful perusal of the hand-written proceedings in the original court file dated 29.5.2023 and 12.7.2023 both periods inclusive show that application dated 23.5.2023 was the one set for disposal by written submissions. Nowhere in the court record was it expressly recorded that the parties consented to disposal of the main suit by way of affidavit evidence and written submissions on compensation to Respondent (Dawit). It is evident from the ruling dated 23.1.2024 that the learned trial magistrate expressly stated that the matter was coming up for ruling of the application that disposed of the main suit at the interlocutory stage thereby denying the Appellant its constitutional right to a fair hearing. Article 25 of the constitution of Kenya 2010 provides that a right to a fair hearing cannot be limited. The court in the case of **Peter Nganga Muiruri v Mary Wangui Njagu & 11 others [2021] KEELC 1802 (KLR)** stipulated: as follows “All these are disputed averments that must be put into test and the same can only be done at the full trial wherein the parties would be allowed to call evidence and produced the said evidence and not by way of affidavit evidence, nor can the Court determine the same with finality at the interlocutory stage. See the case of Edwin Kamau Muniu…. Vs Barclays Bank of Kenya HCCC 1118 of 2002 to the effect that; “In an interlocutory Application, the Court is not required to determine the very issues which will be canvassed at the trial with finality. All that the Court is entitled to decide at this stage is whether the Applicant is entitled to an injunction sought on the usual criteria.” 29.The learned trial Magistrate by disposing of the main suit at the interlocutory stage/proceedings exceeded its jurisdiction by denying the appellant a chance to cross examine the respondent and its witness on the issues at stake for hearing and determination on merits. The learned trial magistrate by converting interlocutory proceedings and findings into a final judgment amounted to procedural impropriety thereby infringing on the appellant’s right to a fair hearing hence the appeal succeeds on this ground. **Whether the trial court erred in law and fact in awarding the Respondent Kshs. 2,000,000 for renovations and Kshs. 2,000,000 as general damages.** 30.The Appellant (Jekan) contended that awards for renovation and general damages by the trial court was not pleaded and if pleaded was not strictly proved thereby violating the cardinal rule that parties are bound by their pleadings as stipulated in the case of **Migore Daniel Otieno v South Nyanza Sugar Co Ltd [2018] KEHC 5465 (KLR) and restated in the case of Raila Amolo Odinga & Another vs. IEBC & 2 others (2017) eKLR and Kenya Commercial Bank Limited v Popatlal Madhavji & another [2019] KECA 799 (KLR )-** 31.From the cited case law it is settled that parties are bound by their pleadings from which issues for determination by a court in any given dispute flow. At paragraph 11 of the Plaint dated 24.5.2023, Dawit -(Respondent) stated that it spent an amount in excess of Kshs 2,000,000.00 for renovation of the premises (disputed property) so to its written submission dated 20.6.2026 hence entitled to its refund. It is not doubted The Appellant and Respondent contractual obligations flow from the lease agreement dated 28.9.2020. A careful perusal of the tenancy agreement discloses that the tenant would make alterations and additions to the premises at his own cost and with approval of the landlord at to suit his needs (refer to clause of the lease agreement pertaining obligations of the user). The Appellant and Respondent were bound by the terms of the tenancy agreement and any departure therefrom would be through a mutual agreement by the parties or undertaking by either of them. At close of the interlocutory hearing of the matter, no valuation report, receipts or acknowledgement by the lessor/Appellant/Respondent of kshs 2,0000,000/ having been spent by respondent were filed on record by Dawit alongside the documents filed on record to prove the renovation expenses. There is no proof of express authority granted to the Respondent (Dawit) by Jekan (Appellant) to undertake the renovations on the suit premise. The court appreciates that the respondent annexed photographs as proof of renovation works undertaken to improve the property in question which does not strictly prove the monetary expenses incurred while undertaking renovation exercise therein. The Appellant/1st Respondent/ submitted that renovation cost ought to be specifically pleaded and proved. From the affidavit evidence on record the sum of kshs 2000000/ though pleaded in the plaint was not specifically/strictly proved. The award of kshs 2000,000/= in favour of the Respondent (Dawit) was against the known legal principle that special damages must be specifically pleaded and proved hence should be interfered with. 32.The Appellant (Jekan) urged that the award for constructive eviction was erroneous as the trial court considered irrelevant factors, used wrong principles, and misapprehended the evidence adduced, thereby arriving at a wholly erroneous and inordinately high award of general damages of Kshs. 2,000,000/=. It is settled that damages for breach of contract are compensatory in nature intended, subject to the duty to mitigate loss, to place the innocent party in the position they would have occupied had the breach not occurred. 33.In the present case, the Appellant prayed for compensation for alleged loss of business and goodwill arising from premature termination of its occupation of the suit premise as termination of the lease agreement pursuant to sale of the property to another party constituted a breach of the fixed term lease agreement in force for 5 years and 3months effective 28.9.2020. Though the lease was prematurely terminated by Respondent (Jekan), the circumstances occasioning termination of the lease agreement could not be determined summarily but through substantive hearing and determination of the dispute between parties. The Appellant having not been heard on merit so to Respondent, it is the finding of this court that the award of kshs 2,000,000.00 in favor of Appellant as general damages for constructive eviction by the learned trial magistrate was erroneous in law and fact since not supported by evidence on record and the appeal succeeds on this ground **Whether the trial court properly invoked the doctrine of functus officio.** 34. The Appellant (Dawit) contended that the learned trial court in citing the doctrine of functus officio in dismissing the Application dated 17th May, 2024 was erroneous. The court in the case of Patrick Nyaga & another v Sanitam Services (E.A) Limited [2021] KEHC 6926 (KLR), cited with approval by the supreme court in the case of Samuel Macharia &another vs kcb &2 others applic no 2/2011 and Telkom Kenya ltd vs john ochanda and others (2014) eklr it was restated that: - Functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon on merit. The general rule that final decision of a court cannot be re-opened is founded on the principle of finality to litigation though subject exceptions provided under section 99 of the civil procedure act,2010.” 35.The Supreme Court in the case of Raila Odinga & 2 others v Independent Electoral & Boundaries Commission & 3 others (2013) eKLR, stipulated that “The functus officio doctrine is one of the mechanisms by which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter. The [principle] is that once such a decision has been given, it is (subject to any right of appeal to superior body or functionary) final and conclusive. Such a decision cannot be reviewed or varied by the decision maker.” 36. The applicant’s bone of contention with the impugned ruling is that the Respondent through its agents, removed and retained its property after locking the suit premises in contravention of the law as status quo order was in force pending interpates hearing of the application on 14.6.2023 and 12.7.2023 hence Jekan is dutybound to release its carried away goods to it. As per the original court records (Milimani mcelc180/2023) in paticular the proceedings dated 12.7.2023, the interim status quo order then in force was not extended implying it was vacated. There was no status quo order breached as at 12.7.2023 or on the 17.5.2024 when the trial court was moved by Applicant for orders of release of the goods by Appellant (Dawit). 37.. The essence of the doctrine of functus officio is that litigation must come to an end though a court retains residual inherent jurisdiction/discretion to deal with a matter initially determined on merit on exceptional circumstances as set out in section 99 of the civil procedure Act,2010. However, in dismissing the application, the trial court held that the Appellant had failed to substantiate its claim, noting that the alleged removal of goods occurred during the pendency of the suit, that no complaint was brought to the court's attention at the time, and that the Appellant ought to have prepared an inventory of the items allegedly removed. Having found that the trial court acted in excess of jurisdiction to dispose of the main suit at the interlocutory proceedings(stage) without according the parties a chance to ventilate their dispute at the hearing of main suit ,The trial court was seized with jurisdiction to deal with the application dated 17.5.2024 hence find the learned trial court improperly invoked the doctrine of functus officio in dismissing the application dated 17.5.2024 placing reliance in the case of **Muneer N Alibhai t/a Diani Gallery v South Coast Holdings Limited [2020] KEHC 5336 (KLR)** where the court stipulated that: “. A tenancy vests upon the tenant a property right which like all possessions ought not to be deprived arbitrarily. In Gusii Mwalimu Investment Co. Ltd vs Muahimu Hotel Kisii Ltd, [1996] eKLR the Court of Appeal while addressing the right of a landlord to re entry had this to say: “To obtain possession by carrying out illegal distress is per se wrong. if what the landlord did in the case is allowed to happen, we will reach a situation where the landlord will simply walk into the diminished premises exercising his right of re-entry and obtaining possession extra-judicially. A court of law cannot allow such a state of affairs whereby the law of the jungle takes over. It is a trite law that unless a tenant consents or agrees to give possessions, the landlord has to obtain all orders from a competent court or statutory tribunal (as appreciated) to obtain an order for possession”. 38. Similarly, In the Case of Ripples Limited vs Kamau Mucuha Nairobi HCCC 4522 of 1992, it was held that; “The landlord should only take one course against the defaulting tenant i.e., either to distrain for rent or institute an action for forfeiture of the lease/tenancy and repossession. Here the defendant/response took both reliefs to his benefit. It cannot be. The law does not permit it and this court cannot allow it.”. Based on the cited case law and reasoning above i concur with the Appellant's contention that the learned trial magistrate's contention that it was not clothed with jurisdiction to entertain the application dated 17.5.2024 was erroneous. The cross appeal succeeds on this ground. **Whether the appellants are entitled to the reliefs sought:** 39.Having found that the learned Trial Magistrate acted in excess of jurisdiction by determining the main suit at an interlocutory stage without express consent of the parties and declining to entertain the application dated 17.5.2024 yet clothed with jurisdiction to do so denied the appellants their right to be heard on merit thereby occasioning an injustice to them. The appeals are merited having raised substantial issues for determination at the main suit and allowed. 40. Costs follow events pursuant to section 27 of the Civil Procedure Act,2010. The Appellants having succeeded in the appeal and cross appeal shall bear own costs of the appeals having been guided by the case of **Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others SC. Petition No. 4 of 2012: [2014] eklr** that restated the principle that costs follow events but awarded at discretion of the court. **Final orders:** 41. Considering the reasoning above I find the Appeal and cross appeal meritorious and make the final orders as follows: a. The Appeal and Cross appeal are allowed. b. The ruling of the trial court dated 23.1.2024 and 27.8.2024 are set aside on their entirety. c. The matter is remitted back to the magistrates’ court for hearing and determination denovo on merits before a magistrate clothed with jurisdiction to entertain the matter other than Hon L M. Njora (Spm). d.Each party to bear own costs of the Appeal and Cross appeal. Ordered accordingly. **DATED, SIGNED AND DELIVERED AT VOI THIS 28TH DAY OF JULY, 2026.** **J. A. ORWA** **JUDGE** **IN THE PRESENCE OF:** **MR. OLOO FOR THE APPELLANT(DAWIT)** **MR. MWANGI FOR THE APPELLANT(JEKAN)** **MR. LETISIA -COURT ASSISTANT**