https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7748

Karango & another v Park Towers Limited (Civil Appeal E1052 of 2023) [2026] KEHC 7748 (KLR) (Civ) (4 June 2026) (Judgment) Neutral citation: [2026] KEHC 7748 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E1052 of 2023 BW Murunga, J June 4, 2026 Between Evans Karango 1st Appellant Marion Icharia 2nd Appellant and Park Towers Limited Respondent (Being an Appeal from the interlocutory Ruling and Order of the Chief Magistrate’s Court at Milimani delivered by Hon. Cosmas Maundu (CM) on 18th May, 2023 in Milimani CMCC No. E3125 of 2022) Judgment Introduction & Background 1.This appeal arises from the interlocutory Ruling and Order delivered by the learned Chief Magistrate, Hon. Cosmas Maundu, on 18th May, 2023, in Milimani Chief Magistrate’s Commercial Court (CMCC) Case No. E3125 of 2022. 2.The dispute traces its origins to a commercial landlord-tenant arrangement concerning premises situated on Land Reference Number 209/8408 (and subsequently referenced in pleadings as L.R. No. 209/8409) near the Machakos County Bus Station in Nairobi. 3.The Appellants had been permitted by the Respondent’s former director, the late Francis Ngatia, to construct and operate commercial facilities, specifically the Travellers Hotel and a public sanitation facility (toilet), subject to a daily rent of Kshs. 2,500. Following the demise of the said director in November 2020, relations between the parties broke down, culminating in multiple disputes before the Business Premises Rent Tribunal (BPRT Case No. 156 of 2021) and subsequent miscellaneous recovery proceedings in the subordinate court. 4.Driven by unresolved claims of outstanding rent arrears totaling Kshs. 1,320,000, the Respondent filed the substantive lower court suit, CMCC No. E3125 of 2022, alongside an interlocutory Notice of Motion dated 8th June, 2022. 5.By the said motion, the Respondent sought several interim reliefs, key among them being orders to compel the Appellants to deposit the disputed sum into court and to vacate the suit property pending the trial. 6.In its impugned determination, the trial court allowed the motion as prayed, ordering the eviction of the Appellants and the deposit of the claim amount. Aggrieved by this decision, the Appellants preferred the present appeal via a Memorandum of Appeal dated 10th October, 2023, asserting that the lower court had irregularly and prematurely determined the main suit at an interlocutory stage. The Appellants’ Submissions 7.In support of the appeal, the Appellants, through the firm of Owang & Associates Advocates, filed written submissions submitting that the learned trial magistrate committed a grave error of law and fact by granting final, substantive reliefs within the context of an interlocutory application. 8.Counsel for the Appellants contended that by ordering the eviction of the Appellants and directing a forceful handover of the premises via auctioneers before a plenary trial, the subordinate court effectively liquidated the substratum of the main suit. It was argued that such an expansive exercise of judicial discretion condemned the Appellants unheard, summarily shutting them out from introducing oral evidence to corroborate their defenses, verify the exact amount of rent arrears, and establish their substantial investments in developing the suit property. 9.The Appellants further submitted that an order of eviction is an extraordinary, permanent remedy that can only properly issue after a meticulous examination of the merits during a full trial. To reinforce this position, the Appellants relied on the High Court decisions in Norah Ndunge Henry & Another v Abednego Mutisya & Another [2022] eKLR and Tatecoh Housing & Co-op Sacco Ltd v Qwetu Sacco Ltd [2021] eKLR, where it was held that eviction orders are serious interventions that should not be granted lightly on interlocutory applications without adherence to statutory prerequisites. 10.Additionally, the Appellants maintained that the trial court failed to account for their demonstrable good faith, as they had already partially liquidated the disputed arrears by paying a sum of Kshs. 675,000 during the pendency of the litigation. The Respondent’s Submissions 11.Opposing the appeal, the Respondent, through the firm of Oyatta & Associates Advocates, raised a fundamental threshold objection regarding the competence and utility of these proceedings. The Respondent submitted that this appeal has been entirely overtaken by events and is now completely moot. 12.Counsel disclosed that on 27th October, 2025, during a scheduled mention before Hon. Kiboss in the subordinate court, the underlying substantive suit (CMCC No. E3125 of 2022) was formally marked as 'settled and closed' by the mutual consent of both parties. The Respondent explained that due to the Appellants’ persistent non-compliance with interim rental obligations and their eventual exit from the premises, the Respondent elected to forego further pursuit of the rent arrears in order to bring the litigation to a permanent end, meaning no live controversy remains. 13.Without prejudice to the mootness argument, the Respondent further submitted that the trial magistrate acted within sound judicial discretion. It was argued that the mandatory interlocutory injunction was fully justified under the exceptional circumstances of the case, in strict alignment with the principles established in Giella v Cassman Brown & Co. Ltd [1973] EA 358 and Locabail International Finance Ltd v Agroexport & Others [1986] 1 All ER 901. 14.The Respondent contended that the Appellants had expressly admitted their tenant status and the existence of rent arrears, yet continued to operate the public toilet and derive commercial profit while completely withholding rent. 15.In light of such flagrant and contemptuous conduct, the Respondent maintained that the interim orders were necessary to prevent a continuous commercial injury and protect the landlord's property rights from ongoing exploitation. 16.Issues For Determination 17.Having reviewed the Memorandum of Appeal, the rival written submissions, the lower court record, and the relevant statutory and case law frameworks, this Court identifies the following two core issues for determination:a.Whether this appeal has been rendered moot, academic, and non-justiciable by the subsequent settlement and closure of the primary suit in the subordinate court by consent of the parties.b.Whether the learned trial magistrate erred in law and fact by granting mandatory interlocutory orders of eviction and monetary deposit prior to a full trial on the merits of the case. Court’s Analysis And Findings 18.In analyzing the first issue, the Court must confront the foundational doctrine of justiciability. It is a rudimentary principle of our judicial system that courts are established to resolve live, practical controversies between adversarial parties, and not to engage in speculative, academic exercises. When a defendant or respondent raises the issue of mootness, the court is duty-bound to examine whether a determination of the appellate grounds would yield any actual, tangible utility or whether it would merely amount to an empty pronouncement. A dispute is traditionally categorized as moot when subsequent events or the conduct of the parties dissolve the legal friction, thereby depriving the court’s prospective decree of any real-world enforcement capacity. 19.This position is eloquently articulated in the landmark decision of the Court of Appeal in Okiya Omtatah Okoiti & 2 Others v Attorney General & 4 Others [2020] eKLR, which cited with approval the principles in Daniel Kaminja and 3 Others v County Government of Nairobi [2019] eKLR. The Court of Appeal noted 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.”And that,“No court of law will knowingly act in vain. The general attitude of courts of law is that they are loathe in making pronouncements on academic or hypothetical issues as it does not serve any useful purpose. 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.” 20.Also, In National Assembly of Kenya & another vs. Institute for Social Accountability & 6 others [2017] eKLR, the Court of Appeal characterized the doctrine of ‘mootness’ as complex; and that there is no sharp distinction between moot and live controversies. The court held that:“… 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. In the application of the doctrine to the wide ranging and varying factual situations, 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 the public interest.” 21.Therefore, a matter becomes moot when further legal proceedings have no effect, or when intervening circumstances place the subject matter completely beyond the reach of the law, stripping it of practical significance. The jurisprudence dictates that no court of law should knowingly act in vain or expend scarce public judicial time rendering judgments that make an empty sound and possess no utilitarian value to either litigant. 22.Turning to the record before this Court, the Respondent has presented uncontroverted information that on 27th October, 2025, the parties appeared before Hon. Kiboss in the trial court, and by mutual consent, the substantive suit (CMCC No. E3125 of 2022) was marked as settled and closed. The Appellants have not filed any affidavit or counter-submissions to deny this factual occurrence. 23.Ordinarily, where a primary suit is terminated by consent, all interlocutory orders anchored upon that suit are automatically spent, extinguished, or subsumed by the final disposal. Logically, if the main tree is felled, the branches cannot continue to stand independently in isolation. 24.However, the inquiry into mootness does not terminate blindly upon a mere showing of a procedural settlement. The Court of Appeal has frequently recognized that an appeal targeting an interlocutory infraction may survive a mootness challenge if it raises fundamental constitutional queries, matters of compelling public interest, or issues that carry severe collateral consequences affecting the wider administration of justice. As observed in Independent Electoral and Boundaries Commission (IEBC) v National Super Alliance (NASA) & Others [2017] eKLR, courts retain residual discretion to hear an otherwise academic appeal if it is imperative to settle a recurring, unsettled point of law for future guidance. We must therefore carefully weigh whether the procedural propriety of granting eviction orders at an interim stage presents such an exception. 25.This brings us to the second issue, which centers on the scope of judicial power when dealing with interim applications that mirror the final prayers sought in a plaint. The Appellants’ central grievance is that the trial magistrate delivered a final judgment disguised as an interlocutory order. 26.As a general principle, courts are routinely discouraged from granting substantive, definitive reliefs at an interim stage because doing so runs the risk of prejudging the suit and dismantling the substratum of the litigation before a proper evaluation of evidence can occur. An interlocutory injunction is historically designed as a shield to preserve the status quo, not as a sword to summarily enforce final liability. 27.Nevertheless, the law does not entirely paralyze the hands of a trial court where urgent intervention is necessary. Under exceptional circumstances, a court may grant a mandatory injunction at an interlocutory stage, even if such an order consequentially alters the status quo or requires a party to vacate a premises. In Locabail International Finance Ltd v Agroexport & Others [1986] 1 All ER 901, where the court held:“A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances and then only in clear cases either where the court thought that the matter ought to be decided at once or where the injunction was directed at a simple and summary act which could easily be remedied or where the defendant had attempted to steal a match on the plaintiff. Moreover, before granting a mandatory injunction the court had to feel a high sense of assurance that at the trial it would appear that the injunction had rightly been granted, that being a different and higher standard than was required for a prohibitory injunction.” 28.The case was adopted by the Court of Appeal in Kenya Breweries Limited & Another v Washington O. Okeyo [2002] eKLR, it was established that a mandatory interlocutory injunction can issue if the case is exceptionally clear, where the court feels a high degree of assurance that at the trial it will appear that the injunction was rightly granted, or where a party has attempted to steal a march on their opponent. 29.In the lower court, the learned magistrate was called upon to apply the timeless tripartite criteria set out in Giella v Cassman Brown & Co. Ltd [1973] EA 358. The record reveals that the Appellants did not dispute their tenant status, nor did they deny that substantial rent arrears had accrued. Instead, the Appellants admitted their indebtedness while pleading a partial liquidation of the debt. The unique dilemma before the trial court was that the Appellants were actively exploiting a public utility facility, generating daily commercial income, while simultaneously failing to pay the agreed daily rent to the landlord. In such a scenario, a text-book application of the status quo rule would force a property owner to endure ongoing economic hemorrhage without any viable security for future recovery. 30.Despite these compelling commercial realities, the trial court was still bound to navigate the strict statutory guardrails governing evictions in Kenya. As observed in Norah Ndunge Henry & Another v Abednego Mutisya & Another [2022] eKLR, an order for eviction carries profound socio-economic and legal ramifications, meaning the applicant must strictly adhere to the mandatory procedures outlined under Sections 152A through 152H of the Land Act. An interlocutory application cannot be used as a shortcut to bypass these statutory notice requirements. By granting a wholesale order for forceful eviction via auctioneers under police supervision at an interim stage without verifying strict compliance with the Land Act, a court risks committing a procedural misdirection that compromises the right to a fair trial. 31.When I synthesize these two streams of legal thought, a profound tension emerges. On one hand, the trial magistrate’s interlocutory order bordered on a premature determination of the suit and bypassed stringent statutory eviction frameworks, which would normally justify appellate intervention to set it aside. On the other hand, the subsequent conduct of the parties in voluntarily returning to the subordinate court on 27th October, 2025, and entering a formal, lawful consent to mark the entire substantive suit as settled and closed, fundamentally transforms the legal landscape. The Appellants willingly chose to terminate the mother suit without reserving any rights or extracting a conditional stay regarding this pending appeal. 32.Consequently, the legal reality is that there is no longer a living, breathing commercial dispute between Evans Karango, Marion Icharia, and Park Towers Limited in CMCC No. E3125 of 2022. Because the substantive lower court suit has been legally interred by the mutual consent of the parties, any order this Court might issue today regarding the propriety of the interlocutory eviction would be incapable of execution, completely devoid of legal substratum, and incapable of breathing life back into a dead file. 33.Equity and the law dictate that a court must not beat a dead horse or issue academic decrees in vain. The settlement of the main suit has effectively cured, spent, and neutralized the controversy, rendering this appeal wholly moot. Disposition 34.Ultimately, while the Appellants raised legitimate concerns regarding the summary and expansive nature of the interlocutory orders issued by the trial court, their subsequent voluntary settlement of the main suit has completely deprived this appeal of any practical justiciable utility. A court cannot alter or set aside an interlocutory order of a suit that has already been concluded and closed by a lawful consent of the parties. Accordingly, this Court is compelled to find that the appeal is incompetent and overtaken by events. 35.In the upshot, the Court issues the following final orders:a.The Appellant’s Appeal dated 10th October, 2023 is hereby dismissed for being moot, academic, and overtaken by events.b.Regarding costs, noting that the underlying litigation was resolved by mutual consent and that this appeal was rendered academic by the joint conduct of the parties, each party shall bear their own costs of this appeal. DATED AND DELIVERED AT NAIROBI THIS 4TH DAY OF JUNE 2026.BENARD WAFULA MURUNGAJUDGE OF THE HIGH COURTDelivered on virtual platform in the presence of............................................ for the Appellant............................................. for the RespondentKevin Babu - Court Assistant