https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4559

Nadiano Car Hire Co Ltd v Carlton Investment Ltd & another (Environment and Planning Appeal E003 of 2025) [2026] KEELC 4559 (KLR) (15 July 2026) (Ruling) Neutral citation: [2026] KEELC 4559 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Planning Appeal E003 of 2025 MN Kullow, J July 15, 2026 Between nadiano Car Hire Co ltd Appellant and Carlton Investment Ltd 1st Respondent Henry K Nzyuko T/A Interfield Auctioneers 2nd Respondent Ruling 1.There are two applications before this court both filed by the Appellant. The first application is a notice of motion dated 11th September 2025 seeking for the following orders:i.Spentii.That pending the hearing and determination of this Application, this Honourable Court be pleased to issue an interim order restraining the Auctioneers, their agents, or assignees from auctioning, disposing, selling, or in any manner alienating the attached goods and tools of trade belonging to the Appellant/Tenant.iii.That the management of Carlton be summoned to appear before this Honorable court to explain why they disobeyed this Honorable court’s order which resulted in the Appellant being unlawfully evicted thereby causing untold suffering to his clients, suppliers, his staff as well as himselfiv.That this honorable court be pleased to compel carlton investment to halt any ongoing activity on the said suit property pending the hearing and determination of this suitv.That the Honourable Court be pleased to order the immediate return of all attached movable property taken from the suit premises belonging to the Appellant/Tenant by the Auctioneer acting under the instructions of the Respondent.vi.That the Honorable Court do issue orders compelling the Auctioneer and/or the Respondent to return the Appellant's tools of trade and operational equipment.vii.That the auctioneer be summoned to appear before this Honorable Court to answer for 1. Acting in contempt of court 2. why he disposed off the Appellant items without having followed the due process and without authorization or permission of this Honorable Court 3. Why he caused harassment to the Appellant’s clients being assisted by more than 80 plus goons and a group of 5 police officersviii.That this Honorable court be pleased to order that the auctioneer be held in contempt of court and that a warrant of arrest be issued against him for going against the Orders issuedix.That the Honorable Court be pleased to order that the claimant compensate the Respondent for the damage that resulted from the illegal eviction to a tune of Kshs.45,000,000 being compensation for damaged gym equipment and other apparatus, loss of time, loss of customers, staff compensation, clients and staffs’ missing items. Embarrassment, harassment of both clients and staff and trauma suffered.x.That in the interim, this Honorable Court do issue a finding that the eviction and attachment of property was unlawful, irregular and void ab initio.xi.That the Honorable court be pleased to stop the ongoing renovation of the premises pending the hearing and determination of this matter.xii.That court be pleased to grant any suitable order. 2.The notice of motion application dated 11th September 2025 was premised on grounds that the 1st Respondent had carried out unlawful evictions before expiry of 60 days grace period which had been given by the tribunal causing the 2nd Respondent to proclaim the Appellants goods without issuing any proclamation notice neither any court order authorizing the said eviction. That the Appellants tools of trade having been taken, has paralyzed the business. hence the application so as not to render the appeal nugatory as it raises triable issues . 3.The 1st Respondent in rebuttal filed a replying affidavit sworn by Vijay Kantaria. He deponed that the tribunal had given orders which had terminated the tenancy and further orders of eviction and that the 1st Respondent based on the said orders had evicted the Appellant. That the Appeallant was well aware of the eviction orders and cannot claim that no orders were served upon them. 4.The 2nd application is a notice of motion application dated 12th December 2025 seeking the following ordersi.That this application be certified urgent and service be dispensed with and heard in the 1st instance;ii.That this Honourable Court be pleased to invoke its residual jurisdiction and reinstate the Application dated 12th November 2025 that was dismissed for non-attendance/want of prosecution.iii.That upon reinstatement, the Application dated 12th November 2025 be heard on merit.iv.That costs of the Application be provided for 5.The application was premised on the grounds as in the supporting affidavit of one Noel Onyango. He deponed that the previous advocate on record had network challenges when the matter was called out and could not address the court causing for the application dated 12th November 2025 to be the dismissed for want of prosecution.That the court should allow the reinstatement as the mistake of counsel should not be attributed to a party 6.As per the court records, the 1st Respondent did not put in a reply to the application of 12th December 2025. Submissions on the Application dated 11th September 2025 Applicant’s Submissions 7.In regards to the 1st application, the Applicant filed submissions dated 15th November 2025. It was submitted that the acts committed by the Respondents were greatly prejudicial to the Appellant herein, as they denied him an opportunity to defend himself as the matter was ongoing before resolving to the acts of auctioning the Appellant’s property and evicting them from the suit property which actions amounted to contempt being that this court had issued orders as against the said eviction and auctioning dated 11th of September relying on the case of Justus Kariuki Mate & Another Vs Martin Nyaga Wambora & another C.A No. 24 of 2014 8.Counsel submitted that the Respondent having been in contempt and gone ahead to evict the Applicant, carried out innovations and leased the property to a new tenant, it only meant that the stay orders were spent and hence, need to seek for compensatory orders against the Landlord, to remedy the loss incurred by the Applicant. 9.On whether the Applicants were entitled to damages, the Applicant submitted that the 1st Respondent had breached the lease agreement which stated that if the landlord sought to end the contract, the tenant was to be notified 6 months prior which was not the case here as no communication was made to the tenant hence the breach entitling them to damages and relied in the case of Visoi Saw Mills Ltd v The Attorney-General [1997] eKLR (Civil Appeal No. 78 Of 1996 The 1st Respondent did not submit on the application Submissions on the Application dated 12th December 2025 10.The Applicant filed submissions dated 17th February 2026 and submitted reiterating the argument that his advocate on record had made an excusable mistake which the court should not hold as against them but allow the application for reinstatement. This argument was backed by the case of Lee G. Muthoga -v- Habib Zurich Finance (K) Ltd & Another, Civil Application No. Nair 236 of 2009 .Counsel further submitted and relied on the provision of section 3A of the Civil Procedure Act to point out the inherent discretion of the court to make such orders to meet the ends of justice. On this ground the Applicants placed reliance on a number of case laws including the case of Patel -v- E.A. Handling Services Ltd (1974) EZ 75 and Tree Shade Motor Ltd -Vs- D.T. Dobie Co. Ltd CA 38 of 1998 and Mania -Vs- Muriuki (1984) KLR 407.Counsel for the Applicant also relied Order 12 Rule 7 of the Civil Procedure Rules 2010,Order 45 of the Civil Procedure Rules, 2010 to anchor his application for review. He submitted that the reason raised for failure to prosecute amounted to sufficient cause which is a factor the court should consider relying on the case of Auto Selection (K) Ltd & 2 Ors vs. John Namasaka Famba (2016) Eklr 11.The Respondents filed submissions dated 15th June 2026.Counsel submitted that in as much as Order 12 Rule 7 Civil Procedure Rules, 2010 gives the court an unfettered discretion to set aside a dismissal the discretion should be exercised judicially and not sympathetically. He further submitted that the Applicant had not satisfied the conditions for review as in order 45 rule 1 being that there was no error apparent on the face of record, no discovery of new evidence and no sufficient cause.That the Applicant indicating his advocates had network challenges hence could not log in court, did not amount to sufficient cause. That this ground should only be permitted where the mistake is excusable and not permittable which in this case he argued was a mistake that counsel should have been able to avoid by ensuring he has a backup on the internet provision in case it fails. More sore he argued there was no evidence on record to proof the same nor any sworn statements making them mere assertations. To buttress their argument on the case of Hezron Obadiah v Alphonse Oladipo & Tubman Otieno [2015] KEHC 7311 (KLR) Analysis and determination 12.I have reviewed both applications and the corresponding responses and submissions and will address the notice of motion dated 12th December 2025 first. 13.In setting aside ex parte Judgment, the Court is called to exercise its discretion. Discretion must however be exercised judiciously. This position was affirmed in the case of Patel v E.A. Cargo Handling Services Limited (supra) where it was stated:“ There are no limits or restrictions on the judge’s discretion except that if he does vary the judgment, he does so on such terms as may be just. The main concern of the court is to do justice to the parties and the court will not impose condition on itself or fetter wide discretion given to it by the rules the principle obviously is that unless and until the court has pronounced judgment upon merits or by consent, it is to have power to revoke the expression of its coercive power where that has obtained only by a failure to follow any rule of procedure.” 14.Justice Nyagaka IUR faced with an application to set aside an order of dismissal on the grounds that counsel experienced internet challenges to log into the virtual platform persuasively observed in the case of Langat v Director of Land Adjudication and Settlement & 3 others; Sabuni & 180 others (Interested Party)(Environment & Land Petition 26 of 2014) [2023] KEELC 21588 (KLR)(17November 2023) (Ruling) as follows;- “ Even where there is failure of the internet or anticipated network failure, the parties are under obligation to inform the Court as soon as practicable that they are in a problem and unable to log into the virtual session. They do this through calling other colleagues who can have stronger internet to log into the court session and hold brief or inform the court otherwise. They cannot sit back and wait for another day to move the court to set aside proceedings. Moreover, the party has to use technology to demonstrate to the Court that indeed they attempted to log into the court session but failed. For instance, they need to demonstrate through internet logs that they indeed tried to log into the session but failed.’ 15.In this case, the counsel on record who tried to log in on the said 26th November 2025 did not swear any affidavit in support of the application to indicate that indeed he tried to log into the virtual court without success. There is no indication as to what link the Applicant’s counsel used in attempting to join the virtual court as to make this court believe that indeed any efforts were made. 16.However, I take judicial notice of the fact that joining virtual proceedings has been a challenge to most litigants and even lawyers and Judges mostly due to internet connectivity. On a benefit of doubt, I am inclined to hold that the non-attendance may not have been deliberate. In the interest of justice and considering that the application herein has been filed timeously, I am inclined to allow the same. 17.Moving on to the application dated 11th September 2025 December 2025 I find that the sole the issue for determination is whether the application is merited. The law governing injunctions is found under Order 40 Rule (1) and (2) of the Civil Procedure Rules as well as section 13(7) (a) of the Environment and Land Court Act.The principles that govern the grant of temporary injunctions were set out in the celebrated case of Giella vs Cassman Brown & Co. Ltd [1973] EA 358 and has been restated by a long line of authorities. These principles are as follows: -a.where he is required to demonstrate that he has a prima facie case with serious triable and arguable issues with a probability of success against the Respondent. The test on prima facie case does not mean establishing a case beyond reasonable doubt;b.He will sufer irreparable harm/injury which cannot be adequately compensated by damages;c.Balance of convenience: In granting an injunction under this condition the court must be satisfied that the hardship or inconvenience which is likely to be caused to the Applicant by declining the injunction will be greater than that which is likely to be caused to the Respondent. 18.However, before delving into the merits of the said elements, it is important to first determine whether the said orders as sought are tenable or whether the same have been overtaken by events. 19.The Applicant sought to have the 2nd Respondent stopped from dealing with the goods and tools of trade that had been taken from the suit property which goods have already been sold to a third party as averred in the supporting affidavit in the application. The Applicant also sought to have the 1st Respondent restrained from dealing with the suit property pending hearing and determination of the matter of which the Applicant has deponed in his further affidavit sworn on the 23rd May 2026 that the 1st Respondent has completed the renovation works and let the property to a new tenant. 20.It is therefore not in dispute that the prayer for temporary injunction seeking to restrain the 1st Respondents from interfering with suit property has been overtaken by events so is the prayer to restrain the 2nd Respondents from selling the goods and tools of trade taken from the suit property. I therefore find no reason to delve into the merits of the 3 elements to be proved to warrant the grant of orders of temporary injunction in the nature sought. 21.Consequently, it is the finding of this court that the prayer having been overtaken by events. The orders sought of interim injunction pending the hearing and determination of the suit are not tenable and the said prayers fail. 22.On the issue of summoning the auctioneers to answer to contempt of court, I hold that the same has been addressed by the 1st application where the Applicant has sought to reinstate the application of 12th November 2025 that is a contempt application. This court having allowed the same, I hold that the issues arising of contempt will be addressed on merit in the said application 23.The Applicant seeks damages against the Respondents. The issue of damages can only be determined upon the full hearing of the suit. At this interlocutory stage, I cannot make definitive findings on damages Final dispositionConsequently, in light of the above I make the following ordersi.The Notice of Motion application dated 12th December 2025 is hereby allowed and the application dated 11th November 2025 is reinstated for hearing and determination.ii.The Notice of Motion application dated 11th September 2025 is hereby dismissed for lack of meritiii.Costs of both applications shall abide the outcome of the appeal.It is so ordered. DATED, SIGNED AND DELIVERED VIA E-MAIL AT NAIROBI ON THIS 15TH OF JULY 2026.MOHAMMED N. KULLOWJUDGE