https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12793

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **COMMERCIAL AND TAX DIVISION** **MISC. APPLICATION NO. E1208 OF 2025** **BETWEEN** **SHASHIKANT JAGJIVAN BHAGA ……………………..……………….APPLICANT** **AND** **GABRIEL GEORGE GACHERU........………………………………….RESPONDENT** **RULING** **Introduction and Background** 1. What is before the court for determination is the Applicant’s application brought by way of the Notice of Motion dated 1st December 2025 made under A**rticle 50 and 159 (2) (b) and (d)** of the ***Constitution***, **sections 1A, 1B, 3, 18, 40, and 63(e)** of the ***Civil Procedure Act(Chapter 21 of the Laws of Kenya)*** and **Order 51 Rule 1** of the ***Civil Procedure Rules***, where he seeks the following orders: 2. *Spent\** 3. *Spent\** 4. *THAT an order do issue calling for the file in Milimani RTC Case No. 3 of 2022 - George Gabriel Gacheru vs Shashikant Jagjivan Bhaga to be brought to the High Court for the purpose of the High Court hearing and disposing of the matter itself; or for the purpose of transferring the file to any other magistrate at Milimani Commercial Courts other than Hon. Betty Cheloti for hearing and determination.* 5. *THAT an order do issue that the Interlocutory Judgment entered on 24th July, 2024 in Milimani RTC No. 3 of 2022 - George Gabriel Gacheru vs Shashikant Jagjivan Bhaga was set aside by the ruling and orders of the magistrate Court issued on 7th February, 2025.* 6. *THAT an order that the Decree dated 3rd October 2024 and any other consequential order, decree, warrants of attachment of movable property or warrants of sale of movable property issued towards or in execution of the interlocutory judgment entered on 24th July 2024 in Milimani RTC No. 3 of 2022 - George Gabriel Gacheru vs Shashikant Jagjivan Bhaga be and are hereby declared illegal, null and void and are thereby set aside forthwith in their entirety.* 7. *THAT an order do issue that the Orders issued on 24th October 2025 in Milimani RTC No. 3 of 2022 - George Gabriel Gacheru vs Shashikant Jagjivan Bhaga be and are hereby set aside in their entirety.* 8. *THAT an Order that the sums which were due and owing to the Respondent against the Applicant arising out of the Business Premises Rent Tribunal’s ruling dated 4th August 2017 in BPRT Case No. 239 of 2015 – George Gabriel Gacheru vs Shashikant Jagjivan Bhaga and the Decree of this Honourable court dated 12th January, 2024 has been settled in full.* 9. *THAT the costs of this Application together with any costs due to Kamaindo Investment Auctioneers shall be borne by the Respondent for initiating an irregular execution process.* 10. *THAT the court be pleased to issue any other or further orders it may deem fit and just in the circumstances.* 11. This application is supported by the grounds on its face and affidavits of Applicant sworn on 1st December 2025 and 15th January 2026. It is opposed by the Respondent through his replying affidavit sworn on 15th December 2025. The application was canvassed by way of written submissions which I have considered together with the pleadings and I will be making relevant references to them in my analysis and determination below. **Analysis and determination** 1. From the Applicant’s submissions, the court is being called upon to determine the following issues: 2. *Whether a temporary injunction should be granted restraining the Respondent, his agents, or any auctioneers from attaching, selling, or otherwise dealing with the Applicant’s property.* 3. *Whether the High Court has supervisory jurisdiction to call for the Milimani RTC Case No. 3 of 2022 file or to transfer the matter to another magistrate.* 4. *Whether the interlocutory judgment entered on 24th July 2024 in Milimani RTC Case No. 3 of 2022 was lawfully issued or has been validly set aside and whether the related decree, warrants of attachment and warrants of sale are therefore illegal, null, and void.* 5. *Whether the orders issued on 24th October 2025 in Milimani RTC Case No. 3 of 2022 should be set aside in their entirety.* 6. *Whether the sums due to the Respondent arising from the Tribunal’s ruling in BPRT Case No. 239 of 2015 and the decree of 12th January 2024 have been fully settled.* 7. *Whether the costs of the application, including any costs incurred by the auctioneers, should be borne by the Respondent.* **Whether an injunction should be granted** 1. Whereas the Applicant has submitted extensively on this issue, I find that this prayer is spent as the court issued the said injunction on 2nd December 2025. Because the court granted the injunction order “…*pending the hearing and determination of this Application inter partes”* it served its purpose of holding the status quo while the parties filed their responses and written submissions. 1. If the court agrees with the Applicant's positions on the other prayers such as setting aside the execution, decrees and underlying orders in their entirety or calling up the file and/or transferring the matter, the threat of execution is permanently extinguished. Once the decree being executed is declared null and void, an interlocutory injunction to stop that execution becomes moot because there is no longer a decree left to execute. 2. Therefore, while the prayer was necessary when filing the application to secure immediate protection and as the court determines the application on its merits, it follows that the prayer for an injunction has fulfilled its interlocutory function and yields to the final substantive orders. **Whether the High Court has supervisory jurisdiction to call for the file or transfer it** 1. The Applicant submits that under **Article 165(6) and (7)** of the ***Constitution***, this Court holds supervisory powers over subordinate courts to prevent grave miscarriages of justice and flagrant abuse of legal principles. The Applicant contends that executing a void judgment, persisting despite court orders closing the file and jurisdictional flaws present exceptional circumstances calling for the Court’s intervention to maintain judicial integrity 1. The said **Article 165(6) &(7)** of the ***Constitution*** provides as follows: *(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.* *(7) For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration.* 1. Recently, the Court of Appeal in **Muzoka & another (Practicing as Omulama E. M. & Company Advocates) v Kirima & 4 others [2025] KECA 1293 (KLR)** explained the application of the aforementioned provisions as follows: *“….Article 165(6) and (7) endows the High Court and, by extension, the courts of equal status, with supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court. Essentially, the provisions empower superior courts to invoke their supervisory jurisdiction to ensure that subordinate courts remain within the bounds of their jurisdiction as by law prescribed and adhere to the fundamental principles of law. In cases where the subordinate court has assumed a jurisdiction which it does not have, the High Court and courts of equal status may exercise their supervisory jurisdiction to correct errors that pertain to the court’s jurisdiction.* 1. It therefore follows that this court has supervisory jurisdiction to review the decision made by a subordinate court if the said decision was made outside the bounds of its jurisdiction. I therefore find that this court has jurisdiction to entertain the application before it. 2. Going through the pleadings and submissions, it is evident that the subordinate court’s ruling of 7th February 2025 in **Milimani RTC No. 3 of 2022** explicitly set aside the default judgment of 24th July 2024 and that this was done "as a matter of right" due to lack of service. This finding by the subordinate is final and has not been appealed or overturned and I am in agreement with the Applicant that a judgment that is set aside is a nullity and every proceeding founded on it, including the decree of 3rd October 2024 and the subsequent warrants of attachment, automatically collapses. 3. The Applicant rightly cites the decision of the Privy Council in the case of **Macfoy vs. United Africa Co. Ltd [1961] 3 All E.R. 1169** at page 1172 (1) where it was held that: *If an act is void, then it is in law a nullity. It is not only bad, but incurably* *bad. There is no need for an order of the Court to set it aside. It is* *automatically null and void without more ado, though it is sometimes convenient to have the Court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”* 1. The Respondent cannot execute a judgment that no longer exists and the subordinate court's subsequent order on 24th October 2025, which allowed execution to proceed, directly contradicts its own earlier ruling that set the judgment aside and its order of 26th May 2025 marking the matter as settled. I find this to be a case of grave dereliction of duty and flagrant abuse of process that warrants this Court's supervisory intervention and I also find that the interlocutory judgment of 24th July 2024 and related decrees and/or warrants are illegal, null and void. **Settlement of the BPRT claim** 1. The Applicant submits that the magistrate’s court was initially moved only to enforce the Business Premises Rent Tribunal’s (BPRT) case No. 239 of 2015 on the award of costs amounting to Kshs. 34,300.00. That the Respondent was required to list the reference before the Tribunal for assessment of damages, which he failed to do and instead, he improperly filed an application dated 13th March 2024 in the magistrate’s court claiming Kshs. 4,800,000.00 in damages. He submits that the magistrate's court lacked jurisdiction to assess or award damages without a prior BPRT determination and in any case, the resulting default judgment was validly set aside on 7th February 2025, rendering the default judgment, the extracted decree dated 3rd October 2024 and subsequent warrants void *ab initio*. 2. In response, the Respondent deponed that the case originated from the BPRT after the Applicant as the Landlord locked the Respondent who was the Tenant out of his business premises. The BPRT ruled in the Respondent's favor, ordering the Applicant to pay costs of Kshs. 34,300.00 and that the BPRT also noted that the Applicant had been colluding with unknown persons at the Tribunal to obstruct justice, which necessitated the Respondent to construct a skeleton file for the case. 3. The BPRT order was adopted by the Magistrate's Court on 7th December 2023 and the file was transferred there for execution and that contrary to the Applicant's claim, the Respondent states that the reference for the assessment of damages was heard and concluded in the Magistrate's Court in **RTC 3 of 2022** and the assessment was based on a further affidavit he swore on 21st March 2024, and the court ruled in his favor. The Respondent avers that the Applicant is acting in bad faith and he claims the Applicant's application to mark the matter as settled was filed without serving him and the resulting ruling was irregularly not uploaded or served on him.The Respondent states the Applicant has a history of evading service and absconding from court sessions and he alleges that the Applicant is currently planning to leave the country and is selling his assets to avoid paying the decretal sum of Kshs. 5,158,578.86. 4. Going through the pleadings and submissions, the Applicant has provided evidence, which is not disputed by the Respondent, that he fully paid the original decretal sum of Kshs. 34,300.00 along with costs and auctioneer fees totaling Kshs. 171,737.93. The Respondent himself admitted in his own supporting affidavit sworn on 13th March 2024 before the Magistrate’s court that the costs awarded by the BPRT had been paid. I find that this admission is fatal to the Respondent's claim that any amount is still outstanding and the magistrate’s court's own order of 26th May 2025 confirms that the matter arising from the BPRT’s ruling had been fully settled and the file was closed. 5. I hold that the Magistrate's Court's jurisdiction was strictly limited to adopting and enforcing the BPRT's award of Kshs. 34,300.00 and it had no jurisdiction to entertain a completely new claim for Kshs. 4,800,000.00 in damages. BPRT's order of 4th August 2017 required the Respondent to list the main reference for the assessment of damages before the BPRT. The Respondent failed to do this and instead attempted to claim these damages before the Magistrate's Court through a further affidavit which was an unorthodox and jurisdictionally flawed approach. 1. This fortifies the court’s supervisory intervention as the magistrate’s court has assumed jurisdiction it did not have by entertaining and awarding damages without a BPRT decision, it issued contradictory orders by setting aside a judgment but later allowing execution on it and also marking a matter settled but later reviving it and that it failed to adhere to fundamental principles of law by allowing execution on a void judgment. 2. In the end, I find that the Applicant has successfully demonstrated that the execution process is based on a judgment that has been legally set aside and is therefore a nullity. The original claim has been fully paid and the matter was formally closed by the magistrate’s court but the subordinate court acted without jurisdiction by entertaining the new claim for damages. The magistrate court's contradictory orders have created a situation where the Respondent is attempting to enforce a decree that has no legal foundation, threatening the Applicant with irreparable loss. **Conclusion and Disposition** 1. I think I have said enough to find that the Applicant’s application dated 1st December 2025 has merit and is allowed as follows: 2. **An order is issued calling for the file in Milimani RTC Case No. 3 of 2022 – *George Gabriel Gacheru vs Shashikant Jagjivan Bhaga* to be brought to this Court for the purpose of the Court hearing and disposing of the matter itself; OR for the purpose of transferring the file to any other magistrate at the Magistrate’s Court in Milimani other than Hon. Betty Cheloti for hearing and determination.** 3. **An order is issued that the Interlocutory Judgment entered on 24th July 2024 in Milimani RTC No. 3 of 2022 – *George Gabriel Gacheru vs Shashikant Jagjivan Bhaga* was set aside by the ruling and orders of the Magistrate Court issued on 7th February 2025.** 4. **An order is issued that the Decree dated 3rd October 2024 and any other consequential order, decree, warrants of attachment of movable property or warrants of sale of movable property issued towards or in execution of the interlocutory judgment entered on 24th July 2024 in Milimani RTC No. 3 of 2022 – *George Gabriel Gacheru vs Shashikant Jagjivan Bhaga* be and are hereby declared illegal, null and void and are thereby set aside forthwith in their entirety.** 5. **An order is issued that the Orders issued on 24th October 2025 in Milimani RTC No. 3 of 2022 – *George Gabriel Gacheru vs Shashikant Jagjivan Bhaga* be and are hereby set aside in their** **entirety.** 1. **An Order is issued that the sums which were due and owing to the Respondent against the Applicant arising out of the Business Premises Rent Tribunal's ruling dated 4th August 2017 in BPRT Case No. 239 of 2015 – *George Gabriel Gacheru vs Shashikant Jagjivan Bhaga* and the Decree of this Court dated 12th January 2024 has been settled in full.** 2. **The costs of this application together with any costs due to *Kamaindo Investment Auctioneers* shall be borne by the Respondent for initiating an irregular execution process** **DATED SIGNED and DELIVERED virtually this 7th DAY OF AUGUST 2026** **............................................................................** **J.W.W. MONGARE** **JUDGE** **IN THE PRESENCE OF** 1. Ms. Nyakoa holding brief for Mr. Wandati for the Applicant. 2. N/A for the Respondents 3. Amos- Court Assistant