Mitugo v Safaricom Ltd & another

c) OCS Soweto Police Statement to provide security and ensure compliance with the orders. 2. The grounds are captured on the face of the application and in the supporting affidavit of Augustine Mwiti Mitago sworn on 14th April 2026. The applicant deposes that he is the beneficial owner of the suit property, which he has occupied for ten years since he purchased the same and executed the transfer forms now pending registration as per annexures marked AMM 1 (a) & 1 (b); otherwise, the certificate of lease remains in the name of the 2 nd Defendant. What he has attached is annexure marked AMM (2). 3. The applicant deposes that initially he entered into possession of the land as a tenant where he established a hospital offering both inpatient and outpatient medical services, which hospital is fully operating and serving members of the public within Nasra Estate along Kangundo Road and its surrounding areas. 4. He has attached a copy of the registration certificate as annexure marked AMM (3). MILIMANI LC E140 OF 2026 2

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5. The plaintiff/applicant deposes that there exists a portion of the suit property, which has a Telecommunication mast erected, installed and operated by the 1st defendant, pursuant to an arrangement entered into between the 1 st defendant and the previous registered owner of the suit property what he was not a party. He has attached the photo and a copy of the lease as annexures marked AMM (4) & (5) respectively. 6. The applicant deposes that the suit property was subsequently transferred to the 2 nd defendant, who thereafter entered into a written agreement for sale with him to purchase the entire property at Kshs.36 million, which he duly paid. 7. The applicant deposes that after he bought the estate property, he was entitled to vacant possession of the entire property over any encumbrances, or undisclosed third party interest. 8. The applicant deposes that he has examined all necessary documents to facilitate the transfer of the property into his name and remains now in possession as the purchaser. MILIMANI LC E140 OF 2026 3

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9. The applicant deposes that in 2025 the 2 nd Defendant engaged the 1st Defendant and issued a notice to vacate the land by removing the installations on the land, while it committed to do so by October 2025, in default of which a formal notice dated February 2026 was issued as per the copy marked as AMM (6). 10.The applicant deposes that after acquiring the suit property, he also engaged the 1 st Defendant and issued it with a notice to vacate in March 2026 as per attached copy marked AMM (7), whereby he informed the 1 st Defendant that he had commenced construction works on the suit property, hence the need to remove the installation to facilitate the said development. 11.The applicant deposes that the 1 st Defendant despite the said notice and engagement has failed, neglected and refused to comply while has interfered with this initiated plan for expansion and redevelopment of the hospital, which currently remains temporarily closed, to facilitate. As both renovation and with vertical expansion through construction of additional stairs as per the attached photos marked AMM (8). MILIMANI LC E140 OF 2026 4

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12. The applicant deposes that the continued presence of the 1st defendant's equipment on the land has become a material and substantial obstruction to the use and development of his property, delayed the planned works and exposed him and his patients to suffering loss of daily income from his business, erosion of goodwill, diminished public confidence and has deprived the local community of access to a medical facility which remains temporarily closed, yet it has previously been solving their medical needs. 13.The application is opposed by an affidavit of Alex Kivungo, a principal officer with the 1st Defendant, sworn on 16.7.2026. 14.It is deposed that the applicant seeks to interfere with an existing contractual occupation of the land by the 1 st Defendant arising out of a lease agreement dated 4.10.2016, with the previous owner of the land, giving it the right of occupation, access, installation, operation and maintenance of the Telecommunication infrastructure therein. MILIMANI LC E140 OF 2026 5

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15.The 1st Defendant states that prior to extension of the lease agreement it had undertaken the requisite technical evaluations, site acquisition procedures, engineering assessment and regulatory approval necessary for the establishment and operation of the Telecommunication site. 16.The 1st Defendant deposes that the lease agreement contains an express warranty, by the original lessor, that he possessed full legal capacity and authority to grant the lease and to assure the 1st Defendant of quiet possession of the leased property during the subsistence of the tenancy, which it entered into in good faith, and has expended considerable financial and technical resources to establish a Telecommunication site. 17.The 1st Defendant states that it is evident that by the time the plaintiff acquired his interest in the suit property, the Telecommunication mast had already been erected and had been in continuous operation for several years, which he also acknowledges was established through an arrangement between the 1st Defendant and the previous registered proprietor of the property. MILIMANI LC E140 OF 2026 6

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18.The 1st Defendant states that the plaintiff acquired his interest with full knowledge of the existence of the Telecommunication mast, the continued occupation of the 1st Defendant and the subsisting contractual relationship aforesaid 19.For that reason, it is contended that the plaintiff cannot therefore legitimately allege that the 1 st Defendant's occupation is unlawful from inception; otherwise, he obtained his interest as and when its property was undergoing transition, whereafter the 2nd Defendant assumed ownership, he became the lessor and continued the tenancy relationship upon substantially the same contractual terms as per a lease dated 4.10.2016 attached as annexure marked AK1. 20.The 1st Defendant deposes that the agreement between the plaintiff and the 2nd Defendant was undertaken without its participation; hence, the right lawfully acquired by it under the lease with the 2nd Defendant cannot be defeated, varied as extinguished, on other agreements in which it was not privy. MILIMANI LC E140 OF 2026 7

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21.The 1st Defendant deposes that it has been in open, peaceful, uninterrupted and lawful possession of the leased portion and has continued to perform its obligation under the lease agreement to date. 22.The 1st Defendant therefore denies the alleged trespass, given that annexure marked AMM 1(a) & 1(b) clause 7 & 7.1 stipulates that the property was sold to the plaintiff subject to all subsisting easements, quasi-easements, and rights of way, if any. 23.Therefore, the 1st Defendant deposes that the applicant expressly accepted to buy the property subject to the existing interests and cannot seek to avoid or defend rights that were subsisting at the time of the sale. 24.The 1st Defendant denies ever receiving notice to vacate, or any evidence of service, receipt or acknowledgement, so the same is missing, more so in the manner expressly provided in the existing lease agreement. 25.The 1st Defendant deposes that neither the plaintiff nor any other party could unilaterally vary, terminate and/or otherwise interfere with its existing contracted rights and MILIMANI LC E140 OF 2026 8

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obligations by making communication in its absence or outside the contractual frameworks in existence. 26.The 1st Defendant deposes that, without prejudice to the foregoing, it has at a material time remained willing to engage the plaintiff with or view achieving an amicable resolution; otherwise, the intentions of the plaintiff to re develop the land cannot extinguish or override the existing contractual rights over the leased portion or justify grant of the reliefs sought. 27.The 1st Defendant denies it was the cause of the delay of such attempts of re-development work, as alleged or at all by the plaintiff on his land. 28.The 1st Defendant deposes that the Telecommunication mast is part of its national Telecommunications infrastructure which is an integral component of its licenced communication network serving residents, businesses, schools, hospitals, Government institutions and members of the public within the surrounding locality, by virtue of licenses granted to it as a regulated public utility under the Kenya Information and Communication Authority and other statutory agencies. MILIMANI LC E140 OF 2026 9

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29.The 1st Defendant deposes that the relocation of the Telecommunication site is not an immediate or administrative exercise, but a highly technical, specialised and heavily regulated undertaking involving multiple engineering, operational and statutory processes, after there has been identification of a suitable alternative location capable of maintaining existing network coverage, service quality, signal strength and operational continuity. 30.The 1st Defendant deposes that the proposed relocation site must undergo comprehensive radio frequency planning and provide equivalent network coverage without degrading service quality or adversely affecting neighbouring Telecommunication sites, and that further technical assessments have been undertaken to determine structural suitability, land-bearing capacity, and interference with neighbouring Telecommunication equipment, power availability, fibre accessibility for maintenance and connectivity, overall network organisation. MILIMANI LC E140 OF 2026 10

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31.The 1st Defendant deposes that, whereas in the present case, the existing Telecommunication mast is installed upon the rooftop of the building, replacement site mast equally any satisfies proposed engineering, structural and aviation requirement base it can be considered technically viable. 32.The 1st Defendant deposes that upon identification of a technically suitable site, the 1 st Defendant is required to negotiate and conclude appropriate lease and/or licence arrangements with the owner(s) of the proposed replacement premises before any regulatory approval can be pursued from, among others, the communication as Authority of Kenya, Kenya Civil Aviation Authority, NEMA and County Government depending on the location and characteristics of the proposed site. 33.The 1st Defendant deposes that it is only after receipt of such approvals or licences that it can undertake Civil works, structural installations, equipment deployment, commissioning, optimisation, testing and integration of the new Telecommunication MILIMANI LC E140 OF 2026 site into the National 11

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Communication Network, before the existing site can safely be decommissioned. 34.The 1st Defendant deposes that the foregoing Technical, commercial, and regulatory processes may vary in length of time depending on the complexity of the relocation, the availability of suitable alternative sites and the timelines of obtaining statutory approvals. 35.The 1st Defendant deposes that it is therefore neither technically feasible nor commercially practicable to dismantle and relocate the Telecommunication mast, immediately upon demand without occasioning significant disruptions to Telecommunications services as sought by the plaintiff herein. 36.On the contrary, it is deposed that what the plaintiff seeks immediately to happen would substantially degrade network coverage within the affected locality, interrupt voice and data services, reduce network resilience and adversely affect thousands of subscribers who presently depend upon the site for reliable Telecommunications services. MILIMANI LC E140 OF 2026 12

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37.The 1st Defendant deposes that the prejudice likely to be occasioned extends beyond the 1st Defendant’s commercial interests and directly affects members of the public who rely upon uninterrupted Telecommunication service for personal communication, business operations, emergency response services, financial transactions, educational activities and access to essential digital services, which, compared to the alleged loss or damage by the plaintiff as substantially greater, widespread and incapable of immediate mitigation. 38. The 1st Defendant deposes that it has acted in good faith by seeking an amicable resolution of the dispute while simultaneously preserving its contractual rights, pending the lawful determination, as the respective parties are interests. 39.The 1st Defendant states that the orders sought would substantially determine the issues before full hearing and, therefore, in the interest of justice, proportionality and wide public interest status now subsisting should be maintained pending hearing and determination of the suit. MILIMANI LC E140 OF 2026 13

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40.The plaintiff 30.7.2026 relies on written isolating five issues submissions for the dated Court's determination. 41.It is submitted that it is not dispensed with that, given there is no eleventh year of rest and no provision by which the physical presence of the mast automatically renews or indefinitely extends the occupation, the interim agreement shows 1.10.2018 was the commencement date; it means the fixed term ends by the close of September 2026. 42.The plaintiff submits that the trespass of the land did not enlarge the 1st defendant’s right or extend the contractual period or convert its fixed occupation into an indefinite entitlement. 43.Further, it is submitted that the subsequent transfer of the property from Raymond Mwangi Waweru to the 2 nd Defendant did not restart the contractual clock or confer a fresh ten-year term. 44.The plaintiff submits that a change in the recipient of the rent for the unexpired balance of the existing term, including the year ending 2026, did not vary the MILIMANI LC E140 OF 2026 14

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commencement date, renew the agreement or postpone its agreed end. 45.The plaintiff submits that the notices did not seek to deprive the 1st Defendant of the benefit of the remaining contractual period. 46.It is submitted that the 1st Defendant has to respect its temporal boundary and prepare to surrender possession after the period bargained for runs its course, since a fixed term does not require a further act of termination to produce an expiry date already incorporated into the contract. 47.The plaintiff submits that a fixed term lease comes to an end upon the lapse of the period agreed by the parties, which therefore in this case is self-executory and does not depend upon proof of breach or service of a notice terminating the agreement prematurely. Reliance is placed on Brand City Ltd. Vs United Housing Estate Ltd (2016) KEHC 2570 (KLR), and Sections 57 & 60 of the Land Act. MILIMANI LC E140 OF 2026 15

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48.The plaintiff submits that the notices issued to vacate appearing on pages 100 and 101 of the filed bundle of documents are clear, consistent and incapable of misunderstanding, with a message for the 1 st Defendant to prepare for the removal of the mast and to surrender the occupied portion when the fixed terms expire, which notice was sufficient enough for the 1st Defendant to identify another site, undertake technical assessment, obtain approval and arrange for an orderly relocation as admitted in the replying affidavit. 49.The plaintiff submits that despite having several months after the notices were served, the 1 st Defendant has done none of the above to prepare for the expiry of the tenancy, even after the plaintiff went out of his way to give contacts of a neighbour, who was willing to offer the 1 st Defendant an alternative site; otherwise it is not true that the relocation is impractical. 50.The plaintiff submits that the served notices were clear that there will be no renewal of the lease or consent to hold over, other than the removal and surrender of possession upon expiry of the fixed term.Reliance is MILIMANI LC E140 OF 2026 16

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placed on Manaver N. Alibhai T/A Diani Boutique Vs South Coast Fitness & Sports Centre Limited, Civil Appeal No. 203 of 1994 (2020) KEHC 5336. 51.The plaintiff submits that, read as a whole, the replying affidavit and the statement of defence by the 1 st Defendant disclose a settled intention to continue occupying the suit property after the ten-year term expires under the pretext of an alleged unlawful determination, based on an asserted subsisting entitlement to occupy the land, even after the expiry of the lease in September 2026. 52.The plaintiff submits that the alleged right of occupation is to expire on 30.9.2026, with no intention to vacate the land upon expiry, or, at the very least, without giving a timetable for dismantling the mast or identifying an alternative site. 53.The plaintiff submits that the purported practical difficulties in relocation do not explain why no disclosed planning commenced after the advance notice was issued or be used as a basis to renew the lease or suspend the operation of its expiry date. MILIMANI LC E140 OF 2026 17

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54.The plaintiff submits that for the 1 st defendant to attempt seeking the existing status quo also to be maintained beyond 30.9.2026 without qualifications would therefore permit the 1st Defendant to remain in occupation beyond the very term upon which it relies, which ends automatically on the date stipulated in its first schedule of the interim agreement. 55. The plaintiff submits that the alleged complexity of relocation strengthens rather than defeats the need for present and structural directions, such as an orderly and reasonable compliance period, and cannot counter a proprietary interest, extend the bargain or leave the surrender date entirely to the 1 st Defendant’s own commercial convenience. 56.The plaintiff submits that the proper inference from the pleadings and the conduct of the plaintiff will remain unless the Court intervenes. 57.The plaintiff submits that its apprehension, given the 1 st Defendant is not occupied preparing to surrender is neither premature nor speculative, but founded on a MILIMANI LC E140 OF 2026 18

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sworn portion by the 1st Defendant to request preserve the occupation the absence of a surrender date and failure to disclose any concrete relocation process. 58.In the circumstances the plaintiff submit that the has met the ingredients in Mrao Limited Vs First American Bank of Kenya Limited & 2 Others (2003) KLR 125 and Nguruman Limited Vs Jan Bonde Nielsen & others (2014) eKLR. 59.The plaintiff submitted that the was not partly and the interim agreement did not negotiate or execute, it did not receive any rent and did not enter into an assignment, novation or fresh agreement accepting the 1 st Defendant as his tenant further the plaintiff submitted that the 1 st Defendant has no registered lease, easement or encumbrances binding against him beyond the fixed term or any other instrument where be surrendered his right to vacant possession. 60.The plaintiff terms the proposition that he saw the mast and accepted the continued occupation as not equivalent to granting a lease, accepting rent, consenting to renewal MILIMANI LC E140 OF 2026 19

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or assuming another proprietor’s personal contractual obligation or consenting to indefinite occupation. 61.The plaintiff submitted that the infringement of the right is not abstract but has interfered with his right or plans to renovate and vertically expand his hospital has deluded his plan or work and the re-opening of the facility thereby depriving him full possession, development and economic utility of the property for which he paid consideration. 62.The plaintiff submitted the threat is equally immediate and is evident from the 1st defendant’s action of depending historical entry and remainder in occupation even after the expiry notwithstanding the plaintiff’s objection and admitted by sworn position in paragraphs 57 & 58 of the replying affidavit. 63.The plaintiff submit that he did not want until 7.10.2026 to permit the threatened unlawful occupation to crystallize given an injunction in preventive in character, and like in this case, the 1st Defendant has sworn to continue with definite interference with his right to enjoy the suit property, to amount to a prima facie case devoted by an identifiable proprietary and possession interest, present MILIMANI LC E140 OF 2026 20

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physical interference and an approaching expiry with a rent likelihood continued occupation thereafter. 64.The plaintiff submit that he is entitled to a measured and structured orders not to truncate the remaining contracted period, or direct immediate dismantling of the mast regardless of technical realities but ask that the 1 st Defendant commences the technical regulatory and logistical steps for relocation now and to complete removal of the mast and the associated installation upon expiry of the fixed term vs within such definite period as the Court may counter just reliance is placed on KBL & Another Vs Washington O.Okeyo (2002) KECA 284 (KLR), Nation Media Group & others Vs John Harry Mwau (2014) KECA 308 (KLR) and Halsbury’s Laws of England 4th edition paragraph 548. 65.The plaintiff submit that this is a clear case and there exists special circumstances to grant a mandatory injunction as the agreement had an express date of expiry and the 1st Defendant despite opposition has sworn to continue occupation beyond the expiry date, without giving a lease or giving details of the date to surrender MILIMANI LC E140 OF 2026 21

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which would impede on his full use, occupation and development of his land. 66.The plaintiff submits that a structure order accommodating both sides what dictation the technical manner in which the relocation must be undertaken would give the 1st Defendant time to preserve network continuity not undertake the necessary regulatory process while protecting the plaintiff from occupation continuing beyond the contractual terms. 67.The plaintiff submits that on the evidence before Court it has to be proportionate and just respond. 68.The plaintiff submit that he is likely to suffer irreparable loss and damage which cannot be compensated by way of damages, since the mast occupies a measurable piece of his land, it sterilizes the portion to any redevelopment and has deprived him the intended renovation and vertical expansion of the hospital with delays in its re-opening. 69.The plaintiff submit that damages cannot restore the time he has lost or restore the interruption including loss of goodwill out of the prolonged closure or the intended expansion of MILIMANI LC E140 OF 2026 medical services to the surrounding 22

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community, which loss or injury is not reducible to a simple arithmetical claim for rent or income at the end of the suit. 70.The plaintiff submit that the balance of convenience is in favor granting the orders against and not to preserve the status quo in favor of the 1 st defendant who will then retain a commercial benefit of its mast while the plaintiff solely bears the loss or injury of delayed use, possession and development of his land. 71.The plaintiff relies on Pius Kipchirchir Kogo vs Frank Kimeli Tenai (2018) KEELC 2424 (KLR) and Another, Suleiman vs Amboseli resort Limited (2004) KEHC 2424 KLR. 72.On public interest the plaintiff while admitting the role of Telecommunications infrastructure, as an important public function, submit that such fact alone does not confer upon an operation such as the 1 st Defendant, an indefinite entitlement to occupy the land after the fixed term has expired. 73.The plaintiff submit that public service must be performed with the law, it does not displace proprietary right or MILIMANI LC E140 OF 2026 23

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refuse one proprietor to subsidize infrastructure indefinitely against his will. 74.The plaintiff submit that public interest is not one sided and in this case, since his hospital equally offers medical service to the residents of Nasra Estate and its neighbors the continued presence of the mast beyond the expiry date must be balanced agent the resolution and expansion of health care service together with the protection of lawful proprietary right. 75.The plaintiff submits that an orderly, time bound relocation that accommodate both public interest, would allow the 1st defendant to plan for continuity of the network while allowing him to complete the re- development and to restore health care services. 76.The plaintiff submit that public interest is not to be served only by indefinite preservation of the present situation but by a structured transition which respect both lawful proprietary rights. 77.The 1st Defendant relies on written submission dated 29.7.2026 isolating from issues for Court’s determination. MILIMANI LC E140 OF 2026 24

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78.The 1st Defendant submit that although the application is framed as an interlocutory one, it seeks to compel the dismantling and relocation of a fully operational Telecommunication installation, which in substance and effect are final in nature, thereby substantially determining the substratum of the suit before the parties have had opportunity to ventilate their respective case at trial. 79. The first Defendant submit that the applicant proceeds on the erroneous assumption that he is entitled b virtue only of his subsequent acquisition of the property, to unilaterally extinguish contractual right lawfully acquired by the 1st Defendant under a subsisting lease, yet the evidence demonstrates otherwise. 80.The 1st Defendant submit that the plaintiff acquired the property with full knowledge of the existing Telecommunication mast with a non-terminated lease. Therefore, it if submitted that he plaintiff has not met the threshold to be entitled to the reliefs sought since there is a subsisting valid binding and enforceable lease yet to be lawfully terminated. MILIMANI LC E140 OF 2026 25

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81.Reliance is placed on Giella vs Cassman Brown & Co.Ltd (1973) EA 358, Nguruman Ltd vs Jan Bond Nielsen & others (2014) eKLR and Mrao Ltd vs First American Bank of Kenya & Others (2003) KLR 125. 82.The 1st Defendant submit that it is not in occupation in a clandestine, unlawful or adversely to the right of the registered proprietary came in through a valid lease dated 4.10.2016 from the previous registered owner, who voluntarily created contractual right and issued warranties long before the plaintiff acquired his interest on the land while the plaintiff never challenged its validity on sought rescission of the contract. 83.The 1st Defendant submit that the plaintiff is not challenging the lease as procured through facts, illegality, misrepresentation or any other vitiating factor under the law. 84.The 1st Defendant submit that the law is that the purchaser who acquires property with actual knowledge of existing interest cannot subsequently seek equitable relief to defeat those very interest. It is submitted that equity and the vigilant but not those who knowingly purchase MILIMANI LC E140 OF 2026 26

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land subject to existing right and thereafter seek to extinguish them through interlocutory proceedings. 85.The 1st Defendant submit that the plaintiff’s own sale agreement expressly provide that the suit property was said subject to all subsisting easement quasi easement and right of way meaning that the contractual intention was unmistakably accepted by the plaintiff voluntarily and cannot therefore now approbate and reprobate by asserting otherwise that the occupation constitute an unlawful infringement warranting equitable intervention. 86.It is submitted that the plaintiff also overlooks the elementary principle of priority of contract, where the lease on executed in his absence, which contractual arrangement between the plaintiff and the 2 nd Defendant cannot vary, extinguish or otherwise prejudice right lawfully acquired by the 1st Defendant under an independence agreement. 87.Further it is submitted that the plaintiff cannot use an interlocutory application to achieve indirectly8 what he could not lawfully achieve directly namely the unilateral extinguished of contractual right vested in a third party MILIMANI LC E140 OF 2026 27

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without its consent and outside the contractual framework agreed upon by parties in a lease. 88.The 1st Defendant submit that such a proposition offend the doctrine of sanctity of contract and undermines commercial certainty, otherwise courts do not rewrite contracts freely entered into by parties. 89.The 1st Defendant submit that the lease agreement is yet to be lawfully terminated and further denies receipt of any valid notice to vacate the premises in line with the lease agreement, which the plaintiff was not even a party to and could not unilaterally terminate accrued right executed by a predecessor to the title. 90.The 1st Defendants submitted any communication outside the contractual arrangements could not operate to terminate the tenancy or extinguish its contractual rights or counterred of occupation, aliess, operation and maintenance of the Telecommunication infrastructure. 91.The 1st Defendant submit that the plaintiff intended use of the suit property cannot override or extinguish contractual right lawfully vested in the 1 st defendants which right MILIMANI LC E140 OF 2026 28

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remain enforceable unless and until they are lawfully terminated. 92.The 1st Defendant submit that since there is no unlawful conduct on its part demonstrated of acting outside the terms of the lease, or unlawfully obstructing any lawful developments or showing that the proposed redevelopment is incapable of awaiting the determination of the substantive issues at trial. It is submitted that the plaintiff has not demonstrated any apparent infringement of a legally enforceable right or irreparable loss or damage such that the infrastructure poses any damage to life, constitutes a nuisance or otherwise renders the property incapable of occupation or use. 93.On the contrary the 1st Defendant submit that the orders sought would prejudice it and the public as deposed in the replying affidavit as a licenced national communication network operator. 94.The 1st Defendant urges the Court to consider as held in Gatirau Peter Munya vs Dickson Mwenda Kithinji & others (2014) eKLR, the wider contingencies of its MILIMANI LC E140 OF 2026 29

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orders, as regard the balance between private and public interest. 95.The 1st Defendant submit that the plaintiff has also failed to meet the test of a grant of temporary mandatory injunction which is the current circumstance are final orders in character and whose issuance will substantially determine the principal relief in the plaints before evidence teste at full hearing of the suit. 96.The 1st Defendant submit that no exceptional circumstances exists in this matter to warrant such relief as held in KBL & Another Vs Washington O. Okeyo (2002) eKLR, Locabail International Finance ltd vs Agroexport & others (1986) 1 ALL ER 901 and in Sibtain J.Shivji & Another vs Telkom Kenya Ltd & another (2012) eKLR. 97.The 1st Defendant submit that in this suit there are contested question of fact regarding determination at trail since parties as can be seen from the respective responses are sharply divided on several substantive questions inter alia, whether the lease remains valid & subsisting, whether the plaintiff has capacity to terminate MILIMANI LC E140 OF 2026 30

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the rights created over the lease if the notice to terminate comply with the lease and the law whether the plaintiff acquired the property subject to the lease and lastly the legal consequence arising out of the knowledge the plaintiff had of the existing Telecommunication infrastructure when he acquired the land. 98.It is submitted that the said issue makes the case not a clear one but one which cannot be resolved through affidavit evidence or which a delated examination of documentary evidence, contractual interpretation and legal submitted at the trial. 99.The 1st Defendant submit that interlocutory proceedings seek to preserve but not to determine the subject matters of litigation and therefore if the orders sought are granted and the infrastructure dismantled, there will be nothing left for trial, contrary to settled law. 100. The 1st Defendant submit that the balance of convenience and the public interested as held in Amir Suleiman vs Amboseli Resort Ltd (2004) eKLR, require adoption of the course carrying the lower risk of injustice to avoid immediate removal that is likely to cause MILIMANI LC E140 OF 2026 31

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significant public prejudice hence the need to maintain the status quo. 101. The 1st Defendant submit that the relocation is not an immediate and straight forward exercise, and has the likelihood of interrupting Telecommunication services on consumers who depend on the site more, so who the plaintiff acquired the land with full knowledge of the existence. 102. The Court is urged to dismiss the application with costs. 103.In the alternative and which prejudice to the foregoing the 1stf Defendant submit that should the Court find the infrastructure has to be relocated then it should direct that any such relocation be undertaken only after the main hearing or within such leasable transition period as the Court may deem fit to enable the 1 st Defendant to comply with the requisite contractual , engineering and regulatory processes necessary to preserve continuity of Telecommunication services. 104.Right has been infringed or violated to call for a rebuttal from the opposite side as held in Mrao Ltd Vs First MILIMANI LC E140 OF 2026 32

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American Bank of Kenya Ltd & others (2003) eKLR. Irreparable loss or damage is one that is substantial, imminent and incapable of quantification in monetary terms as held in Nguruman Ltd Vs Jan Bonde Nielsen & others (2014) eKLR. 105.Balance of convenience refers to the inconvenience being more or great to the plaintiff if the injunction is not granted and the suit ultimately is dismissed, compared to the defendant if it is not granted and the suit ultimately succeeds as was held in Chebii Kipkoech vs Barnabas Tuitoek Bargoria & Another (2019) eKLR, in Pius Kipchichir Kogo vs Frank Kimeli Tenai (2018) KEELC) 2424 KLR. 106.In establishing whether the above tests have been met in a logical sequential and distinctive manner the court does not conduct a Mini trial as held in Nguruman Ltd Vs Jan Bonde Nielsen & others (2014) eKLR. As to mandatory injunction, it is only granted where these are exceptional circumstances held in KBL VS Washington O.Okeyo (2002) KECA 254 KLR. MILIMANI LC E140 OF 2026 33

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107.In Edelvale Trust Jamaa Home & Mission hospital vs Thenya and 2 others ( Civil Appeal 149 of 2020 ( 2026) KECA 1110 KLR ( 12TH June 2026 ( Judgement) the Court said that an order in the nature of a mandatory interim injunction ought not to be granted if an interlocutory stage in the absence of special circumstances , for otherwise it is only available in a divert and in a summary and which could easily be remedied or when the defence attempted to steal a match on the plaintiff as held in Kenya Airport Authority vs Paul Njogu & others Civil Application No. 29 of 1997. 108.In Giella vs Cassman Brown & Co. Ltd (K73) EA 358, the Court held that the dispute was purely a commercial dispute which in the absence of unique circumstances established for the respondent, their injury could readily and easily be remedied through compensation by financial damages. 109.Applying the foregoing principles to the instant suit based on a plaint dated 14.4.2026. 110.He seeks determination that the 1st Defendant’s unlawfully on the suit land, which he purchased from the MILIMANI LC E140 OF 2026 34

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2nd Defendant sole agreement dated 19.10.2022 after initially having been his tenant for over ten years. 111.The 1st defendant in the statement of defence and in replying affidavit denies the alleged illegal occupation since it had a subsisting lease agreement initially with the former registered owner and later on with the 2 nd Defendant dated 4.10.2016 annexed to the attachment as annexure AK I. 112.The 1st Defendant pleads and deposes that the plaintiff brought the land while aware of the occupation for many years due to the lease and whose own sale agreement as per clause no 7 & 7.1 contained in annexure marked AMM 1 (a) & 1(b) was subject to subsisting easement, quasi easement and rights of way if any in response the plaintiff denies the 1st defendants claim. The plaintiff in paragraph 13 & 14 of the plaint blame the defendants for the illegal occupation and or breach of contract dated 17.10.2022. He prays for mesne profit as a result of the illegal occupation since he bought the land free of any of any encumbrances. MILIMANI LC E140 OF 2026 35

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113.An encumbrance in law means any charge, lease or other interest noted or required to be noted in the land register. 114.Interest means a right in or over land. A lease means a short term lease or an agreement to lease. Licensor means the person granting or giving a licence while a lessor means the person granting a lease to a lessee. 115.Overriding interest include inter alia telephone lines or poles and also any other right provided under any wellness law. 116.Part iv & part V of the Land Registration Act and the land Act govern leases. A purchaser of land is expected to adhere too the principle of caveat emptor. 117.A diligent buyer of land in Kenya is expected to be aware of the primary legal framework on land and as held in Dina Management Ltd Vs County Government of Mombasa & Others (2023) eKLR he has to go to the root of the tile to satisfy himself as to the validity of the title that he is about to acquire. 118.Due diligence as held in Tororo Enterprise Ltd Vs AG and in Sehmi vs Tara Bank (2025 KESC 21) KLR MILIMANI LC E140 OF 2026 36

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includes a land search the physical inspection of the property, verification of identity, request from land rates & rents clearance certificate and checking with the National and the county Government. 119.The plaintiff in the main suit seeking to block the 1 st defendant from what it says is it tenanted premises and also for eviction therefore. 120.The 1st Defendant invoke the Kenya Information and Commercial Act cap 411A that it is a licensed and an approved operator to offer public Telecommunication services. 121.Section 85 of the Kenya Information and Communication Act provides that a Telecommunication operator may with the consent in writing of the owner or occupier of any land, and subject to such terms and auditing as may, be agreed to maintain, under, over, along, across, in or upon such land any Telecommunication apparatus or such radio installed or used in communication accordance with apparatus, a radio communication licence. MILIMANI LC E140 OF 2026 37

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122.The Act provides further that it shall be after such agreement, lawful for the provider to enter upon that land to put up equipment and perform all authorities necessary for establish, construct, repairing, improving, examining, altering or performing any other activities in accordance with the order. 123.Section 85(4) of the Act provides that any dispute arising between the operator and the owner as occupier of stay land, with respect to the provision of the Action may be referred to the Tribunal for adjudication within 30 days of the dispute. 124.The plaintiff terms the 1st Defendant a trespasser or illegal occupant of land. He seeking that it be declared an illegal occupant on his land. 125.Trespasser is defined under section 3 (1) of the trespass Act Cap 294 as a person who without reasonable excuse enters in or remains upon or erects any structure or private land without the consent of the occupier or justification. 126.In David & others vs Maswii Civil Appeal 525 of (2019) (2026) KECA 375 KLR 27th February 2026 MILIMANI LC E140 OF 2026 38

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(judgement) the Court cited oxford Dictionary of law, 5 th Edition 2003 that a cause of action are fact that entitle a person to sue one of what may be a wrongful act as in the tort as trespass. 127.The foundation of the plaintiff’s suit is that the 1 st Defendant is wrongful in occupation of part of his land what he did not consent to or approve. 128.The 1st Defendant denies the assertion that it is a wrongful occupant of the suit land given its lawfully took possession, use, occupation and development in October 2016, following a contractual lease which is still valid, subsisting and yet to be lawfully terminated in line with the law and the terms and condition of the lease. The 1 st Defendant pleas, deposes and submits that the privy to the lease, acquired the property or purchase subject to the existing right and interests, as well as its development, hence is estopped in law from approbating by terming its interest or right as act of trespass. 129.The 1st Defendant disputes the assertion by the plaintiff that he has demonstrated a prima facie case for there exists a subsistence contractual relationship which the MILIMANI LC E140 OF 2026 39

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plaintiff has neither lawfully terminated nor otherwise impeached under the law. 130.The 1st Defendant submit that pursuant to the lease, it acquired contractual right to install, operate, maintain and access the Telecommunication mast erected upon the premises while erection had followed it undertaking all the necessary technical evaluation engineering assessment and regulatory approval before investing substantial financial and technical resources in establishing the Telecommunication site. 131.The 1st Defendant avers that the lease contained express warranties by the lessor that it possessed the requisite legal authority to grant the tenancy and to assure the 1st defendant of quiet possession during the subsistence of the lease. 132.The 1st Defendant avers that acting in good faith, the 1 st Defendant relied upon those representation in constructing and commissioning a critical component of its national communication network. 133.The 1st Defendant terms, its continued occupation as neither clandestine, unlawful nor adverse to the registered MILIMANI LC E140 OF 2026 40

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owner, for it arises from enforceable contractual right voluntarily created by the owner of the plaintiff acquired any interest therein. 134.The 1st Defendant submit that the plaintiff neither challenged the validity of that was nor sought the rescission or termed it as procured through fraud, illegality, misrepresentation or any other vitiating factor recognized in law. 135.In Kithaka vs Wangui & others Civil Appeal 155 of 2020 (2026) KECA 255 KLR (13th February 2026 (judgement) the Court cited Megarry’s manual of the law of Real Property 6th Edition 1982 on the definition of licence as a permission by the occupier of land, which without creating any interest in land ,allows the licence to do some and which will otherwise, be a trespass. It went or to state that unlike, a lese or tenancy, a licence need not and usually does not confer a right to the exclusive possession of the land concerned. 136.The Court said that there is also a contractual licence which is created by contract which if the construction of the contract indicated that it was the intention of he MILIMANI LC E140 OF 2026 41

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parties to create and irrevocable licence for a period, any revocation by the licensor in breach of contract may be restrained by injunction or specific performance may be ordered. 137.The Court held that a reading of Article 40 of the constitution leaves no doubt that the constitution protects property or a right or interest in property in the broadest terms possible so as to extent to a property of any description. 138.The Court said a licencee of a rice-holding in Mwea, who is within the terms of the Irrigation Act, enjoys the same constitutional protection as the property owner in Muthaiga, so long as he continues to observe the terms of the statute under which the licence is issued and that the right cannot be taken away arbitrarily because he is a base licencee, for such property enjoys constitutional protection. 139.The hallowed legal maxim is that it is not the business of Court to rewrite contracts between parties. In Pius Kimaiyo Langat vs Cooperative Bank of Kenya Ltd. (2017) eKLR the Court held that parties are bound by the MILIMANI LC E140 OF 2026 42

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terms of their contract unless, coercion, fraud or undue influence are pleaded and proved. 140.Unilateral variation of a contract is ineffective unless mutually agreed as held in Finlex Kenya Ltd vs said Group Ltd (2000) eKLR further contractual terms cannot be imposed retrospectively without consensus as was held in Toyota Kenya Ltd vs Vehicle & Equipment leasing Ltd (2021) eKLR Courts cannot also imply terms which the parties did not agree upon. Court and held in NBK Vs pipe Plastic Samkolit (2011)eKLR must Kenya Ltd & Another give effect to the intention of the parties as disclosed from the contract without imposing new obligation from the sole agreement dated 17.10.2022, the plaintiff acquired the Suitland from the 2 nd Defendant subject to all subsisting easement , quasi easement and right of way between 2022 and the filing of this suit, there is no evidence that the plaintiff took action to revoke, rescind, vary, review and or vacate that binding clause to insist that the 1 st defendant vacates, removes and or surrender, the portion already under Telecommunication equipment since 4.10.2016. MILIMANI LC E140 OF 2026 43

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141.The plaintiff admit that before purchasing the land in 2022, he was already a tenant in the suit properties alongside, the 1st defendant. 142.Easement are legal right that allows someone to enter into a land of the owners and to use pat of if for a specific purpose some of them are called utility easement such as for installation of power lines waterlines, sewer system, fibre optic cables and Telecommunication equipment under the law easement remain valid unless lawfully terminated as way held in Ruth Wamuchi Kaman vs Monica Mivae Kaman Civil Appeal vs 45 of 1983 creation of cancellation, variation, revocation or extinguishment of easement is governed by section 98,99 and 100 of the Land Registration Act. 143.Section 26 of the land Registration Act provides that a title deed may be subject to encumbrances easements, restriction and or overriding rights. 144.In this application the plaintiff has only availed a sole agreement and executed transfer forms. He has not availed a title deed on the other hand the 1 st Defendant has availed a lease with the previous owner and what the MILIMANI LC E140 OF 2026 44

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2nd Defendant did not challenge, dispute and or revoke. Instead the 2nd Defendant while selling the land to the plaintiff made full disclosure of the right and interest of the 1st Defendant of the 1st Defendant on the land due to a subsisting valid legal and lawfully enforceable lease whose lifetime still subsist to date. In the circumstances, the Court find that the 1st Defendant does not fit the description of a trespasser. On the contrary the plaintiff knew of the circumstances of the entry, use, occupation and the development of the 1 st Defendant on the land as per annexture marked AK “1”to the replying affidavit. 145.On top of the above the Court find that the right and interest of the 1st the land as an express utility or service provider through a formal instruction under the Kenya Information and communication Act, has acquired statutory rights and obligation. 146.Insulating the 1st Defendant the access, occupation, operation and the maintenance Telecommunication infrastructure to be termed as conducting and of trespass or an illegal encroached a private land. MILIMANI LC E140 OF 2026 45

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147.Regarding irreparable loss and damage, the law is that any keen purchaser of property must know what he or she is buying as held in Torino Enterprises vs AG (supra). The plaintiff has contended that he was a tenant on the land before assuming the status of a buyer. So the plaintiff cannot deny that he must have undertaken due diligence to establish the nature, extent, terms and conditions of the 1st defendant’s entry, use, possession and occupation of the portion forming part of what he was purchasing. The plaintiff in his own sole agreement assumed possession subject to existing interest easement, quasi easement and right of way. 148.Section 136(2) of the Land Act provides that an easement of incapable of existing only having the subsistence of the land or lease onto of what it was created and is the manner provided by law. 149.Section 98(1) & (3) of the land registration Act provides that an amount may only be granted by an instrument in the prescribed from what must clearly specify the mature and extend of the easement. Right of easement under MILIMANI LC E140 OF 2026 46

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section 28 of the land registration act and section 32 of the Limitation of Actions Act are overriding interest. 150.The plaintiff seeks mandatory injunction at an interlocutory state. In Joseph Kaloki t/a Royal family Assembly vs Nancy Atieno Ouma (2020) eKLR the Court cited Kenya Breweries Ltd & Another vs Washington O.Okeyo ( 2002) eKLR that mandatory injunction at interlocutory granted only however in clear cases. 151.In Shariff Abdi Hassan vs Nadhif Jama Adam (2006) eKLR the Court held that Court are reluctant to grant mandatory injunction at interlocutory stage unless a prima facie case as established that the party against whom the order is sought in on the wrong to ensure justice is meted out without the need to wait for a full hearing of the entire case. 152.In this application there is already evidence that the 1 st Defendant has been on the Suitland since 4.10.2016 what was closed six years before the plaintiff bought the Suitland. The plaintiff in his sole agreement acknowledged MILIMANI LC E140 OF 2026 47

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there were subsisting Telecommunication infrastructure on the land belonging to the 1st defendant. 153.The lease agreement held by the 1 st defendant falls within the section 98 (1) & (3) & 136 (2) of the land act. Land registration Act section 30 of the repealed Registered Land Act cap 300 as read together with section 28 of the land registration act coves the 1 st defendant’s right of entry, and uses based on the lease or agreement to supply Telecommunication services on the suit property. 154.The plaintiff submit that his right is apparent and the irreparable injury, loss or damage is not speculative but actual, substantial, demonstratable and more than a mere apprehensive or assertion. 155.The plaintiff says the replying affidavit and the defence has confirmed his worst fears not the 1 st Defendant intend to stay on the land ever after expiry of the lease yet the term is fixed Courts have held that a case or issue is considered moot and academic when it ceases to present a justiciable controversy or when the dispute has not ripened. MILIMANI LC E140 OF 2026 48

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156.Courts do not pronounce on issues which have no practical value or use. 157.A case is academic where it is merely theoretical, makes empty sound and is of no practical utilitarian value to the plaintiff. Practical situation must be present for the Court to determine an issue as held in Platean State vs AG (2006) 3 NKLR 967. 158.The 1st Defendant takes the view that the plaintiff has suffered no known loss, damage or injury for the Court to intervene at an interlocutory stage otherwise the 1 st Defendant has not breathed the lease or interference in any with the right of the plaintiff. 159.Further the 1st defendant submit that there is no evidence that the Telecommunication infrastructure poses damages to the right of life to the plaintiff. The plaintiff relies on Brand City Ltd vs United Housing Estate Ltd (2016) KEHC 2570 KLR that Manaver N. Alibhai T/9, Diani Boutique vs South Coast fitness & sports Centre Ltd Civil Appeal No 203 OF 1994 to say that despite notice to vacate and surrender the leased portion, the 1st defendants is hiding under the guise of technical MILIMANI LC E140 OF 2026 49

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challenge to purport to remain on the land past the termination date, which has caused him loss, injury and damage so far. 160.The plaintiff urges the Court to issue structured orders or directives by balancing the interest of the registered owner as well as those of the 1st defendants. 161.In Geoffrey M. Asanga & others vs AG petition No. 21 of 2015, the Court observed that Courts of law are not academic instilling to engage in abstract deliberating since their role is to resolve legal issues emanating from live disputes between parties. 162.Courts therefore loath in making pronouncement on academic or hypothetical issues as was held in Institute for Social Accountability & Another or National Assembly & others (2022) KESC 3a (KLR) and in Musana Ole Pere & Another of District Land Adjudication Section & Settlement Officers Narok south & others (2025) KECA 113 (KLR), Court of law will not knowingly act in vain or where the act will serve no useful purpose. Judicial resources ought to be utilized efficiently and should not be dedicated to abstract MILIMANI LC E140 OF 2026 50

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proposition as was held in Normandien Farm (pty) Ltd vs South African Agency for promotion of petroleum exportation and exploitation. 163.SOC Ltd & others (2020) ZACL 5 and Borowiski vs Canada (AG) (1989) 1 SCR 342 second guessing what will happen after 30.9.2026 when the ten years expire, by this Court from the bedrock of Judicial restraint. 164.This Court must deal with existing fact and the law rather than speculative future outcome. 165.It is only after the lease has expired and the 1 st Defendant has refused to vacate on the date of expiry can the dispute ripen. Therefore, I disagree with the submission by the plaintiff that he does not need to wait to invoke. 166.Section 57 & 60 of The Land Act, on the legal character of the status of the 1st Defendant on the land post expiry and its imagined failure to commence timely relocation arrangements. 167.Still before the expiry date the Court would be engaging in an academic exercise to make a finding that the interim MILIMANI LC E140 OF 2026 51

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lease has a definite ten years terms expiring on 30.9.2026. 168.Equally the Court has been invited by both parties from the bar and through submissions to issue present and structured directions, held and find that the complexity may justify an orderly and reasonable compliance period, without conferring any proprietary interest or extending the bargain or leaving the surrender date entirely to the 1 st defendants’ commercial convenience. The plaintiff submits that an unqualified preservation of the status quo would achieve indirectly what the agreement does not grant directly and that the continued occupation after expiry without any definite and date will be injuring to him for failure to disclose any concrete relocation process. 169.On the other hand, the 1st Defendant has urged the Court to confess its wider consequences of the orders sought and if that were to arise to grant reasonable transition period to comply. 170.As a starting point written submissions cannot amount evidence or replace pleadings as was held in D.T Moi vs MILIMANI LC E140 OF 2026 52

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Mwangi Stephen Muriithi (Civil Appeal 240 of 2011) (2014) KECA 642 (KLR) 171.The Court cannot determine on issue which were not captured in supporting or replying affidavit. Evidence of the nexus between the plaintiff and the alleged hospital is missing from the pleadings. The alleged injury, loss or damage to the consumers of medical services and for the intended expansion, closure of the hospital for renovation or vertical supported expansion by any are averment credible and which tangible are not evidence. Similarly, the 1st Defendant has not made substantiations in the name of public interest on the alleged technical, and financial resources expanded to put up the Telecommunication infrastructure on the site as well as the alleged immense resources to be used in dismantling the same, including the timeline reasonable to do so. 172.In Florence Wairimu Mugua Vs Triple Eight Properties Ltd & 2 Others, Civil Appeal No 612 of 2019, the Court addressed the legal consequences of expired leases. The Court affirmed that lease hold interest are finite and extinguish upon expiry and that former MILIMANI LC E140 OF 2026 53

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leaseholders retain no residual proprietary rights unless renewal is lawfully pursued. 173.The imagined issues by the parties herein seem to be arising out of the assumption that expired leases still confer right or legitimate expectation. The Court said that legitimate expectation does not arise from these xxxx or occupation. 174.The Court affirmed that former leaseholders must proactively pursue renewal, as rights do not subsist automatically upon expiry, though they may benefit from priority consideration. See also SCOK petition No.E033 of 2023. 175.The law is that registration of a lease under section 54 of the Land Registration Act creates a presumption of authenticity thereby shifting the burden to disapprove. See Deshi Vs Chemutat & others (2025) KECA 116 (KLR). 176. A lease must be enforceable however under section 3(3) of the law of Contract Act whether registered of not parties may not approbate and reprobate at the same time. Here is a case of a leaseholder or tenant who know MILIMANI LC E140 OF 2026 54

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the lease is about to expire and that a new owner of the land has taken possession yet it does not want to regularize the position whether or not the plaintiff has challenged the lease, or the occupation of the 1 st Defendant is beside the point. The same applies to the plaintiff. I have not seen how the plaintiff’s right before expiry of the lease have been breached by the 1 st defendant. As was held in Kwanza Estate Ltd vs JKUAT (2024) KESC 74 KLR to unilateral termination of a lease without termination clause compliance constitutes a breach. The plaintiff is blamed for not following the law or the termination cause for him to turn around to allege loss damage and injury. Contract to be consented objectively from what the parties said and did rather than their unexpressed intention as held in RTS Flexible Systems Limited VS Molkerie Alois Muller GmbH & Co KG (UK Production) (2010) USKG 14; (2010) 1 WLR 753 and in STOER VS Manchester City Court (1974) IWLR 1403 following from the foregoing the Court find that the plaintiff has failed to prove irreparable loss injury or damage suffered so far or likely to be suffered before the MILIMANI LC E140 OF 2026 55

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expiry of the lease . as to balance of convenience, it is not disputed that the plaintiff was prior to the use, possession, occupation and the development or the portion out of a lease by the 1st defendant arising from the former registered owner. 177.Since purchasing the land on 4th October, 2022 the plaintiff enabled the 1st Defendant to remain on the land until 2025 land early 2026 when he issued the notice marked as AMM (6) & (7). There is no evidence that construction work as per annexure marked AMM (8) have been approved and permitted by the relevant authorities given the existing lease held by the 1st defendant. 178.This Court in the circumstances find the balance of convenience and the lower risk of injustice and held in Amir Suleiman vs Amboseli Resort Ltd (Civil case No. 1078 of 2003)(2004)KEHC 2624(KLR) title is not granting the injunction furthermore there are no exceptional on special circumstances to warrant issuance of a mandatory order of injunction without hearing viva voce evidence from the parties given the MILIMANI LC E140 OF 2026 56

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contested matter of facts and law raised in the pleadings. 179.The upshot is that the application dated 14.4.2026 is dismissed with costs. DATED, SIGNED AND DELIVERED THIS 16TH SEPTEMBER 2026 …………………………… HON. JUSTICE C.K NZILI JUDGE In the presence of: Miss Onsembe for the Plaintiff Miss Maina for the 1st Defendant MILIMANI LC E140 OF 2026 57

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