Oceanic Towers Limited v Abdulrahman Bahassan

in this Court is the road of evidence. That, in short, is the fate of one of the two applications before me, and the making of the other. 2. This Ruling determines two applications, both brought by the Plaintiff, and both canvassed together at the Plaintiff’s own invitation. 3. The first is the Notice of Motion dated 9th July 2025, brought under Sections 1A, 1B and 3A of the Civil Procedure Act, Order 40 Rules 1, 2 and 3, and Order 51 Rules 1 and 4 of the Civil Procedure Rules, 2010, by which the Plaintiff seeks a temporary injunction restraining the Defendant from acts of nuisance, harassment and obstruction at its residential building known as Oceanic Towers, erected on Plot No. Mombasa/Block XXVI/1063 along Kaunda Avenue, Mombasa. 4. The second is the Notice of Motion dated 11th May 2026, brought under Sections 1A, 1B and 3A of the Civil Procedure Act, Order 36 Rule 1(b), and Order 51 Rules 1 and 4 of the Civil Procedure Rules, 2010, by which the Plaintiff seeks summary judgment against the Defendant for vacant possession of Apartment No. 604 on the 6th Floor of Oceanic Towers, together with unpaid rent of Kshs 2,626,650 as at 2nd May 2026, and consequential orders for eviction and police assistance. 5. The Defendant’s Notice of Motion dated 15th June 2026, by which he sought a stay of delivery of the ruling then RULING: ELCLC/E080/2025 Page 2 of 29

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reserved and leave to file a Replying Affidavit and a Defence out of time, was the only document ever filed by the Defendant in this case. It was canvassed and determined separately by this Court on 14th July, 2026, and it does not fall for determination in this Ruling. It is mentioned here for one reason only, that being on the record, the material placed before the Court by that motion forms part of the record which this Court is bound to consider in deciding whether the Plaintiff’s claim is one that may properly be disposed of summarily. 6. By the Plaint dated 9th July 2025, supported by the verifying affidavit of one Mitesh Amritlal Khimchand Visaria of even date, the Plaintiff pleads that it is the registered proprietor of Oceanic Towers; that Apartment No. 604 was let to one Salma Nassir Ali Said Omayer (“Salma”) under a tenancy agreement dated 22nd October 2020 running from 1st November 2020 to 31st October 2024; that the non-renewal of that tenancy communicated to Salma by email dated 4th was September 2024; that the tenancy permitted not more than five occupants, and that Salma’s occupants’ list dated 28th October 2020 named the Defendant as one such permitted occupant; and that upon the expiry of the tenancy the Defendant refused to vacate, remaining in occupation without payment of rent and deploying police officers to shield his continued presence and to intimidate the RULING: ELCLC/E080/2025 Page 3 of 29

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Plaintiff’s staff and other tenants. The Plaintiff prays, in the suit, for the following reliefs: i. A permanent injunction restraining the defendant from engaging in any acts of nuisance or disturbance at the residential building known as Oceanic Towers which is constructed on plot number Mombasa/Block XXVI/1063 along Kaunda Avenue, Mombasa; ii. A permanent injunction restraining the defendant from harassing the plaintiff’s tenants and/or employees, barricading Oceanic Towers lifts, triggering fire alarms at Oceanic Towers, and blocking other tenant’s from accessing the Oceanic Towers building and/or parking; iii. An order to evict the defendant from the 4bedroom apartment identified as number 604 that is on the 6th floor of the residential building known as Oceanic Towers which is constructed on plot number Mombasa/Block XXVI/1063 along Kaunda Avenue, Mombasa; iv. A permanent injunction restraining the defendant from trespassing onto the residential building known as Oceanic Towers which is constructed on plot number Mombasa/Block XXVI/1063 along Kaunda Avenue, Mombasa; RULING: ELCLC/E080/2025 Page 4 of 29

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v. An order directing the defendant to refund the plaintiff the amount spent on repairing the building lifts; vi. General damages and interest at court rates for trespass, sabotaging the plaintiff’s lifts and causing disturbance; and vii. Costs of the suit and interest at court rates. B. THE PRAYERS SOUGHT IN THE TWO APPLICATIONS 7. Because much turns, in this Ruling, upon precisely what each application asks this Court to do, it is convenient to set out the prayers in both motions in their own terms rather than in paraphrase. (i) The Notice of Motion dated 9th July 2025 8. The Plaintiff’s Notice of Motion dated 9th July 2025, supported by the affidavit of Mitesh Amritlal Khimchand Visaria sworn on 9th July 2025, seeks orders that: i. This application be certified as urgent, service thereof be dispensed with in the first instance and it be heard ex parte. ii. Pending the hearing and determination of this application, the defendant be restrained from: (a) Engaging in any acts of nuisance or disturbance at known Oceanic RULING: ELCLC/E080/2025 as the residential Towers building which Page 5 of 29 is

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constructed on plot number Mombasa/Block XXVI/1063 along Kaunda Avenue, Mombasa; (b) Harassing occupants the and/or plaintiff’s employees, tenants, barricading Oceanic Towers lifts, triggering fire alarms at Oceanic Towers, and/or blocking other tenant’s from accessing the Oceanic Towers building and/or parking. iii. Pending the hearing and determination of this suit, the defendant be restrained from: (a) Engaging in any acts of nuisance or disturbance at known Oceanic as the residential Towers building which is constructed on plot number Mombasa/Block XXVI/1063 along Kaunda Avenue, Mombasa; (b) Harassing occupants and/or the plaintiff’s employees, tenants, barricading Oceanic Towers lifts, triggering fire alarms at Oceanic Towers, and blocking other tenant’s from accessing the Oceanic Towers building and/or parking. iv. The plaintiff to use reasonable and lawful means necessary to remove any barricade erected by the defendant on its building lifts and/or its parking area. RULING: ELCLC/E080/2025 Page 6 of 29

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v. 9. Costs of this application be provided for. Prayer 1 was spent upon the certification of urgency and the ex parte hearing of the application, and the interim orders granted by this Court on 15th July 2025 in terms of prayer 2. The prayers that remain live for determination are prayers 3, 4 and 5. (ii) The Notice of Motion dated 11th May 2026 10. The Plaintiff’s Notice of Motion dated 11th May 2026, supported by the affidavit of Mitesh Amritlal Khimchand Visaria sworn on 11th May 2026, seeks orders that: i. This application be determined concurrently with the plaintiff’s notice of motion dated 9th July 2025. ii. Summary judgment be entered against the defendant for vacant possession of the premises known as a four (4) bedroom apartment number 604 on 6th floor on plot number known as Mombasa/Block XXVI/1063 Kaunda Avenue, Mombasa (suit apartment) and unpaid rent of Kshs 2,626,650 as at 2nd May 2026. iii. If the defendant fails to voluntarily vacate the suit apartment, leave be granted to the plaintiff to evict him, his employees, his servants, his agents and/or any person(s) claiming under him or through him from the suit apartment. RULING: ELCLC/E080/2025 Page 7 of 29

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iv. The OCS, Central Police Station Mombasa to keep the peace during the eviction of the defendant from the suit apartment. v. Costs of this application be provided for. 11. Prayer 1 was granted, and the two applications were accordingly heard together and are disposed of by this single Ruling. Prayers 2, 3, 4 and 5 remain for determination. C. THE PARTIES’ RESPECTIVE POSITIONS The Plaintiff 12. The Plaintiff’s case, as deposed by its director Mitesh Amritlal Khimchand Visaria and as submitted by learned counsel Mr. Mugambi in written submissions dated 28th June 2026, is that the only tenancy ever created over the suit apartment was that between the Plaintiff and Salma; that the Defendant was named in Salma’s occupants’ list dated 28th October 2020 as no more than a permitted occupant; that the tenancy lapsed by effluxion of time on 31st October 2024 and was never renewed; and that the Defendant’s continued occupation since that date is that of a trespasser, sustained not by any colour of right but by force, intimidation and the deployment of police officers. The Plaintiff has placed on record photographs of the obstruction of the building lifts and driveway by motor vehicle registration number KCC 272S, extracts of the RULING: ELCLC/E080/2025 Page 8 of 29

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building’s security occurrence book, and a statement of arrears showing no rent received since 8th November 2024 and arrears of Kshs 2,626,650 as at 2nd May 2026. It relies on the decision of the Supreme Court of Kenya in Kwanza Estates Limited v Jomo Kenyatta University of Agriculture and Technology [2024] KESC 74 (KLR) for the proposition that neither a landlord nor a tenant may impose a tenancy relationship upon the other once the legal basis of occupation has ceased, and submits that the Defendant, having filed no defence, raises no bona fide triable issue. The Defendant 13. The Defendant has filed no memorandum of appearance, no statement of defence, and no replying affidavit to either application. His only engagement with these proceedings was his Notice of Motion dated 15th June 2026, separately determined, in which he sought leave to file a Replying Affidavit and a Defence and asserted, among other things, that bankers’ cheques dated 4th July 2025 drawn in favour of the Plaintiff were tendered by him in payment of rent. No defence on the merits is therefore formally before this Court. D. THE COURT’S DIRECTIONS RULING: ELCLC/E080/2025 Page 9 of 29

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14. The procedural history bears recording, because a court that is asked to shut a litigant out must first be able to show that it held the door open. 15. On 30th June 2026, this Court granted leave and gave directions for both parties to file and serve their responses and their written submissions on the two applications. Counsel for the Defendant indicated to the Court that the Defendant’s response would be filed before 14th 2026. On 14th July July 2026, counsel for the Defendant tendered an apology for not having filed the response and submissions, and undertook to file the same by the end of that day. This Court, extending a further indulgence rather than visiting the Defendant with the consequences of his default, directed that the Defendant file his response within 24 hours as prayed by themselves, granted the Plaintiff correlative leave to file a further affidavit in response thereto, and directed both parties to file their written submissions. 16. Nothing was filed. The record on the Court Tracking System discloses no replying affidavit, no defence and no submissions filed by the Defendant pursuant to those directions, and no explanation for the omission. The Plaintiff, for its part, submissions dated 28th had already filed its written June 2026 addressing both applications. RULING: ELCLC/E080/2025 Page 10 of 29

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17. A litigant who is thrice shown the door and thrice declines to walk through it cannot afterwards complain that the door was too narrow. But the converse is equally true, and it is the proposition that governs the first issue in this Ruling: a default of pleading does not enlarge the jurisdiction of the court. It relieves the Plaintiff of contradiction; it does not relieve the Plaintiff of proof, nor does it convert a claim that the Rules do not permit to be tried summarily into one that they do. E. ISSUES FOR DETERMINATION 18. Having considered the two applications, the supporting affidavits and annexures, the pleadings, the record of the proceedings and the Plaintiff’s written submissions, the issues that fall for determination are: a. Whether the Plaintiff is entitled to summary judgment under Order 36 Rule 1(b) of the Civil Procedure Rules, 2010 for vacant possession of the suit apartment and for the rent arrears claimed; b. Whether the Plaintiff is entitled to the temporary injunction sought in its Notice of Motion dated 9th July 2025; c. What further directions are appropriate for the disposal of the suit; and RULING: ELCLC/E080/2025 Page 11 of 29

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d. Who should bear the costs of the two applications. F. ANALYSIS AND DETERMINATION Issue (a): Whether the Plaintiff is entitled to summary judgment 19. Order 36 Rule 1 of the Civil Procedure Rules, 2010 provides: “(1) In all suits where a plaintiff seeks judgment for— (a) a liquidated demand with or without interest; or (b) the recovery of land, with or without a claim for rent or mesne profits, by a landlord from a tenant whose term has expired or been determined by notice to quit or been forfeited for non-payment of rent or for breach of covenant, or against persons claiming under such tenant or against a trespasser, where the defendant has appeared but not filed a defence the plaintiff may apply for judgment for the amount claimed, or part thereof, and interest, or for recovery of the land and rent or mesne profits. (2) The application shall be supported by an affidavit either of the plaintiff or of some other RULING: ELCLC/E080/2025 Page 12 of 29

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person who can swear positively to the facts verifying the cause of action and any amount claimed. (3) Sufficient notice of the application shall be given to the defendant which notice shall in no case be less than seven days.” 20. The rule is narrow by design, and the courts have kept it so. In Lalji t/a Vakkep Building Contractors v Carousel Limited [1989] KECA 60 (KLR), the predecessors of the Court of Appeal held that: “Summary judgment is a draconian measure and should be given in only the clearest of cases. A trial must be ordered if a triable issue is found or one which is fairly arguable is found to exist.” 21. That passage was adopted by the Court of Appeal in Job Kilach v Nation Media Group Ltd, Salaba Agencies Ltd & Michael Rono [2015] KECA 846 (KLR), where the Court further observed that “[a]n application for summary judgment under order XXXV rule 1 (now order 36 rule 1) may be made where the sum claimed is a liquidated sum, or where the defence rises no triable issues, and is a mere sham.” In Continental Butchery Limited v Nthiwa [1978] KECA 28 (KLR), Madan JA described the office of the rule in these terms: “With a view administration RULING: ELCLC/E080/2025 to of eliminate justice delay which in the would keep Page 13 of 29

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litigants out of their just dues or enjoyment of their property, the court is empowered in an appropriate suit to enter judgment for the claim from the plaintiff under summary procedure provided by Order 35 subject to there being no triable issues which would entitle a defendant leave to defend.” 22. And in Industrial Corporation v and Commercial Daber Development Enterprises Limited [2000] KECA 413 (KLR) the Court of Appeal set the outer boundary of the jurisdiction: “The purpose of the proceedings in an application for summary judgment is to enable the plaintiff to obtain a quick judgment where there is plainly no defence to the claims. To justify summary judgment, the matter must be plain and obvious, a party to a civil litigation is not to be deprived of his right to have the case tried by a proper trial where if necessary, there has been discovery and oral evidence subject to cross examination.” 23. Three difficulties, each of them fatal, stand between the Plaintiff and the summary judgment it seeks. I take them in turn. 24. First, the claim in the Plaint is not a liquidated demand, and it is not confined to the recovery of land with rent or mesne profits. The reliefs pleaded, itemised at paragraph 4 RULING: ELCLC/E080/2025 Page 14 of 29

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above, comprise three separate prayers for a permanent injunction, an order of eviction, an order for the refund of “the amount spent on repairing the building lifts”, and general damages and interest at court rates “for trespass, sabotaging the plaintiff’s lifts and causing disturbance”. A liquidated demand is a sum certain, ascertained or ascertainable by computation from the pleading itself without the intervention of the court’s assessment. General damages are the antithesis of a liquidated demand: they are, by definition, damages at large, whose quantum only a court may fix after hearing evidence. The claim for the cost of repairing the lifts is pleaded without figures, particulars, invoice or computation, and must likewise be proved. A permanent injunction is a final equitable remedy resting on findings of fact as to a course of conduct, its continuance and its likelihood of repetition; it is not the sort of relief the summary jurisdiction was created to deliver. The Plaintiff’s own counsel came close to acknowledging this at paragraph 30 of the submissions dated 28th June 2026, where the Court was invited to enter summary judgment for vacant possession and rent “with the remaining claims, if necessary, proceeding to formal proof or assessment”. That concession is telling. A plaintiff who must go to formal proof for part of his claim gains nothing but fragmentation by taking summary judgment on the rest, and this Court gains nothing but the risk of two inconsistent records in the same suit. RULING: ELCLC/E080/2025 Page 15 of 29

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25. Secondly, the summary jurisdiction in Order 36 Rule 1 is expressly conditioned upon the defendant having “appeared but not filed a defence”. The Plaintiff’s own submissions record, and the Court Tracking System confirms, that the Defendant has never entered appearance in this suit. Where a defendant has not appeared at all, the machinery that the Rules provide is that of Order 10, not Order 36, and Order 10 Rule 6 makes plain that where the plaint is drawn with a claim for pecuniary damages the plaintiff must “set down the suit for assessment by the court of the damages”; Order 10 Rule 10 applies those provisions, with any necessary modification, where a defendant has failed to file a defence. The Plaintiff has invoked the wrong short cut, and a court may not widen a rule of procedure merely because the party in default is unattractive. 26. Thirdly, and even if the first two obstacles were surmounted, the material on the record is not “plain and obvious” in the sense required by Daber Enterprises. The Plaintiff’s case stands or falls on the proposition that the Defendant was never its tenant. Out of an abundance of caution appropriate to so significant a remedy, I have examined the tenancy agreement dated 22nd October 2020 with care. The execution clause of that agreement names Mr. Abdulrahman Bahassan, the Defendant, as tenant. Whether he signed in his own right or merely for and on behalf of Salma, and what is to be made of the RULING: ELCLC/E080/2025 Page 16 of 29

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occupants’ list dated 28th October 2020 which names him as a permitted occupant, are questions upon which the document speaks with two voices. To these must be added the Defendant’s assertion, made on oath in his Notice of Motion dated 15th June 2026 and thus part of this record, that bankers’ cheques dated 4th July 2025 drawn in favour of the Plaintiff were tendered by him in payment of rent, a matter of some significance where the Plaintiff’s case is that no tenancy relationship with the Defendant ever existed at all. I say nothing about the weight of any of this material, and nothing about who will ultimately succeed. I say only that the status of the Defendant as tenant or trespasser, and the quantification of any rent or mesne profits consequent upon that status, are matters that require the interrogation of evidence, and that a court which resolved them on affidavits alone would not be taking a short cut but trespassing upon the trial. 27. It follows that the Defendant’s silence, striking though it is, cannot avail the Plaintiff on this application. The absence of a defence removes contradiction; it does not supply the two things the Plaintiff lacks, namely a liquidated demand and a claim confined to the recovery of land. As Spry V.P.(as he then was) observed in Mohammed & Another v Haidara [1972] EA 166, allegations left unanswered may properly be taken as true, but a proposition taken as true is still a RULING: ELCLC/E080/2025 Page 17 of 29

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proposition that must be proved to the measure the law requires, and the measure here is proof at a hearing. 28. For these reasons I find that this suit is not a proper case for summary judgment. The Plaintiff’s Notice of Motion dated 11th May 2026 must fail, and prayers 2, 3 and 4 thereof are declined. I should add, for the avoidance of any doubt, that in declining that motion this Court makes no finding whatsoever on the merits of the Plaintiff’s claim to vacant possession or to the arrears of Kshs 2,626,650. Those claims remain open, wholly unaffected by this Ruling, and will be determined on the evidence at the hearing directed below. Issue (b): Whether the Plaintiff is entitled to a temporary injunction 29. The refusal of summary judgment is not the refusal of protection. Indeed the two findings sit comfortably together: precisely because the rights of the parties must await a hearing, the subject matter and the safety of those who live around it must be preserved in the meantime. That is the office of a temporary injunction. 30. The classical conditions were laid down in Giella v Cassman Brown & Company Limited [1973] EA 358: an applicant must show a prima facie case with a probability of success; he must show that he might otherwise suffer irreparable injury which cannot adequately be compensated by an award of damages; and, if the court RULING: ELCLC/E080/2025 Page 18 of 29

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is in doubt on the second, it will decide the application on a balance of convenience. These conditions are sequential and may not be leap-frogged: Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] KECA 606 (KLR). 31. On the first condition, a prima facie case is, per Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR) “a case in which on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party to call for an explanation or rebuttal from the latter. A prima facie case is more than an arguable case. It is not sufficient to raise issues but the evidence must show an infringement of a right, and the probability of success of the applicant’s case upon trial. That is clearly a standard, which is higher than an arguable case.” 32. It is important to be precise about the right the Plaintiff asserts on this application, for it is not the same right as the one that must await trial. Whether the Defendant is a tenant or a trespasser is a triable question. That he is not entitled, in either capacity, to barricade the building’s lifts, to obstruct its driveway and basement parking with motor vehicle registration number KCC 272S, to tamper with the RULING: ELCLC/E080/2025 Page 19 of 29

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lifts’ safety and fail-safe mechanisms, to trigger the fire alarms at night, or to procure the harassment of the Plaintiff’s staff and co-tenants, is not a triable question at all. No tenancy, however valid, carries with it a licence to do any of those things. The Plaintiff is the registered proprietor of Oceanic Towers and, as this Court affirmed in Church Commissioners for Kenya v Dume & 12 Others [2026] KEELC 1457 (KLR), every landowner is entitled to the quiet possession and enjoyment of the incidents of ownership free from interference, that being the bedrock of Article 40 of the Constitution of Kenya, 2010. The photographs, the security occurrence book entries and the dated chronology of incidents on the nights of 7th and 8th April 2025, on 19th and 20th November 2025 and on 4th October 2025, on 2nd November 2025, all of it unrebutted, disclose an apparent infringement of that right calling plainly for rebuttal. The first condition is satisfied. 33. On the second condition, the injury apprehended is not the loss of rent. Rent is measurable and, if proved, compensable, and had the Plaintiff’s case rested there, an injunction would have been refused. The injury that matters here is of a wholly different order. A barricaded lift and an obstructed driveway are not merely an inconvenience to a landlord’s balance sheet; they are the removal of the means of escape and of rescue for every other occupant of a multistorey residential building. A fire alarm tampered with is a RULING: ELCLC/E080/2025 Page 20 of 29

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warning that will not sound on the night it is needed. Damages, however generously assessed, cannot restore a life lost or a body burned because a lift was chained shut or an ambulance could not reach a driveway. Such harm is, in the language of Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] KEELC 2424 (KLR), injury for which there is no standard by which its amount can be measured with reasonable accuracy, and for which monetary compensation of whatever amount will never be an adequate remedy. The second condition is satisfied, and I need not descend to the third. 34. I would add that were I in any doubt, the balance of convenience would point the same way. An order restraining nuisance, obstruction and interference with firesafety installations takes nothing from the Defendant to which he could conceivably be entitled, whether he is tenant or trespasser, while its absence leaves the Plaintiff, its staff and the innocent co-tenants of Oceanic Towers exposed to a risk that is real, foreseeable and potentially irreversible. An injunction that costs a defendant nothing but his misconduct is the easiest order a court can make. 35. As to prayer 4, namely leave to the Plaintiff to use reasonable and lawful means necessary to remove any barricade erected by the Defendant on the building lifts and/or its parking area, this Court grants it on conditions, and does so on a narrow and deliberate footing. The prayer RULING: ELCLC/E080/2025 Page 21 of 29

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does not authorise eviction, does not touch the Defendant’s occupation of the suit apartment, and does not permit entry into it. It must be reasonable and does no more than confirm what the law already permits a proprietor to do in respect of the common areas of its own building, namely to restore the free passage of lifts and driveways serving all its occupants, and it is to be exercised without harm, breach of the peace and, where necessary, with the assistance of the police. 36. The Plaintiff has therefore made out its case for the temporary injunction sought, and prayers 3 and 4 of the Notice of Motion dated 9th July 2025 are granted in the terms set out in the disposal orders below. This relief operates pendente lite and carries with it no finding on the Defendant’s status or on the merits of the suit, both of which remain entirely open. Issue (c): The appropriate course for the disposal of the suit 37. Having declined summary judgment, this Court must not leave the Plaintiff where it found it. A litigant who has been in and out of this Court since July 2025, whose pleadings and applications have been served upon the Defendant by every ordinary means and by substituted service affixed to the very door of the suit apartment pursuant to leave granted on 29th September 2025, and whose opponent has answered none of it, is entitled to have his claim heard RULING: ELCLC/E080/2025 Page 22 of 29

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and brought to an end. Justice delayed is not merely denied; it is, in cases of this kind, converted into a standing invitation to prolong occupation by silence. 38. Sections 1A and 1B of the Civil Procedure Act require this Court to facilitate the just, expeditious, proportionate and affordable resolution of the dispute, and to use the powers conferred by the Act for that purpose, including the efficient disposal of the business of the court and the timely disposal of proceedings at a cost affordable to the parties. The proper course, where a defendant has neither appeared nor defended and where the claim includes unliquidated and equitable reliefs, is not summary judgment but formal proof. At formal proof the Plaintiff will call its evidence, its witnesses will be sworn, its documents will be produced and tested, and this Court will make findings on the Defendant’s status, on vacant possession, on rent or mesne profits, on the cost of repairing the lifts, on general damages and on the permanent injunctions sought. That is the high road, and in this case it is also the short one. 39. Let it not be thought, however, that this closes the door upon the Defendant. It leaves him precisely where the law places him, which is not the same thing. He remains at liberty to move this Court, for further leave to enter appearance and file his defence out of time; and such an application will be weighed upon its merits and not upon the history of his silence alone. What he may not do is set RULING: ELCLC/E080/2025 Page 23 of 29

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the pace of this litigation by doing nothing. The door is neither locked nor held open; it is simply left where the Rules put it, and the Defendant must walk to it himself. 40. The suit shall accordingly be set down for formal proof on 16th November 2026. That date affords the Plaintiff ample time within which to file and serve its witness statements and documents and to effect service of the hearing notice, and affords the Defendant, should he elect at last to move this Court, sufficient time within which to do so. If he does nothing, the suit will proceed to formal proof upon that date and this Court will determine it upon the Plaintiff’s evidence alone. Issue (d): Costs 41. Costs follow the event under the proviso to Section 27 of the Civil Procedure Act, Cap 21, unless the court for good reason directs otherwise. The event here is divided. The Plaintiff has succeeded on its Notice of Motion dated 9th July 2025 and has failed on its Notice of Motion dated 11th May 2026. The Defendant, though technically successful in resisting the latter motion, resisted nothing: he filed no response, no submissions and no appearance, and put this Court and the Plaintiff to the expense of three sets of directions which he then ignored. A party who succeeds by the operation of a rule of procedure rather than by any effort of his own is not to be rewarded with costs. I therefore award the Plaintiff the costs of the Notice of RULING: ELCLC/E080/2025 Page 24 of 29

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Motion dated 9th July 2025, and make no order as to the costs of the Notice of Motion dated 11th May 2026, the costs of the suit to abide the outcome of the case. G. CONCLUSION AND DISPOSAL ORDERS 42. I return to the footpath across the field. The Plaintiff came to this Court with a grievance that is, on the face of the record, both serious and largely unanswered: a building whose lifts have been barricaded, whose driveway has been blocked, whose fire alarms have been triggered in the small hours, whose employee spent three days in a police cell and was released without charge, and whose apartment has yielded no rent since November 2024. Nothing in this Ruling diminishes any of that. But the Plaintiff asked this Court to reach the end of the journey by a path the Rules do not open to it, and a court that took that path to please a deserving litigant would soon find itself taking it to please an undeserving one. The remedy for a plaintiff in the Plaintiff’s position is not a shorter road but a swifter journey along the proper one, and this Court now provides it, together with such protection as the Plaintiff, its staff and the other residents of Oceanic Towers need while the journey is made. 43. For the reasons set out above, I make the following orders: RULING: ELCLC/E080/2025 Page 25 of 29

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a. The Plaintiff’s Notice of Motion dated 11 th May 2026 seeking summary judgment under Order 36 Rule 1(b) of the Civil Procedure Rules, 2010 is declined and is hereby dismissed. b. The Plaintiff’s Notice of Motion dated 9th July 2025 is allowed in terms of prayers 3 and 4 thereof. Accordingly, pending the hearing and determination of injunction hereby is this suit, issued a temporary restraining the Defendant, his servants, agents, employees and any person(s) claiming under or through him from: (i) Engaging in any acts of nuisance or disturbance at the residential building known as Oceanic Towers constructed on plot number XXVI/1063 along Mombasa/Block Kaunda Avenue, Plaintiff’s tenants, Mombasa; and (ii) Harassing occupants the and/or employees, barricading the Oceanic Towers lifts, tampering with the lifts’ safety or failsafe mechanisms, triggering the fire alarms at Oceanic Towers, and blocking other tenants from accessing RULING: ELCLC/E080/2025 Page 26 of 29

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the Oceanic Towers building and/or its parking. c. The interim orders granted on 15th July 2025 in terms of prayer 2 of the Notice of Motion dated 9th July 2025 are hereby subsumed in and superseded by the temporary injunction granted in order (b) above. d. The Plaintiff is at liberty to use reasonable and lawful means necessary to remove any barricade erected by the Defendant on its building lifts and/or its parking area, such liberty to be exercised without harm, breach of the peace and, where necessary, with the assistance of the police. This order confers no liberty to evict the Defendant from the suit apartment or to enter the same. e. The temporary granted in injunction orders (b) and and (d) the liberty above are interlocutory only and shall not be construed as any determination of the Defendant’s status as tenant or trespasser, which question is reserved to the hearing of the suit. f. The Plaintiff shall, within twenty-one (21) days of the date of this Ruling, file and serve its trial bundle that will include a summary of its case, RULING: ELCLC/E080/2025 Page 27 of 29

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pleadings, witness statements, documentary evidence and its list and bundle of documents. g. The suit is hereby fixed for pre-trial conferencing or formal proof, whichever will be applicable, on 16th November 2026 at 9.00 o’clock in the forenoon. h. The Plaintiff shall issue and serve upon the Defendant a hearing notice in respect of the date fixed for 16th November 2026, and shall file an affidavit of service in respect thereof not less than twenty-one (21) days before that date. i. A copy of this Ruling, and the hearing notice referred to in order (h) above, shall be served upon the Defendant by the Plaintiff, this Ruling within seven (7) days hereof, through his advocates on record, and by affixing a copy on the outer door of the suit apartment, and an affidavit of service shall in each case be filed. j. The Plaintiff shall have the costs of the Notice of Motion dated 9th July 2025. There shall be no order as to the costs of the Notice of Motion dated 11th May 2026. The costs of the suit shall abide the outcome of the case. It is so ordered. RULING: ELCLC/E080/2025 Page 28 of 29

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DATED, SIGNED and DELIVERED virtually via Microsoft Teams at MOMBASA this 1st day of October, 2026. …………………………………………. B. A. AKELLO, OGW JUDGE In the presence of: Gillian – Court Assistant Mugambi for the Plaintiff No appearance for the Defendant RULING: ELCLC/E080/2025 Page 29 of 29

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