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ELCPartially Allowed· [2021] KEELC 3401 (KLR)

Emma Adina Porter (Suing on behalf of the Estate of Arthur Thomas Porter) & another v Bixby Limited & 2 others [2021] KEELC 3401 (KLR)

Environment and Land Court
27 April 2021
2,490 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi land court granted a property inspection but refused rent accounts because the parties had already compromised those issues by consent.

What this practically means

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Executive summary

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The Plaintiffs, who claimed the suit property (L.R No. 209/5919/8, Title No. 19139, Manyani Road, Nairobi) formed part of the estate of Arthur Thomas Porter, deceased, filed a suit in March 2019 seeking surrender of the original title, accounts of rent collected since 2012 and vacant possession. An earlier application dated 7th March 2019 was compromised by a consent recorded on 24th October 2019, under which an inhibition order was to remain in force, MMC Africa Law was to give a professional undertaking over the original title, and the parties were to prepare the suit for hearing. The Plaintiffs then filed a further Notice of Motion dated 10th September 2020 seeking access to the property for valuation, police-supervised compliance, accounts of rent collected and taxes paid, and deposit of rent into a joint interest account. The Defendants opposed, contending the application was an abuse of process given the unimpeached consent, and that accounts were a final relief pleaded in the amended plaint. The court agreed that the prayers for accounts and deposit of rent in court were an abuse of process: they re-opened issues compromised by the consent, offended section 1A of the Civil Procedure Act, and sought final relief at an interlocutory stage, with entitlement to rent being contentious and triable only at a full hearing. The court, however, granted temporary access for inspection and valuation, finding no prejudice to the Defendants. The application succeeded partially; costs were in the cause. Ruling delivered at Nairobi on 27th April 2021 by Okong'o, J.

Key legal issues

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01

Abuse of process by re-opening matters covered by a consent order

Holding

The prayers for accounts and payment of rent into court were an abuse of the process because they had been compromised by the consent of 24th October 2019 which remained unimpeached

Reasoning

The parties had, on 24th October 2019, compromised the earlier application dated 7th March 2019 - including the prayer for accounts - to fast-track the main suit. That consent had not been set aside. Raising the same issues afresh through a new interlocutory application buried the compromise and contravened section 1A of the Civil Procedure Act. Foskett's text on compromise was invoked to the effect that an unimpeached compromise buries the original issues.

p. 3
02

Final relief at interlocutory stage

Holding

Accounts could not be granted at an interlocutory stage because they were a final relief pleaded in the amended plaint and depend on the court's findings on ownership at trial

Reasoning

The court held this is not a suit for accounts; the entitlement to accounts turns on ownership of the suit property and the right to receive rent, both contentious matters resolvable only at a full trial. Granting accounts would amount to granting a final relief before hearing the dispute, which is impermissible at the interlocutory stage.

p. 3
03

Access to suit property for inspection and valuation

Holding

Granted as a single unrestricted temporary access during working hours, as no prejudice would be suffered by the Defendants

Reasoning

The court found the Defendants would suffer no prejudice from granting temporary access to enable inspection and valuation. Unlike the accounts prayers, this relief did not conflict with the consent or prejudge contentious ownership issues, and it was allowed on terms, with logistics left to the advocates within 30 days.

p. 3

Legal principles established

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  • An unimpeached compromise ends the dispute from which it arose and the court will not permit the underlying issues to be raised afresh
  • A party cannot obtain a final relief (such as accounts) at an interlocutory stage where it is pleaded as a final prayer in the suit
  • Re-litigating an issue compromised by an extant consent offends the overriding objective of just, expeditious, proportionate and affordable resolution of disputes

Court orders

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  1. 1.The defendants jointly and severally shall grant the 2nd Plaintiff and/or her agents or representatives a single unrestricted temporary access or entry into the suit property during working hours for purposes only of inspecting and conducting a valuation
  2. 2.The date and time of the visit shall be arranged between the advocates but shall take place within 30 days
  3. 3.The costs of the application shall be in the cause

Authorities

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Legislation

  • Civil Procedure Actsection 1A
  • Civil Procedure RulesOrder 11
Jurisdiction invoked
Original civil jurisdiction over the suit; interlocutory application under the Civil Procedure Act (section 1A) and Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Emma Adina Porter (Suing on behalf of the Estate of Arthur Thomas Porter) & another v Bixby Limited & 2 others [2021] KEELC 3401 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3401/eng@2021-04-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.