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ELCStruck OutEnvironment & Land Case 211 of 2009· [2023] KEELC 19967 (KLR)

Ali & 3 others v Ojowi & 2 others (Sued as legal representative of Dismas Osiri - Deceased) & another

Environment and Land Court
21 September 2023
AOAA Omollo
837 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out an estate's eviction and damages application because it depended on an undecided challenge to a consent order.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nairobi (AA Omollo, J) determined a notice of motion dated November 23, 2021 brought by Elsa Ojowi, the 1st Defendant, sued as a legal representative of the estate of Dismas Osiri (deceased). She sought eviction of the 2nd Defendant (Daripro Kenya Ltd) for trespass, restoration of structures demolished by the 2nd Plaintiff on LR NO 36/II/130 with damages of Kshs 6,475,300, disclosure of accounts relating to Kshs 4,000,000 allegedly paid to the estate, an account from the 1st Plaintiff of Kshs 20,000,000 allegedly owed to the estate, and costs. She argued the eviction was founded on illegality, fraud and misrepresentation, and that the decree recorded a consent of July 5, 2021 indicated the estate received Kshs 40,000,000 it never saw. The application was opposed by co-administrator Julita Akeyo and the 2nd Defendant. The court held that the orders sought were dependent on the outcome of the applicant's own unprosecuted application dated October 27, 2021 to set aside the consent order; restoration of demolished structures could only follow if the decree was set aside. On the accounting claims, the applicant, sued as administrator and not individually, was directed to pursue separate proceedings against her co-administrator. The court struck out the application as an abuse of process, premature and without merit, and declined costs in view of the applicant's demise, which had been brought to the court's attention but did not derail the reserved ruling.

Key legal issues

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01

Whether the application was premature and an abuse of court process

Holding

The application was struck out as premature, an abuse of process and without merit because it depended on an undecided application to set aside the consent order

Reasoning

The applicant's prayers, including restoration of demolished structures and eviction, could only be granted if the consent of July 5, 2021 settling the dispute was set aside. That application, dated October 27, 2021, had not been prosecuted. Pursuing dependent relief in a separate application was therefore premature and abusive of process.

p. 2
02

Whether the court could order accounting for monies received by the estate

Holding

The applicant, sued as administrator, should pursue separate proceedings against her co-administrator to enforce beneficial rights

Reasoning

The applicant was sued as an administrator, not individually. Any claim that a co-administrator received payments to the exclusion of beneficiaries must be raised in the appropriate forum; the court declined to grant disclosure and accounting orders in this application.

p. 2

Legal principles established

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  • Interim or execution-related orders dependent on setting aside a consent decree cannot be granted while the application to set aside that consent remains undecided

Court orders

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  1. 1.The application dated November 23, 2021 is struck out for being an abuse of the court process, premature and without merit
  2. 2.No costs granted in view of the demise of the Applicant

Authorities

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Legislation

  • Civil Procedure Actsections 1A, 1B, 3A
  • Civil Procedure RulesOrder 40 Rule 1
  • Land Actsection 152
  • Constitution of Kenyaarticles 40, 47
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 40 Rule 1 of the Civil Procedure Rules; section 152 of the Land Act; articles 40 and 47 of the Constitution

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, "Ali & 3 others v Ojowi & 2 others (Sued as legal representative of Dismas Osiri - Deceased) & another", Case Analysis (2023). Environment & Land Case 211 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19967/eng@2023-09-21

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