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ELCDismissedNot stated in the judgment

Osman v Gulaam Enterprises Limited (Environment & Land Case E013 of 2023) [2024] KEELC 7323 (KLR)

Environment and Land Court
5 November 2024
4,213 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court dismissed Gulaam Enterprises' attempt to overturn rent-collection orders, confirming that delayed review applications without new evidence will fail.

What this practically means

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Executive summary

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The defendant, Gulaam Enterprises Limited, moved the court by notice of motion dated 22nd February 2024 seeking review and setting aside of two orders: the order of 24th January 2024 staying proceedings and referring the dispute to arbitration under clause 13 of the sale agreement dated 1st October 2014, and the order of 13th July 2023 directing appointment of a real estate agent to collect and account for rent over Narok Township Plot Nos. 60, 61 and 62 Block 4. The defendant sought instead to collect the rent itself, citing a KRA demand of KShs 12,484,460.71 dated 12th February 2024 and its inability to access rental income from tenants Naivas Limited and Kenya Power and Lighting Limited. The plaintiff opposed, arguing the court lacked jurisdiction under Section 10 of the Arbitration Act once the matter was referred to arbitration, that an arbitrator (Mr. Kenneth Wyne Mutuma) had already been appointed, that the KRA demand was not new evidence, and that the application was an appeal camouflaged as review, filed after substantial delay. The court framed a single issue: whether the defendant met the threshold for review under Order 45 Rule 1. It held there was no new information or sufficient cause - the defendant knew of the tax obligations at the time of the 13th July 2023 ruling - that the seven-month delay was unreasonable, and that the defendant had not come to court with clean hands having failed to respond to the plaintiff's proposed estate agents. The notice of motion was dismissed with costs to the plaintiff.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the defendant/applicant has met the threshold for the grant of the orders of review

Key legal issues

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01

Whether the defendant/applicant met the threshold for review under Order 45 Rule 1 of the Civil Procedure Rules

Holding

The application failed: no new and important matter or sufficient cause existed, the KRA demand was not new evidence, and the application was brought after unreasonable delay of seven months

Reasoning

The court found the defendant knew of tax obligations over the suit properties at the time of the 13th July 2023 ruling, so the KRA letter of 12th February 2024 was not new matter. The KRA demand post-dated the ruling but the underlying tax obligation was known. The defendant also failed to respond to the plaintiff's proposal of estate agents, undermining its claim that parties could not agree. The seven-month delay was unexplained. An arbitrator had already been appointed and proceedings were ongoing.

p. 7
02

Procedural status of the proceedings after referral to arbitration

Holding

The court noted the proceedings had been stayed and referred to arbitration, and that for the application to succeed the court would first have to stay its own orders of 24th January 2024, which prayer was spent

Reasoning

The court observed that the referral to arbitration meant the court could not deal with the substance of the matter without first staying the orders of 24th January 2024. That prayer had been sought ex-parte and not granted, and was now spent. The court also noted Section 7(1) of the Arbitration Act permits interim measures from the High Court and Rule 2 of the Arbitration Rules requires such applications by summons in the suit, but did not ultimately rest its decision on jurisdiction.

p. 6

Legal principles established

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  • Review is restricted to discovery of new and important matter, error apparent on the face of the record, or any other sufficient reason, and must be made without unreasonable delay
  • An applicant for review must come to court with clean hands and demonstrate its own effort where it alleges non-cooperation by the other party

Court orders

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  1. 1.The notice of motion dated 22nd February, 2024 is dismissed with costs to the plaintiff/respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; Order 45 Rule 1 and Order 51 Rules 1 & 3 of the Civil Procedure Rules

Relief refused

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Review, variation and/or setting aside of the order of 24th January, 2024 staying proceedings and referring the dispute to arbitration

The prayer was spent as it was only sought at the ex-parte stage and not granted

p. 6

Review, variation and/or setting aside of the order dated 13th July, 2023 requiring appointment of a real estate agent to collect rent

No new and important matter or sufficient cause; application made after unreasonable delay of seven months; applicant did not come with clean hands

p. 7

Order that the defendant/applicant collect rent over Narok Township Plot Nos. 60, 61 and 62 Block 4 pending arbitration

The application lacked merit as a whole and was dismissed

p. 7

Costs

Dismissed with costs to the plaintiff/respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Certainly, there is no new information and suficient cause to persuade this court to set aside its orders issued on 13th July, 2023.
p. 7Review threshold - no sufficient cause
From the above, the notice of motion dated 22nd February, 2024 lacks merit and it is hereby dismissed with costs to the plaintifi/respondent. Orders accordingly.
p. 7Final orders - dismissal with costs
This court is in doubt whether the defendant/applicant has indeed come to court with clean hands for the reason that for it to claim that the parties are unable to agree on an estate agent to collect the rent, there was also need to show efiort on its end which there is none.
p. 7Clean hands doctrine
It follows that for the instant application to succeed, this court is required to first stay the orders issued on 24th January, 2024 before dealing with any other issue.
p. 6Effect of referral to arbitration

Issues in the judgment

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material

The name of the plaintiff/respondent is never stated in the judgment; the party is referred to only as 'plaintiff/respondent'

minor

The case number and station are not stated in the judgment

minor

The judgment contains an apparent typographical error in the date of a subsequent court proceeding ('On 21st September, 2024') in a passage describing events following 25th July, 2023

minor

The plaintiff is inconsistently described as 'plaintifi/ applicant' in one passage when opposing the application

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, "Osman v Gulaam Enterprises Limited (Environment & Land Case E013 of 2023) [2024] KEELC 7323 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7323/eng@2024-11-05

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