Dhanji & 3 others v Dhanji; Borkhataria (Applicant) (Enviromental and Land Originating Summons 203 of 2013) [2025] KEELC 3920 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out an application because a Tanzanian estate grant was never resealed by Kenya's High Court, meaning it had no legal force here.
What this practically means
#Executive summary
#Key legal issues
#Competence of the Motion for failure to disclose specific sub-rules relied on
The Motion is not incompetent; failure to cite specific sub-rules or even citing wrong provisions does not invalidate an application.
Order 51 Rule 1 provides that failure to state the provision relied on does not warrant dismissal, and an application cannot be defeated for want of form where substance is unaffected. The court relied on the Supreme Court's decision in Hermanus Phillipus Steyn to hold that procedural provisions should not be interpreted as cast in stone.
Effect of relying solely on Grounds of Opposition
Facts deponed in the Applicant's affidavit stand uncontroverted since Grounds of Opposition raise only issues of law.
Following Daniel Kibet Mutai vs Attorney General, affidavits are sworn evidence on a higher pedestal than Grounds of Opposition. Allegations of contested facts and denial of post-judgment negotiations were disregarded because they were raised only in the Grounds of Opposition without a replying affidavit.
Whether substitution of the deceased party is required at post-judgment stage
Substitution is not mandatory at execution stage, but a party electing to substitute must prove legal representative status; rights under a decree devolve to the estate.
Order 24 Rule 10 excludes execution proceedings from rules 3, 4 and 7 on substitution. Following Agnes Wanjiku Wang'ondu and Mueni Kiamba, the court held decree rights do not abate on death but devolve on the estate. However, where substitution is elected, the applicant must demonstrate requisite legal authority under the Law of Succession Act.
Efficacy of the Tanzanian grant and locus standi of the Applicant
The foreign grant had no legal effect in Kenya absent resealing, so the Applicant lacked standing; the resealed grant annexed to submissions was disregarded as inadmissible.
Section 77(1) of the Law of Succession Act requires a foreign grant to be resealed by the High Court to have force in Kenya. At filing, the Applicant conceded the grant was not resealed. Counsel's later assertion of resealing, evidenced only in submissions, could not aid him since submissions are not evidence, per Daniel Torotich Arap Moi.
Legal principles established
#- A foreign grant of probate or administration has no legal effect in Kenya until resealed by the High Court under Section 77(1) of the Law of Succession Act.
- Submissions are not pleadings and cannot take the place of evidence; documents supporting a case must be introduced through affidavit.
- It is not mandatory to substitute a deceased decree holder or judgment debtor at the execution stage, as Order 24 Rule 10 excludes execution proceedings from the substitution rules.
- Failure to cite the specific sub-rule under which an application is brought does not render the application incompetent.
- Grounds of Opposition address only issues of law and do not controvert sworn facts in an affidavit.
Court orders
#- 1.The Notice of Motion dated 17th October, 2023 is struck out with costs
- Jurisdiction invoked
- Section 19 of the Environment and Land Court Act, Sections 1A, 1B and 3A of the Civil Procedure Act, and Orders 9 and 24 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dhanji & 3 others v Dhanji; Borkhataria (Applicant) (Enviromental and Land Originating Summons 203 of 2013) [2025] KEELC 3920 (KLR)", Case Analysis (2025). Notice of Motion dated 17th October, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3920/eng@2025-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.