Carling (Suing as administrator of the Estate of Mona Ingegard Bjorklund) v Apoko alias Ringtone (Land Case E354 of 2021) [2025] KEELC 8505 (KLR)
The bottom line
#Kenya's Environment and Land Court reopened a land case, holding that a grant still valid cannot be challenged informally and that administrative mistakes justify setting aside ex parte orders.
What this practically means
#Executive summary
#Key legal issues
#Locus standi of an administrator whose grant is under challenge
The Plaintiff, holding a resealed foreign grant that has not been revoked, annulled or suspended, has the requisite locus standi to institute and maintain the suit and application.
Only a duly appointed personal representative with a valid grant may sue on behalf of a deceased's estate. The Plaintiff relied on a foreign grant resealed in Kenya on 21st September 2021. No order revoking, annulling or suspending that grant was placed before the Court. Pendency of revocation proceedings in the Succession Court does not extinguish or suspend a grant, and a challenge raised by affidavit rather than a formal preliminary objection cannot displace the presumption of validity of a subsisting grant.
Sufficient cause for setting aside the ex parte ruling and stay orders of 30th September 2022
Sufficient cause was demonstrated: the Plaintiff's filed Replying Affidavit and submissions were not considered due to an inadvertent administrative lapse, and maintaining the stay risked substantial injustice given the alleged dealings on the suit property.
The discretion to set aside ex parte orders is fact-sensitive and aimed at doing justice. The Plaintiff's material existed on the e-filing portal but was not traced, amounting to an excusable mistake. The two-year delay was explained by change of advocates and late discovery of transfers on the suit property. The alleged fraudulent transfer and demolition of the house during the stay altered the substratum of the suit, so prejudice weighed more heavily against maintaining the stay, and any prejudice to the Respondent could be mitigated by costs and directions.
Legal principles established
#- A grant of representation remains valid and operative until set aside by the Succession Court; the mere pendency of revocation proceedings does not extinguish or suspend it.
- The discretion to set aside ex parte orders exists to avoid injustice from accident, inadvertence or excusable mistake, and not to reward deliberate obstruction.
Court orders
#- 1.The Ruling and Stay Orders issued on 30th September 2022 are set aside
- 2.The proceedings in ELC Case No. E354 of 2021 are reopened
- 3.The Plaintiff/Applicant is granted leave to amend the Plaint in terms of the Draft Amended Plaint annexed to the Application
- 4.The Plaintiff shall file and serve the Amended Plaint within fourteen (14) days from the date hereof
- 5.The Defendant and any newly joined parties shall file and serve their Statements of Defence within twenty-one (21) days of service
- 6.As a condition for the setting aside, the Applicant shall pay to the Defendant costs thrown away assessed at KShs. 40,000/- within twenty-one (21) days
- 7.Upon compliance with Order (e), the Plaintiff shall fix the matter for directions under Order 11 within thirty (30) days, failing which the leave granted and the orders shall stand vacated automatically
- 8.In default of compliance with any of Orders (c), (d), or (e) within the stipulated timelines, the present application shall stand dismissed and all consequential orders vacated
- Jurisdiction invoked
- Sections 3 & 3A of the Civil Procedure Act, Order 51 Rule 15 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Carling (Suing as administrator of the Estate of Mona Ingegard Bjorklund) v Apoko alias Ringtone (Land Case E354 of 2021) [2025] KEELC 8505 (KLR)", Case Analysis (2025). ELC Case No. E354 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8505/eng@2025-12-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.