Osman v Gulaam Enterprises Limited (Environment & Land Case E013 of 2023) [2024] KEELC 7323 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the defendant/applicant has met the threshold for the grant of the orders of review
Key legal issues
#Whether the defendant/applicant met the threshold for review under Order 45 Rule 1 of the Civil Procedure Rules
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
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.
Procedural status of the proceedings after referral to arbitration
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
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.
Legal principles established
#- 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
#- 1.The notice of motion dated 22nd February, 2024 is dismissed with costs to the plaintiff/respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
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
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
Costs
Dismissed with costs to the plaintiff/respondent
Quotable passages
#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.
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.
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.
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.
Issues in the judgment
#The name of the plaintiff/respondent is never stated in the judgment; the party is referred to only as 'plaintiff/respondent'
The case number and station are not stated in the judgment
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
The plaintiff is inconsistently described as 'plaintifi/ applicant' in one passage when opposing the application
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.