Elsek & Elsek Construction Limited, associated with Turkish billionaire Osman Erdinc Elsek, came to prominence through its pioneering approach to decent, affordable housing, particularly its use of prefabricated construction techniques combining fibre cement and galvanised steel.
Elsek & Elsek (K) Limited has scored a major courtroom victory in its long-running battle over a KSh150 million Kajiado property, after the High Court refused to let the dispute reopen through the back door.
Justice Josephine Mong’are dismissed Dr Benny Ben Otim’s bid to overturn Elsek’s settlement with KCB Bank Kenya Limited, finding no evidence of the fraud he alleged.
The ruling leaves the consent intact, while an earlier ELC judgement rejecting Otim’s ownership claim remains undisturbed.
Otim argued that the settlement was secretly negotiated without his knowledge, despite his claimed interest in the property.
He also alleged that the consent was fraudulent and unfairly locked him out of the proceedings.
But the judge found that Otim had failed to prove fraud or any other legal ground for overturning the settlement.
The court also found that he was attempting to revive an ownership dispute already settled by another court.
Property Fight
The dispute centres on L.R. No. Kajiado/Kisaju/7947, which Otim claimed as his beneficial property.
He told the court that the land was worth about KSh150 million and represented his primary asset.
He argued that Elsek had charged the property to KCB without paying him consideration.
Otim became an interested party in the commercial proceedings on February 4, 2016.
He later complained that he was excluded when Elsek and KCB negotiated their settlement.
The consent at the centre of his challenge was dated August 27, 2024. The parties subsequently presented it to court for adoption as an order.
Otim filed his challenge on August 21, 2025, seeking to have the consent set aside.
He also wanted the commercial case reopened and determined through a full hearing.
His argument rested partly on Article 50 of the Constitution, which guarantees the right to a fair hearing.
He maintained that he had effectively been condemned unheard.
Earlier Defeat
However, that argument faced a significant legal hurdle.
The ownership question had already been determined in separate proceedings before the Environment and Land Court.
The case, identified as KJD ELCC 833 of 2017, concerned Otim’s challenge to Elsek’s ownership of the property.
On May 16, 2023, the ELC dismissed Otim’s case and affirmed that he was not the owner of the property.
The court also found that he had no registrable interest in the land.
Importantly, no appeal had been filed against that judgement.
That history proved decisive in the High Court’s assessment of the later consent challenge.
Elsek argued that Otim was effectively trying to reopen the ownership dispute after losing before the ELC.
KCB made a similar argument, saying the ownership question had already been conclusively determined.
Justice Mong’are agreed with them.
The judge noted that the ELC judgement remained valid and binding because it had not been appealed.
Otim’s ownership claim could therefore not simply return through a challenge targeting the commercial settlement.
Consent Stands
The court then turned to Otim’s allegations that the consent was fraudulent, secretly executed and backdated.
Those were serious allegations, but the judge found little evidence supporting them.
Justice Mong’are stressed that allegations of fraud require strong proof.
According to the ruling, Otim provided no tangible evidence capable of establishing fraud, collusion or misapprehension of material facts.
The judge relied on established principles governing consent judgements.
A consent entered by parties is generally binding and cannot casually be withdrawn.
Courts may interfere where fraud, collusion, mistake or other recognised contractual grounds are proved.
That threshold was not met in this case.
The judge also rejected the suggestion that Otim’s absence from settlement negotiations automatically invalidated the agreement.
Elsek and KCB were the principal parties in the commercial dispute. They were therefore entitled to negotiate and settle their dispute.
Otim’s status as an interested party did not grant him the authority to veto the agreement between Elsek and KCB.
Costs Awarded
The court also found Otim’s fair-hearing argument weakened by his history in the litigation.
He had known about the proceedings and had actively participated in the broader dispute for years.
His lack of involvement in the final settlement therefore did not mean he had been denied every opportunity to be heard.
The judge ultimately concluded that the application was an attempt to bypass the earlier ELC judgement.
He described it as a “clear attempt to bypass” the unfavourable ownership decision by presenting the dispute as a challenge to the consent order.
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The High Court consequently dismissed Otim’s application.
He was also ordered to pay the costs of the application to both Elsek and KCB.
The ruling leaves the consent intact and closes another route through which the disputed property battle could have returned to court.
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