Jacob Omondi Nyambega & 5 others v Victoria Confort Inn Limited & 4 others [2017] KEELC 153 (KLR)
The bottom line
#A Kenyan court refused to send a land dispute to arbitration under KANU's constitution because the disagreement was about land ownership, not party elections.
What this practically means
#Executive summary
#Key legal issues
#Scope of the arbitral clause in the 2nd Defendant's constitution
The arbitral clause is limited to disputes arising out of or relating to the outcome or conduct of nominations or elections within the party, or matters connected therewith; the present land dispute falls outside it.
The clause as revised in 2012 directs disputes about nomination or election outcomes to the Elections Appeals Tribunal and other disputes to arbitration, but only those arising from nominations or elections. The claim here concerns alleged fraud in the registration of the 1st Defendant as proprietor of the suit land and seeks revocation of title and injunction, which is unrelated to party elections.
Whether all parties are bound by the arbitral clause
Only some Plaintiffs are branch officials of the 2nd Defendant; the 1st and 5th Defendants are not shown to be subject to the clause or to have consented to arbitration.
The 1st to 3rd Plaintiffs are described as branch officials of the 2nd Defendant, but the other Plaintiffs are tenants and representatives of tenants. The 1st and 5th Defendants filed no response, and nothing on record shows they are subject to the arbitral clause or consented to a reference. A dispute involving non-parties to the constitution cannot be confined to the party's internal organs.
Whether proceedings should be stayed and referred to arbitration
No stay or reference is warranted in the absence of the Plaintiffs' concurrence to arbitration.
Arbitration under the clause requires the dispute to be within its scope and, effectively, concurrence of the parties. The Plaintiffs vehemently objected to a reference, and the 1st and 5th Defendants opted not to participate. Consequently the court directed that the matter proceed to hearing in court, with the status quo on possession and use of the suit property maintained until the next hearing.
Legal principles established
#- An arbitral clause confined to disputes arising from nominations, elections or matters connected therewith does not capture land disputes between a party's members and third parties, and a matter cannot be referred to arbitration without the concurrence of all parties bound or consent of non-signatories.
Court orders
#- 1.The notice of motion dated 8th July 2016 is dismissed with costs.
- 2.Parties who have not filed replies and statements of defence to the notice of motion and suit filed through the documents dated 15th June 2016 to file and serve them within 14 days.
- 3.The party served to have corresponding leave to file a response in 14 days after service.
- 4.A hearing date for the notice of motion dated 15th June 2016 to be fixed.
- 5.The interim order on maintaining status quo on possession and use of the suit property is extended to the next hearing date.
- Jurisdiction invoked
- Environment and Land Court Act (original jurisdiction over disputes relating to land in Kisumu Municipality/Block 9/118)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jacob Omondi Nyambega & 5 others v Victoria Confort Inn Limited & 4 others [2017] KEELC 153 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/153/eng@2017-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.