Revine Park Limited v Gaetano Ruffo (Environment & Land Case 372 of 2016) (Environment and Land) [2019] KEELC 2739 (KLR)
The bottom line
#A Kenyan court confirmed that registering a caveat on land does not stop a party from taking a dispute to arbitration as agreed in the contract.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC over the Originating Summons
The court had jurisdiction; the dispute arose from agreements for sale of land within section 13(2) of the ELC Act
The dispute arose from agreements for sale of land and concerned the parties' rights under those agreements. Section 13(2) of the ELC Act confers jurisdiction over disputes relating to contracts and instruments granting enforceable interests in land. Order 37 rule 3 permits a vendor or purchaser to take out an originating summons on any question arising out of or connected with the contract of sale. Whether the reliefs sought were available was a merits question, distinct from jurisdiction.
Whether registration of a caveat and the caveat suit disentitled the defendant from invoking the arbitration clause
No; the arbitration clause is an independent agreement and neither act barred reference to arbitration
The arbitration clause conditioned reference to arbitration only on an attempted amicable resolution. Neither registration of a caveat nor a suit to retain it was an impediment provided for in the clause. The defendant sought extension of the caveat pending arbitration, showing no intention to forego arbitral rights; the caveat was lifted and he derived no benefit from it, defeating the approbation and reprobation argument.
Whether the appointment of the sole arbitrator should be set aside
The challenge was not properly before the court; competence-competence under section 17(1) of the Arbitration Act requires such objections to go to the tribunal; in any event the appointment was valid
The manner of appointment goes to the arbitrator's jurisdiction, and under section 17(1) of the Arbitration Act the tribunal is competent to rule on its own jurisdiction. On the merits, the record showed negotiations had taken place, the plaintiff was given an opportunity to participate in the appointment, and letters to the Chartered Institute of Arbitrators were copied to the plaintiff's advocates.
Whether the defendant's conduct contrived an unjust enrichment claim precluding arbitration
That is a matter for the arbitral tribunal and does not prevent reference to arbitration
The plaintiff alleged the defendant manipulated the transaction to manufacture a claim for interest. The court held this allegation does not impede arbitration because the agreement to arbitrate did not list it as an impediment; such objections belong before the tribunal.
Legal principles established
#- An arbitration clause is treated as an independent agreement; conduct outside the terms of the clause (such as registering a caveat or filing suit to retain it) does not bar a party from invoking arbitration
- Under the competence-competence principle, objections to an arbitrator's appointment and jurisdiction must be raised before the arbitral tribunal, not the court
- The ELC has jurisdiction under section 13(2) of the ELC Act over questions arising out of or connected with contracts for sale of land under Order 37 rule 3
Court orders
#- 1.The plaintiff's Originating Summons dated 14th March, 2016 is dismissed
- 2.Costs of the application awarded to the defendant
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, 2011; Order 37 rule 3 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Revine Park Limited v Gaetano Ruffo (Environment & Land Case 372 of 2016) (Environment and Land) [2019] KEELC 2739 (KLR)", Case Analysis (2019). ELC Originating Summons dated 14th March, 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2739/eng@2019-06-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.