Gurvir Bhabra & another v John Malogo Ndiritu [2021] KEELC 817 (KLR)
The bottom line
#Kenya's Environment and Land Court can grant urgent interim protection under the Arbitration Act in land disputes, and ex parte transfer orders made without a hearing can be reviewed.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Environment and Land Court to entertain section 7 Arbitration Act applications
The ELC has jurisdiction; the reference to the High Court in section 7 of the Arbitration Act is read to include the ELC for land disputes.
The Arbitration Act was enacted before the Constitution of 2010, when the High Court had unlimited original jurisdiction over all civil disputes including land matters. Article 162(2)(b) and section 13 of the ELC Act confer exclusive jurisdiction over use, occupation and title to land on the ELC. Section 7 of the Sixth Schedule requires pre-2010 laws to be construed with alterations necessary for conformity with the Constitution, so the ELC is read into section 7 of the Arbitration Act.
Whether the suo motto transfer order of 7th September 2021 was an error apparent on the face of the record warranting review
Yes; the Magistrate's Court lacks jurisdiction over section 7 Arbitration Act applications in land matters, and the order was made ex parte without hearing the Applicants, so it was reviewed.
The learned judge transferred the application suo motto without affording the Applicants an opportunity to be heard, contrary to the import of section 7 of the Arbitration Act which confers jurisdiction on the High Court and courts of equal status. Applying National Bank of Kenya v Ndungu Njau, the error was self-evident and discernible without elaborate argument, hence reviewable.
Legal principles established
#- Section 7 of the Arbitration Act, 1995, which confers jurisdiction on the High Court to grant interim measures of protection, must, by virtue of Section 7 of the Sixth Schedule to the Constitution, be read as including the Environment and Land Court in respect of environment and land disputes.
- A party to arbitral proceedings in an environment and land dispute may access the Environment and Land Court for interim protection under section 7 of the Arbitration Act.
- An order transferring a section 7 Arbitration Act application to the Magistrate's Court, made ex parte and in error, constitutes an error apparent on the face of the record meriting review.
Court orders
#- 1.The Notice of Motion Application dated 14th September 2021 is allowed
- 2.The orders made on 7th September 2021 transferring the Application dated 1st September 2021 and the suit to the Magistrate's Court are reviewed/set aside
- 3.The Notice of Motion Application dated 1st September 2021 shall now be heard on its merits
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution, 2010; Section 13 of the Environment and Land Court Act, 2011; Section 7 of the Arbitration Act, 1995 as read with Section 7 of the Sixth Schedule to the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gurvir Bhabra & another v John Malogo Ndiritu [2021] KEELC 817 (KLR)", Case Analysis (2021). Not stated in the judgment (Notice of Motion dated 14th September 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/817/eng@2021-11-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.