Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in judgment· [2021] KEELC 1794 (KLR)

Tabitha Nduta Nguru & another v Ganza Limited & 2 others [2021] KEELC 1794 (KLR)

Environment and Land Court
24 September 2021
LGL. GACHERU
1,983 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled that if you want a dispute sent to arbitration, you must raise it when you first appear in the case—not two years later.

What this practically means

#

Executive summary

#
The Plaintiffs sued by a Plaint dated 13th February 2018 seeking specific performance, a permanent injunction and general damages for breach of contract arising from agreements for sale dated 10th March 2014 and 6th May 2014, together with an interlocutory injunction application to stop an imminent statutory sale. Before the injunction application was heard, the 1st Defendant/Objector filed a Notice of Preliminary Objection dated 3rd March 2020 invoking Clause 17.4 of the agreements, contending that the disputes were caught by an arbitration clause, that Section 6 of the Arbitration Act bound the parties, and that the court therefore lacked jurisdiction. The 1st Defendant relied on National Bank of Kenya v Pipeplastic Samkolit and Article 159(2) of the Constitution, urging that the parties' contractual choice of arbitration should be honoured. The Plaintiffs opposed, arguing the objection was filed out of time under Section 6 of the Arbitration Act, relying on Charles Njogu Lofty v Bedovin Enterprises, Mt. Kenya University v Step Holding (K) Ltd and Diocese of Marsabit Registered Trustees, and that no privity of contract existed with the 2nd and 3rd Defendants. The court framed the issue as whether the preliminary objection was merited. Applying the Mukisa Biscuit test, it accepted that a challenge to jurisdiction is a pure point of law, but applying Section 6(1), held that the objection, filed nearly two years after entry of appearance and after filing a Replying Affidavit and written submissions, was time-barred and amounted to an acknowledgment of the court's jurisdiction. Relying on the Court of Appeal's decision in Mt. Kenya University, the court dismissed the preliminary objection with costs to the Plaintiffs.

Key legal issues

#
01

Whether the objection qualified as a proper preliminary objection

Holding

Yes, to the extent it raised a pure question of the court's jurisdiction, which does not require ascertainment of facts

Reasoning

The court applied the Mukisa Biscuit test: a preliminary objection is a pure point of law argued on the assumption that the facts pleaded are correct. Jurisdiction is a point of law that may be raised summarily.

p. 2
02

Whether the preliminary objection based on the arbitration clause was merited

Holding

No; the objection was filed almost two years after entry of appearance and after filing pleadings, contrary to Section 6(1) of the Arbitration Act

Reasoning

Section 6(1) requires an application for stay to be made not later than entry of appearance. The 1st Defendant appeared on 16th April 2018, filed a Replying Affidavit and written submissions, then raised the objection on 3rd March 2020, taking procedural steps that acknowledged the court's jurisdiction. The Court of Appeal's position in Mt. Kenya University was applied.

p. 3

Legal principles established

#
  • An application for stay and referral to arbitration under Section 6(1) of the Arbitration Act must be made not later than the time the party enters appearance, and no procedural step may be taken before it
  • A party that takes steps in the proceedings is deemed to have acknowledged the court's jurisdiction

Court orders

#
  1. 1.The Preliminary Objection dated 3rd March 2020 by the 1st Defendant/Objector is dismissed
  2. 2.Costs of the Preliminary Objection to the Plaintiff/Respondent
Jurisdiction invoked
Original civil suit jurisdiction; application of Section 6(1) of the Arbitration Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Tabitha Nduta Nguru & another v Ganza Limited & 2 others [2021] KEELC 1794 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1794/eng@2021-09-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.