P.J Dave Flowers Limited & another v Limuru Hills Limited & 3 others; Equity Bank Kenya Limited (Interested Party) [2021] KEELC 3693 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed it can protect land pending arbitration, dismissing an objection that it lacked jurisdiction.
What this practically means
#Executive summary
#Key legal issues
#Whether the grounds raised constitute a proper preliminary objection
Only the jurisdictional limb was a proper preliminary objection; the limb on want of reasonable cause of action required probing of evidence and was not a pure point of law; the third limb was spent.
Relying on Mukisa Biscuits and subsequent authorities, the Court held that a preliminary objection must raise a pure point of law on assumed pleaded facts. The jurisdictional ground met this test since the Court need only look at the law. The second limb on cause of action would require adducing evidence, and the third limb had been conceded as spent in submissions.
Whether the Thika Environment and Land Court has territorial jurisdiction over the suit property
Yes - the suit properties L.R Numbers 4967/37 and 38 in Tigoni, Limuru are in Kiambu County, over which the ELC Thika has territorial jurisdiction.
The Court found the ELC is a court of equal status to the High Court with original and unlimited jurisdiction over land matters countrywide, and its Thika registry extends to Kiambu County where the suit property is located. Territorial jurisdiction was thus properly clothed notwithstanding the arbitration clause.
Whether the Court has jurisdiction under Section 7 of the Arbitration Act to grant interim relief pending arbitration notwithstanding the arbitration agreement
Yes - Section 7 of the Arbitration Act empowers the Court to grant interim measures of protection before or during arbitral proceedings, so the application for temporary injunction pending arbitration is properly before the Court.
Applying Section 7(1) of the Arbitration Act and the Safaricom and Elite Earthmovers authorities, the Court held that a court may issue interim measures of protection in support of the arbitral process without encroaching on the tribunal's mandate. The existence of an arbitration agreement does not oust the Court's jurisdiction to issue interim measures; the merits of the application would be determined at the substantive hearing.
Legal principles established
#- The Environment and Land Court has jurisdiction to hear and determine applications seeking interim measures of protection pending arbitration where the suit property falls within its territorial jurisdiction.
- A preliminary objection must raise a pure point of law and cannot be raised where facts must be ascertained.
Court orders
#- 1.The Notice of Preliminary Objection dated 16th May 2019 is dismissed entirely with costs to the Plaintiff/Respondent
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, read with Sections 12 and 15 of the Civil Procedure Act; Section 7 of the Arbitration Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "P.J Dave Flowers Limited & another v Limuru Hills Limited & 3 others; Equity Bank Kenya Limited (Interested Party) [2021] KEELC 3693 (KLR)", Case Analysis (2021). Not stated in judgment (arising from Notice of Motion Application dated 11th April 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3693/eng@2021-04-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.