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ELCDismissedNot stated in judgment (arising from Notice of Motion Application dated 11th April 2019)· [2021] KEELC 3693 (KLR)

P.J Dave Flowers Limited & another v Limuru Hills Limited & 3 others; Equity Bank Kenya Limited (Interested Party) [2021] KEELC 3693 (KLR)

Environment and Land Court of Kenya
15 April 2021
3,383 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed it can protect land pending arbitration, dismissing an objection that it lacked jurisdiction.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Thika (L. Gacheru, J) determined a Notice of Preliminary Objection dated 16th May 2019 by the 1st-4th Defendants/Objectors against an application by the 1st and 2nd Applicants/Plaintiff seeking interim relief pending arbitration, premised on a Memorandum of Understanding dated 21st May 2015 containing a consultation and arbitration clause (Clause K). The objectors argued that the Thika High Court lacked territorial connection with the dispute, that the application was not founded on any suit, plaint or petition, and that it was frivolous given Equity Bank's chargee's interest (a limb conceded as spent). The Applicants, relying on Sections 12 and 15 of the Civil Procedure Act, Article 162(2)(b) of the Constitution and Section 13 of the ELC Act, maintained the suit property in Tigoni, Limuru falls within Kiambu County, and that Section 7 of the Arbitration Act empowers the Court to preserve the subject matter pending arbitration. Applying Mukisa Biscuits and related authorities, the Court held only the jurisdictional limb was a proper preliminary objection; the cause-of-action limb required ascertaining facts. It found it had territorial jurisdiction over the Kiambu property and, applying Section 7(1) of the Arbitration Act and the Safaricom and Elite Earthmovers decisions, jurisdiction to entertain applications for interim measures of protection pending arbitration, merits to be decided at the substantive hearing. The preliminary objection was dismissed entirely with costs to the Plaintiff/Respondent. The ruling was delivered virtually under COVID-19 directions.

Key legal issues

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01

Whether the grounds raised constitute a proper preliminary objection

Holding

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.

Reasoning

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.

p. 2
02

Whether the Thika Environment and Land Court has territorial jurisdiction over the suit property

Holding

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.

Reasoning

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.

p. 3
03

Whether the Court has jurisdiction under Section 7 of the Arbitration Act to grant interim relief pending arbitration notwithstanding the arbitration agreement

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The Notice of Preliminary Objection dated 16th May 2019 is dismissed entirely with costs to the Plaintiff/Respondent

Authorities

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Legislation

  • Civil Procedure ActSection 18
  • Civil Procedure ActSections 12 and 15
  • Constitution of Kenya, 2010Article 162(2)(b)
  • Environment and Land Court ActSection 13
  • Arbitration ActSection 7(1)
  • Arbitration ActSection 17
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (7)

  • Equity Bank Limited Vs Bruce Mutie Mutuku t/a Diani Tour Travel
    (2016) eKLR
  • Safaricom Limited Vs Ocean Beach Hotel Limited & 2 others
    (2010) eKLR
  • Mukisa Biscuits Manufacturing Co. Ltd Vs West End Distributors Ltd
    (1969) EA 696
  • Quick Enterprises Ltd Vs Kenya Railways Corporation
    Kisumu HCCC No.22 of 1999
  • Avtar Singh Bhamra & Another Vs Oriental Commercial Bank
    Kisumu HCCC No.53 of 2004
  • Elite Earthmovers Limited Vs Machakos County Government & another
    [2020] eKLR
  • Carzan Flowers (Kenya) Ltd & Others vs Tarsal Koos Minck B V & Others
    Nairobi (Milimani) HCCC No. 514 of 2009
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.