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ELCDismissedPetition dated 21st January 2021 (ELC)· [2022] KEELC 503 (KLR)

Legend Contsruction Company Limited v Kenya National Highways Authority & another [2022] KEELC 503 (KLR)

Environment and Land Court
31 March 2022
2,838 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed a contractor's bid to overturn an arbitration award via constitutional petition, confirming strict 3-month challenge deadlines apply.

What this practically means

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Executive summary

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The 1st Respondent raised a preliminary objection to a Petition dated 21st January 2021 in which the Petitioner, a contractor engaged to maintain the Lolgorian–Kehancha (C13) road under contract KeNHA/RD/M/1279/2013, sought to challenge a final arbitral award issued on 19th October 2017 by way of a constitutional petition. The objection argued that the Petition circumvented section 35 of the Arbitration Act, was filed out of the 3-month limit in section 35(3), was fatally defective and an abuse of process. The court, as directed, heard the objection on written submissions; the Petitioner and 2nd Respondent did not file submissions. Adopting the Hassan Ali Joho formulation of a preliminary objection, the court found the objection raised a pure point of law. Examining section 13 of the Environment and Land Court Act, the court held that the dispute arose from a commercial contract unrelated to land or environment, and that constitutional questions could not be entertained where the underlying transaction fell outside the court's jurisdiction. The court further held that it lacked power to transfer the Petition to a competent court since a suit filed without jurisdiction is a nullity. On section 35, the court found the Petition was filed some three years after the award, far outside the 3-month window, which the Act does not permit to be extended, the requirement being consistent with expedition and finality in arbitration. The Petition was accordingly dismissed with costs to the 1st Respondent.

Key legal issues

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01

Whether the preliminary objection was proper

Holding

It was proper as it raised a pure point of law on jurisdiction and competence of the Petition

Reasoning

Adopting the classic Mukisa Biscuits and Hassan Ali Joho definitions, the court found the objection raised a pure point of law concerning the court's jurisdiction and the competence of the Petition under section 35 of the Arbitration Act, requiring no ascertainment of facts or exercise of discretion.

p. 3
02

Whether the ELC had jurisdiction over the Petition

Holding

The court lacked jurisdiction; the dispute arose from a commercial road-maintenance contract unrelated to land or environment

Reasoning

The court traced its jurisdiction to Article 162(2)(b) and section 13 of the ELC Act. The Petition concerned a commercial contract for road maintenance from Lolgorian to Kehancha (C13) and a challenge to an arbitral award, none of which falls within section 13's enumerated disputes. Even constitutional questions could not confer jurisdiction where the underlying transaction is outside the court's mandate.

p. 4
03

Whether the Petition offended section 35 of the Arbitration Act

Holding

Yes; the Petition was fatally defective as it was brought roughly three years after the award, contrary to the 3-month limit in section 35(3), and via a constitutional petition rather than a setting-aside application

Reasoning

Section 35 permits recourse to the High Court only by an application to set aside an award within 3 months of receipt. The award issued on 19th October 2017 and the Petition was filed in 2021. The Petitioner failed to disclose when the award was communicated to it, and the Act makes no provision for extension of that period, favouring expedition and finality in arbitration.

p. 4

Legal principles established

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  • A constitutional petition cannot be used to circumvent the statutory mechanism for challenging an arbitral award under section 35 of the Arbitration Act
  • The ELC lacks jurisdiction over disputes founded on commercial contracts unrelated to environment and land, even where constitutional questions are raised
  • A court without jurisdiction has no power to transfer a suit to a competent court

Court orders

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  1. 1.The Petition dated 21st January 2021 is dismissed
  2. 2.Costs of the Petition awarded to the 1st Respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)(b)
  • Constitution of Kenya, 2010Articles 42, 69 and 70
  • Environment and Land Court Act, 2011sections 4 and 13
  • Arbitration Act, 1995section 35 (including section 35(3))

Cases cited (15)

  • Mukisa Biscuits Manufacturing Co. Ltd vs West End Distributors Ltd
    (1969) EA 986
  • Quick Enterprises Ltd vs Kenya Railways Corporation
    Kisumu HCC No. 22 of 1999
  • Avtar Singh Bhamra & Another vs Oriental Commercial Bank
    Kisumu HCCC No. 53 of 2004
  • Oraro vs Mbaja
    (2005) 1 KLR 141
  • Joseph Muthee Kamau & Another vs David Mwangi Gichure & Another
    (2013) eKLR
  • Albert Chaurembo Muba & 7 others vs Maurice Munyao & 148 Others
    (2019) eKLR
  • Phoenix of E.A. Assurance Company Limited vs M. Thiga t/a Newspaper Service
    (2019) eKLR
  • Thomas Mutuku Kasue vs Housing Finance Company Ltd and Legacy Auctioneers
    ELC Case No. 40 of 2020
  • Boniface Waweru Mbiyu vs Mary Njeri & Another
  • Gabriel Mutava & 2 Others vs Managing Director Kenya Ports Authority & Another
    (2016) eKLR
  • Jackson Kabingu Gichohi vs Attorney General
    (2020) eKLR
  • Hassan Ali Joho & Another V Suleiman Said Shahbal & 2 Others
    Petition No. 10 of 2013, [2014] eKLR
  • S. K. Macharia, & another v. Kenya Commercial Bank limited & 2 others
    [2012] eKLR
  • Ezra Odondi Opar V Insurance Company of East Africa Limited Ksc
    Civil Appeal No. 98 of 2016 [2020] eKLR
  • Nyutu Agrovet Limited vs. Airtel Networks Kenya Limited and another
    SC Petition No. 12 of 2015
Jurisdiction invoked
Article 162(2)(b) of the Constitution and sections 4 and 13 of the Environment and Land Court Act, 2011

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, "Legend Contsruction Company Limited v Kenya National Highways Authority & another [2022] KEELC 503 (KLR)", Case Analysis (2022). Petition dated 21st January 2021 (ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/503/eng@2022-03-31

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