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ELCStruck OutNot stated in the judgment· [2022] KEELC 2916 (KLR)

Ndung'u v Rwaikamba Rwatha Trading Co Ltd & another (Environment & Land Case 78 of 2009) [2022] KEELC 2916 (KLR)

Environment and Land Court
16 June 2022
MOMogeni
2,326 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court threw out a late bid to send a 22-year land dispute to arbitration, because the application came years too late.

What this practically means

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Executive summary

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The applicant, administrator of the estate of the plaintiff in a land case pending for some 22 years, filed a Notice of Motion dated 14 January 2022 seeking referral of the dispute to arbitration by a single arbitrator or, failing agreement, three arbitrators, relying on Article 159 of the Constitution and the Civil Procedure Act. Before the motion was heard, the 2nd Respondent (Nairobi City County) raised a preliminary objection contending that the application breached Section 6(1) of the Arbitration Act, which requires an application for stay and referral to be made not later than the time of entering appearance. The 1st Respondent opposed on the ground that there was no arbitration agreement and noted the plaintiff had earlier declined court-annexed mediation. Mogeni J framed two issues: whether the application was fatally defective for being brought long after appearance was entered, and whether any dispute existed capable of referral to arbitration. Holding Section 6(1) mandatory, the court found that a party who fails to apply within the statutory window loses the right to seek stay and referral, and Article 159 cannot displace express procedural rules. Further, the materials disclosed no genuine dispute regarding the parties' rights and obligations under any agreement, as Section 6(1)(b) requires. Upholding the preliminary objection as raising a pure point of law, the court dismissed the Notice of Motion but ordered that its costs abide the outcome of the main suit.

Key legal issues

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01

Timeliness of application under Section 6(1) of the Arbitration Act

Holding

Application brought 13 years after appearance was incompetent; the statutory window had closed

Reasoning

Section 6(1) is couched in mandatory terms using the word 'shall'. A party must apply not later than when it enters appearance. Prevailing jurisprudence affirms that failure to comply with the timeline extinguishes the right to seek stay and referral. Article 159 cannot override express procedural requirements.

p. 4
02

Existence of a dispute capable of referral to arbitration

Holding

No evidence of any dispute between the parties regarding obligations and rights under any agreement was disclosed

Reasoning

Section 6(1)(b) requires an actual dispute with regard to matters agreed to be referred. The Court of Appeal in UAP Provincial Insurance requires the court to consider whether a genuine dispute exists. The materials filed by the applicant disclosed none, so referral would fail in any event.

p. 5

Legal principles established

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  • A party seeking stay and referral to arbitration must apply not later than the time of entering appearance; late applications are incompetent
  • There must be an actual dispute before a matter can be stayed and referred to arbitration

Court orders

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  1. 1.The Preliminary Objection dated 9/02/2022 is merited and upheld
  2. 2.The Notice of Motion dated 14/01/2022 fails/dismissed
  3. 3.Costs of the application to abide the outcome of the main suit

Authorities

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Legislation

  • Constitution of Kenya 2010Article 159
  • Constitution of Kenya 2010Articles 2(5) and 2(6)
  • Civil Procedure Act, Cap 21Sections 1A, 1B, 3A
  • Civil Procedure RulesOrders 46 and 51
  • Arbitration Act, 1995Section 6(1)

Cases cited (5)

  • Mukisa Biscuits Manufacturing Co. Ltd -vs- West End Distributors
    (1969) E.A. 696
  • Charles Njogu Lofty v Bedouim Enterprises Limited
    CA No 253 of 2003
  • Niaxons (K) Ltd v China Road & Bridges Corporation Kenya
    (2001) KLR 12
  • Eunice Soka Mlagui v Suresh Parmer & 4 others
    (2017) eKLR
  • UAP Provincial Insurance Company Limited v Michael John Beckett
    (2018) eKLR
Jurisdiction invoked
Article 159 of the Constitution; sections 1A, 1B, 3A of the Civil Procedure Act; Orders 46 and 51 of the Civil Procedure Rules

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, "Ndung'u v Rwaikamba Rwatha Trading Co Ltd & another (Environment & Land Case 78 of 2009) [2022] KEELC 2916 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2916/eng@2022-06-16

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