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ELCDismissedOriginating Summons dated 17th December 2021· [2022] KEELC 3342 (KLR)

Premji & another v Virunga Limited & another (Miscellaneous Civil Application E237 of 2021) [2022] KEELC 3342 (KLR)

Environment and Land Court
23 May 2022
EWE.K Wabwoto
2,898 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court can help an arbitration gather evidence only if the arbitrator first approves the request - without that approval, the application fails.

What this practically means

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Executive summary

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The applicants filed an originating summons dated 17th December 2021 under section 28 of the Arbitration Act seeking orders that the director/shareholder of the 1st respondent and advocate Lalji Ragwani be summoned to give evidence before an arbitral tribunal, and a stay of tribunal proceedings pending determination. The respondents opposed through a preliminary objection and replying affidavit, contending that section 28 refers to the High Court and not the Environment and Land Court, that no tribunal approval had been granted as required, and that the application was res judicata since the Tribunal had already ruled on the summons question in its ruling of 24th November 2021. The court first addressed jurisdiction, holding that under Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act it has jurisdiction over land-related disputes; pre-2010 statutory references to the 'High Court' are construed, via paragraph 7 of the Sixth Schedule, to include the ELC, which is a superior court equal in status to the High Court. On the merits, the court held that section 28 assistance requires the Arbitral Tribunal's prior approval, which was absent because the Tribunal had dismissed the request; relevance and necessity of evidence are matters for the Tribunal, applying Squishy Drinks Limited v Kevian Kenya Limited. The application was dismissed with each party bearing their own costs.

Key legal issues

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01

Jurisdiction of the ELC over a section 28 Arbitration Act application

Holding

The ELC has jurisdiction; references to the 'High Court' in pre-2010 statutes are construed per paragraph 7 of the Sixth Schedule to conform to the Constitution

Reasoning

Article 162(2)(b) and section 13 of the ELC Act confer broad jurisdiction over land disputes. The Arbitration Act predates the 2010 Constitution when only the High Court existed; the Sixth Schedule transitional provision requires such laws to be construed with alterations necessary for constitutional conformity. The ELC is a superior court equal in status to the High Court and constitutionally obliged to hear land disputes, failing which access to justice would be abridged.

p. 5
02

Whether court assistance under section 28 can be granted without Tribunal approval

Holding

No; approval of the Arbitral Tribunal is mandatory and relevance of evidence is for the Tribunal, not the court

Reasoning

Section 28 permits the tribunal, or a party with its approval, to request court assistance in taking evidence. The Tribunal had already dismissed the applicants' request, so no approval existed. It is the Tribunal which hears and determines the matter and must decide the necessity and relevance of evidence. The court therefore could not entertain the request.

p. 6

Legal principles established

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  • The Environment and Land Court is a superior court of equal status with the High Court and is imbued with all its powers over land and environment disputes wherever they arise
  • Under section 28 of the Arbitration Act, tribunal approval is a mandatory precondition to a court request for assistance in taking evidence; relevance of evidence is for the Tribunal

Court orders

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  1. 1.The application dated 17th December 2021 is dismissed
  2. 2.Each party to bear their own costs of the proceedings

Authorities

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Legislation

  • Arbitration ActSection 28
  • Constitution of Kenya 2010Article 162
  • Constitution of Kenya 2010Article 165(5)
  • Constitution of Kenya 2010Article 159(1)
  • Constitution of Kenya 2010Paragraph 7 of the Sixth Schedule
  • Environment and Land Court ActSection 13
  • Evidence Act Cap 80Section 125

Cases cited (2)

  • Synergy Holdings v Cape Holdings Limited
    (2019) eKLR
  • Squishy Drinks Limited v Kevian Kenya Limited
    (2021) eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court 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, "Premji & another v Virunga Limited & another (Miscellaneous Civil Application E237 of 2021) [2022] KEELC 3342 (KLR)", Case Analysis (2022). Originating Summons dated 17th December 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3342/eng@2022-05-23

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