Mwakisha & 2 others v Maghanga & another
The bottom line
#A Kenyan court refused to send a land dispute to arbitration because one defendant never agreed to arbitrate, so the whole case stays in court.
What this practically means
#Executive summary
#Key legal issues
#Definition and proper scope of a preliminary objection
A preliminary objection must raise a pure point of law on the assumption that all facts pleaded by the other side are correct; it cannot be raised where facts must be ascertained or judicial discretion exercised
The court adopted the classic Mukisa Biscuits definition and the restatement in Attorney General & Another v Andrew Mwaura Githinji, confirming that a preliminary objection is a pure point of law and that improper use of the device increases costs and confuses issues. It nonetheless found the objection properly before the court since it was raised before final conclusion of the case.
Timing requirement under Section 6(1) of the Arbitration Act for a stay of proceedings pending arbitration
An application for stay and referral to arbitration must be made not later than the time of entering appearance or otherwise acknowledging the claim; filing a defence or taking steps in the proceedings constitutes acknowledgement
Relying on Eunice Soko Mlagui and Bedouin Enterprises Ltd v Charles Njogu Lofty, the court held that the latest permissible time for a stay application is entry of appearance, and that the object of Section 6(1) is to ensure applications are made at the earliest stage. Filing a defence amounts to acknowledgement of the claim and submission to the court's jurisdiction.
Whether the dispute could be referred to arbitration when the 2nd Defendant is not a party to the arbitration agreement
The claim against the 2nd Defendant could not be referred to arbitration; because arbitration would cover only part of the dispute, the court declined to stay the entire suit
Arbitration is founded on consent, and the 2nd Defendant, whose 2005 agreement with the 1st Defendant contains no arbitration clause, is not bound by the arbitral agreement. Applying the Emden & Gills grounds and Eunice Soko Mlagui, the court found that referring only part of the interconnected disputes to arbitration would result in multiplicity of proceedings and possible inconsistent findings, so the preliminary objection failed.
Legal principles established
#- Arbitration depends on the consent of the parties; a person who is not a party to the arbitration agreement cannot be compelled to arbitrate
- Where a third party not bound by the arbitration clause is involved, the court may refuse to stay proceedings because arbitration would be appropriate for only part of the dispute
Court orders
#- 1.The 1st Defendant's preliminary objection is dismissed
- 2.Costs of the preliminary objection shall abide the outcome of the main suit
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to land (Article 162(2)(b) of the Constitution, as implied by the court's mandate); ruling on a preliminary objection under Section 6 of the Arbitration Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwakisha & 2 others v Maghanga & another", Case Analysis (2023). Environment & Land Case 303 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18134/eng@2023-06-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.