Gowi v Waweru & another (Environment & Land Miscellaneous Case E303 of 2024) [2025] KEELC 4939 (KLR)
The bottom line
#The High Court struck out a property injunction request because the applicant filed it without first opening a court suit, as arbitration rules require.
What this practically means
#Executive summary
#Key legal issues
#Whether an application under Section 7 of the Arbitration Act must be anchored on a suit
Yes; Rule 2 of the Arbitration Rules 1997 mandatorily requires that applications under Sections 6 and 7 be made by summons in the suit, and non-compliance renders the application fatally defective.
The court reproduced Section 7(1) of the Arbitration Act and Rule 2 of the Arbitration Rules 1997, and relied on the Court of Appeal decision in Scope Telematics, which held that Rule 2 is mandatory and that Article 159 does not cure procedural non-compliance. Since the applicant's Chamber Summons was not premised on any suit, the preliminary objection was upheld and the application struck out.
What constitutes a proper preliminary objection
A preliminary objection must be on a pure point of law, not blurred with factual details requiring proof.
The court adopted the classic statement of Law JA in Mukisa Biscuits that a preliminary objection consists of a point of law which, if argued as a preliminary point, may dispose of the suit, and Ojwang J's formulation in Oraro v Mbaja that an assertion bearing factual aspects calling for proof is not a true preliminary objection. The defect complained of here was purely legal.
Legal principles established
#- An application for an interim measure of protection under Section 7 of the Arbitration Act must be made by summons in a suit, per Rule 2 of the Arbitration Rules 1997, which is couched in mandatory terms
- Failure to comply with a mandatory statutory procedure cannot be cured by Article 159 of the Constitution (the overriding objective/technicality provision)
Court orders
#- 1.The preliminary objection dated 16th February 2025 is upheld
- 2.The application dated 20th December 2024 is struck out
- 3.Costs to the Respondents
- Jurisdiction invoked
- Section 7(1) of the Arbitration Act, 1995 (application for an interim measure of protection from the High Court before or during arbitral proceedings)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gowi v Waweru & another (Environment & Land Miscellaneous Case E303 of 2024) [2025] KEELC 4939 (KLR)", Case Analysis (2025). Not stated in the judgment (Chamber Summons dated 20th December 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4939/eng@2025-06-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.