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ELCStruck OutNot stated in the judgment text provided· [2025] KEELC 7490 (KLR)

Musekenya v Transmara Sugar Company Limited (Environment and Land Miscellaneous Case E008 of 2025) [2025] KEELC 7490 (KLR)

Environment and Land Court
3 November 2025
MMM.N. Mwanyale
1,523 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out a bid to enforce a Kshs 2.9 million arbitral award, ruling the sugarcane dispute belongs in the High Court, not a land court.

What this practically means

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Executive summary

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The Applicant, Simion Olemoi Ngatuny Musekenya, applied by notice of motion dated 16th June 2025 seeking recognition and enforcement of an arbitral award of Kshs 2,893,440 arising from a dispute with the Respondent under a sugarcane growing and supply contract dated 2nd January 2018, which contained an arbitration clause. The dispute had been referred to an arbitration committee after a preliminary objection in Kilgoris CMCC ELC No E051/2021, a suit in which the Applicant claimed the Respondent breached the agreement. The Respondent opposed, contending that the arbitration committee made no monetary award, that the award was ambiguous and non-existent, that the court lacked jurisdiction as the matter was a contractual rather than land dispute, and that the application was an abuse of process. Both parties filed written submissions; the Applicant relied on section 36 of the Arbitration Act, and the Respondent on sections 10, 34 and 35. Although jurisdiction was raised in the Replying Affidavit but not canvassed in submissions, the court raised it on its own motion, framing four issues. Guided by Gami Properties Ltd v Charming General Trading Ltd and the pre-dominant purpose test in Suzzanne Butter v Redhill Investments, the court held the dispute was commercial - compensation for fire-destroyed sugarcane - not a matter of occupation, use and title to land, so enforcement ought to have been sought in the High Court. The application was struck out with costs to the Respondents.

Key legal issues

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01

Whether the ELC has jurisdiction to recognize and enforce an arbitral award arising from a sugarcane growing and supply contract

Holding

The court lacks jurisdiction; the dispute is commercial rather than one relating to occupation, use and title to land

Reasoning

The underlying dispute arose from breach of a sugarcane growing and supply contract and a fire that destroyed sugarcane, with the applicant seeking compensation. Applying the pre-dominant purpose test from Suzzanne Butter v Redhill Investments as applied in Gami Properties Ltd v Charming General Trading Ltd, the court found the dispute commercial, not one concerning occupation, use and title to land, so enforcement should have been sought in the High Court.

p. 3
02

Whether the court should proceed to the merits of the application

Holding

No; once jurisdiction is lacking the court must down its tools and the application is struck out

Reasoning

Relying on the principle that a court without jurisdiction cannot entertain the merits, the court declined to determine whether the arbitral award was recognizable and enforceable, or the merits of the application, and instead struck out the application with costs to the Respondents.

p. 4

Legal principles established

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  • Where a court lacks jurisdiction, it must down its tools and cannot determine the merits
  • In determining whether a dispute falls within ELC jurisdiction, the pre-dominant purpose test applies

Court orders

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  1. 1.The application dated 16th June 2025 is struck out
  2. 2.Costs of the application awarded to the Respondents

Authorities

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Legislation

  • Arbitration ActSection 34
  • Arbitration ActSection 35
  • Arbitration ActSection 36
  • Arbitration ActSection 10
  • Constitution of KenyaArticle 162(2)(b)
  • Environment and Land Court ActSection 13

Cases cited (7)

  • Talewa Road Contractors Limited v Kenya National Highway Authority
    ML HC Mis Civil App. No 535 of 2018 (2019) eKLR
  • Continental Homes Ltd v Suncoast Investments Ltd
    MLD HC Mis App. 62 of 2016
  • Kenya Ole Company Ltd v Kenya Pipeline Co. Ltd
  • Alice Kerubo Nyambati v Ochoki Mogaka and another
  • Gitau Kamau v Ndungu Kamau and another
    2017 (eKLR)
  • Gami Properties Ltd v Charming General Trading Ltd
    ELC E382 of 2021 (2022)
  • Suzzanne Butter and 4 others v Redhill Investments and another
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, "Musekenya v Transmara Sugar Company Limited (Environment and Land Miscellaneous Case E008 of 2025) [2025] KEELC 7490 (KLR)", Case Analysis (2025). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7490/eng@2025-11-03

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