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ELCPartially AllowedChamber Summonses dated 3rd July 2025 in the Petition· [2026] KEELC 149 (KLR)

Tesfaighiorgis & 2 others v Rosslyn Suites Limited (Environment and Land Petition E042 of 2025) [2026] KEELC 149 (KLR)

Environment and Land Court
26 January 2026
2,797 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court sent a property dispute straight to arbitration because the leases contained an arbitration clause, pausing the court case.

What this practically means

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Executive summary

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The respondent, a property developer, moved the court by chamber summons dated 3rd July 2025 under Article 159(2)(c) of the Constitution, section 6 of the Arbitration Act and sections 1A, 1B and 3A of the Civil Procedure Act, seeking a stay of the petition and referral of the dispute to arbitration pursuant to arbitration clauses in agreements for lease with the three petitioners over apartments in the Enaki Town development on Land Parcel 10688/219. The petitioners opposed, arguing that their petition concerned violations of constitutional rights under Articles 27(1), 28 and 40 and the interpretation of the Sectional Properties Act 2020, the Sectional Properties Regulations 2021, the Land Act 2012 and the Land Registration Act 2012, matters they said were outside the arbitration clause and within the exclusive jurisdiction of the Environment and Land Court. They contended they had fulfilled all contractual obligations and that no dispute capable of referral existed. The respondent maintained the petitioners had concealed the arbitration clause and had elevated a contractual dispute to a constitutional question to defeat it, invoking the doctrine of constitutional avoidance. The court framed a single issue: whether the dispute ought to be referred to arbitration. Relying on section 6 of the Arbitration Act, section 10's non-intervention rule, Technoservice, National Bank of Kenya v Pipe Plastic Samkolit and the exhaustion doctrine in Muthinja, the court held the dispute arose from the lease agreements and was private, warranting no court intervention. The application was allowed; the dispute was referred to arbitration and all proceedings stayed, with no orders as to costs.

Key legal issues

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01

Whether the dispute ought to be referred to arbitration notwithstanding that the petition alleges violations of constitutional rights and invokes statutory interpretation

Holding

Yes; the dispute arises from the lease agreements containing arbitration clauses, and the court is obliged to stay the proceedings and refer the dispute to arbitration under section 6 of the Arbitration Act, no statutory exception having been established

Reasoning

The lease agreements required good-faith consultation, failing which disputes would be referred to arbitration. Filing suit demonstrated a dispute existed, its subject matter being the form of registration of the petitioners' units, which arises from the lease agreements. Section 10 of the Arbitration Act bars court intervention, and no public interest or substantial injustice warranted intervention. A court cannot rewrite the parties' contract or bypass a chosen dispute-resolution mechanism under the exhaustion doctrine.

p. 6
02

Whether a court may intervene in a private contractual dispute notwithstanding an arbitration agreement

Holding

No; court intervention in matters governed by the Arbitration Act is limited to circumstances expressly permitted by the Act or where substantial injustice in public interest would otherwise occur

Reasoning

Section 10 of the Arbitration Act provides that no court shall intervene in matters governed by the Act except as provided therein. The court adopted Technoservice, which identifies only two avenues for intervention: where the Act expressly permits it, and in public interest where substantial injustice is likely. The present dispute is a private one between the parties, so no public interest warranted judicial intervention.

p. 5

Legal principles established

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  • Where proceedings are brought in a matter subject to an arbitration agreement and a party applies under section 6 of the Arbitration Act, the court shall stay the proceedings and refer the parties to arbitration unless the agreement is null and void, inoperative or incapable of being performed, or there is no dispute
  • Where a dispute resolution mechanism exists outside courts, it must be exhausted before the jurisdiction of the courts is invoked (exhaustion doctrine)

Court orders

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  1. 1.The dispute between the parties is referred to arbitration in accordance with the terms of the respective agreements for lease entered into by and between the petitioners and the respondent
  2. 2.All proceedings in the suit are stayed pending arbitration in compliance with the terms of the respective agreements for lease
  3. 3.No orders as to costs
Jurisdiction invoked
Article 159(2)(c) of the Constitution; Section 6 of the Arbitration Act; Sections 1A, 1B and 3A of the Civil Procedure 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, "Tesfaighiorgis & 2 others v Rosslyn Suites Limited (Environment and Land Petition E042 of 2025) [2026] KEELC 149 (KLR)", Case Analysis (2026). Chamber Summonses dated 3rd July 2025 in the Petition. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/149/eng@2026-01-26

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