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ELCDismissedELC suit involving LR No. 209/6445, Nairobi (suit instituted by Plaint dated 16th May 2019)· [2026] KEELC 914 (KLR)

Youth Limited v Kihiko & 2 others (Civil Suit 160 of 2019) [2026] KEELC 914 (KLR)

Environment and Land Court
19 February 2026
5,837 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court refused to send this Nairobi land dispute to arbitration, ruling both sides' applications were either abusive or filed too late.

What this practically means

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Executive summary

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The Environment and Land Court in Nairobi, per O. A. Angote J, determined two competing applications. The 3rd Defendant's Motion dated 3rd July 2025 sought to set aside an arbitrator's ruling of 2nd July 2025 and to stay the ongoing arbitral proceedings, contending that the Court of Appeal's stay orders in Civil Appeal No. E019 of 2024, endorsed by this court on 14th November 2024, covered the arbitration. The Plaintiff filed a preliminary objection asserting the application was an abuse of process and improperly filed in this suit rather than in ELC No. 392 of 2022. The Plaintiff's own Motion dated 10th July 2025, brought under Section 6 of the Arbitration Act, sought referral of the dispute to arbitration under clause 3.7 of a lease over LR No. 209/6445 and a stay of these proceedings. The 1st and 3rd Defendants opposed, arguing the 1st Defendant was not party to the lease, the application was belated contrary to Section 6(1), and the lease's validity was contested with fraud pleaded, raising land ownership issues within the court's exclusive jurisdiction. The court reviewed its own prior ruling, the Court of Appeal decision, and the arbitral ruling, concluding they consistently showed only the contempt proceedings in ELC No. E392 of 2022 were stayed. It held the 3rd Defendant's Motion an abuse of process. It held the arbitration clause bound only parties to the lease, that the Plaintiff had waived any right to arbitrate by delay and acquiescence, and that the fraud and title issues were not arbitrable. Both Motions were dismissed with each party bearing their own costs.

Key legal issues

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01

Whether the 3rd Defendant's Motion dated 3rd July 2025 was an abuse of court process

Holding

It was an abuse of process and was dismissed

Reasoning

The court reviewed its own ruling of 14th November 2024, the Court of Appeal ruling in Civil Appeal No. E019 of 2024, and the arbitrator's ruling of 2nd July 2025, and found they were consistent: only the contempt proceedings in ELC No. E392 of 2022 were stayed, not the arbitral proceedings. The 3rd Defendant was seeking directions in this suit affecting a separate, unconsolidated matter, while simultaneously opposing the Plaintiff's referral to arbitration.

p. 8
02

Whether the dispute should be referred to arbitration under the lease's clause 3.7

Holding

Referral refused; the Motion dated 10th July 2025 was dismissed

Reasoning

The arbitration clause covers only disputes between parties to the lease; the 1st and 2nd Defendants are not parties and the main reliefs are against them. The Plaintiff did not invoke the clause promptly upon the 3rd Defendant's joinder, continued litigating, and had earlier denied any claim against the 3rd Defendant. The lease's existence and validity are denied with fraud pleaded, raising ownership and title questions within the court's exclusive jurisdiction under Article 162(2)(b).

p. 11
03

Whether the Plaintiff's belated invocation of arbitration was barred

Holding

Yes; the right was lost by delay and acquiescence

Reasoning

The Plaintiff instituted the suit in 2019 against the 1st and 2nd Defendants, and only sought referral over eight months after the 3rd Defendant's joinder, after filing a reply to defence and defence to counterclaim. Section 6(1) requires the application at the time of entering appearance or acknowledging the claim, and the Court of Appeal in Mount Kenya University v Step Up Holding requires strict compliance.

p. 10

Legal principles established

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  • An arbitration clause applies only to disputes between the contracting parties to the instrument and cannot be imposed on non-parties, as arbitration is founded on party autonomy.
  • Under Section 6(1) of the Arbitration Act an application to stay proceedings and refer to arbitration must be made not later than the time of entering appearance or otherwise acknowledging the claim; delay and continued participation amount to waiver.
  • A party cannot use one suit to issue directions affecting a separate, unconsolidated suit; doing so is an abuse of court process.

Court orders

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  1. 1.The Notice of Motion dated 3rd July, 2025 is hereby dismissed.
  2. 2.The Motion dated 10th July, 2025 is hereby dismissed.
  3. 3.The parties shall bear their own costs.
Jurisdiction invoked
Environment and Land Court jurisdiction under Article 162(2)(b) of the Constitution and the Environment and Land Court Act; Section 3A Civil Procedure Act; Section 6 Arbitration 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, "Youth Limited v Kihiko & 2 others (Civil Suit 160 of 2019) [2026] KEELC 914 (KLR)", Case Analysis (2026). ELC suit involving LR No. 209/6445, Nairobi (suit instituted by Plaint dated 16th May 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/914/eng@2026-02-19

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