Youth Limited v Kihiko & 2 others (Civil Suit 160 of 2019) [2026] KEELC 914 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the 3rd Defendant's Motion dated 3rd July 2025 was an abuse of court process
It was an abuse of process and was dismissed
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.
Whether the dispute should be referred to arbitration under the lease's clause 3.7
Referral refused; the Motion dated 10th July 2025 was dismissed
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).
Whether the Plaintiff's belated invocation of arbitration was barred
Yes; the right was lost by delay and acquiescence
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.
Legal principles established
#- 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
#- 1.The Notice of Motion dated 3rd July, 2025 is hereby dismissed.
- 2.The Motion dated 10th July, 2025 is hereby dismissed.
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.