Waithaka v Nanjero & another (Environment and Land Miscellaneous Case E366 of 2025) [2026] KEELC 2389 (KLR)
The bottom line
#A Kenyan court ruled you cannot use an arbitration clause to stall enforcement of a judgment that has already settled the dispute.
What this practically means
#Executive summary
#Key legal issues
#Whether a stay of proceedings pending arbitration can be granted where the rights under the agreement containing the arbitration clause have already been determined by a court judgment
Stay cannot be granted; there is no dispute under the agreement capable of being referred to arbitration, and the pending application seeks enforcement of a court decree, not resolution of a dispute under the sale agreement
The court examined clause 22.1 of the sale agreement providing for dispute resolution, then considered section 6(1) of the Arbitration Act. Although mandatory, the provision applies only where a dispute exists under the arbitration agreement. Here a judgment dated 26th April 2024 had already determined the parties' rights and obligations; the respondent's application sought to compel enforcement of the decree. The applicants were in default of the court order having failed to surrender completion documents. Arbitration could not be invoked to stall implementation of a court order.
Legal principles established
#- Section 6(1) of the Arbitration Act is mandatory but subject to exceptions where the arbitration agreement is null and void, inoperative or incapable of being performed, or where there is no dispute between the parties on matters agreed to be referred to arbitration
Court orders
#- 1.The notice of motion dated 3rd December 2025 is not merited and is hereby dismissed
- 2.Costs of the application be in the cause
- Jurisdiction invoked
- Section 6 of the Arbitration Act No. 4 of 1995
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Waithaka v Nanjero & another (Environment and Land Miscellaneous Case E366 of 2025) [2026] KEELC 2389 (KLR)", Case Analysis (2026). ELC Misc No E366 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2389/eng@2026-04-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.