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ELCDismissedNot stated in the extract· [2026] KEELC 2890 (KLR)

Mueni v Lenana Gardens Limited (Land Case E558 of 2025) [2026] KEELC 2890 (KLR)

Environment and Land Court
8 May 2026
2,560 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 confirmed that an arbitration clause does not block a party from asking the court for urgent interim protection before arbitration starts.

What this practically means

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Executive summary

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The Defendant raised a preliminary objection contending that the Environment and Land Court lacked jurisdiction because the parties' agreement contained a mandatory arbitration clause (Clause 12.9) and the Plaintiff had prematurely invoked the Court's process without exhausting the agreed dispute-resolution mechanism, including by seeking summary judgment. The Defendant relied on Mukisa Biscuit, Owners of the Motor Vessel 'Lillian S', and the exhaustion and party-autonomy line of authorities, urging that the suit and application be struck out with costs. The Plaintiff, opposing, submitted that her application sought only interim measures of protection under Section 7(1) of the Arbitration Act, which expressly permits a party to approach the Court before or during arbitral proceedings; she relied on Safaricom v Ocean View Beach Hotel, Jr Miles Construction and CMC Holdings. The Court framed a single issue: whether the preliminary objection was merited. It held the objection was a proper point of law under Mukisa Biscuit, and that the substantive dispute fell within the arbitration agreement, with no waiver by the Defendant. However, because the Plaintiff sought only interim protective orders pending arbitration and Section 7(1) permits such applications before arbitral proceedings commence, the arbitration clause did not bar the application. Clause 12.9 itself allowed resort to a court for interim relief. The Court dismissed the preliminary objection with costs, leaving the Plaintiff's application to proceed on its merits.

Key legal issues

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01

Whether the preliminary objection based on the arbitration clause was a proper point of law

Holding

Yes - a plea that parties are bound by a contractual arbitration clause is a classic proper preliminary objection

Reasoning

The Court applied Mukisa Biscuit, holding that jurisdiction objections founded on a contractual arbitration clause fall squarely within the classic examples of proper preliminary objections. The objection required no ascertainment of facts and was raised at the earliest opportunity, so it was competently before the Court as a pure point of law.

p. 4
02

Whether the arbitration clause deprived the Court of jurisdiction over the Plaintiff's application for interim measures

Holding

No - Section 7(1) of the Arbitration Act expressly permits a party to seek interim measures of protection before or during arbitral proceedings

Reasoning

While the substantive dispute fell within the mandatory arbitration clause and the Defendant was entitled to insist on referral, the Plaintiff sought only interim protective relief, not determination of the substantive dispute. Section 7(1) allows court intervention before arbitral proceedings commence, and Clause 12.9 itself permitted preliminary injunctive relief from a court of competent jurisdiction. Declining jurisdiction pending arbitration would risk dissipating the subject matter.

p. 6

Legal principles established

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  • A party may seek interim measures of protection from the Court under Section 7 of the Arbitration Act before or during arbitral proceedings, and the existence of an arbitration clause does not bar such an application
  • Failure to first initiate arbitration does not defeat an application for interim measures, since such measures exist precisely to preserve the subject matter before the tribunal is constituted

Court orders

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  1. 1.The Defendant's Preliminary Objection is dismissed with costs

Authorities

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Legislation

  • Arbitration ActSection 7(1)
  • Arbitration ActSection 10
  • Arbitration ActSection 3
  • Arbitration ActSection 6
  • Environment and Land Court ActSection 13(2)
  • Constitution of KenyaArticle 162(2)(b)

Cases cited (12)

  • Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd
    [1969] EA 696
  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] KLR 1
  • Alison Jean Louis v Rama Homes Limited
    [2020] KEHC 637
  • Speaker of the National Assembly v James Njenga Karume
    [1992] eKLR
  • Dickson Mukwe Lukeine v Attorney General & 4 others
    [2012] eKLR
  • Nyutu Agrovet Limited v Airtel Networks Limited
    [2015] eKLR
  • Geofirey Muthinja Kabiru & 2 others v Samuel Munga Henry & 1756 others
    [2015] eKLR
  • Samuel Kamau Macharia & another v Kenya Commercial Bank Ltd & 2 others
    Civil Application No. 2 of 2011; [2012] eKLR
  • Safaricom Limited v Ocean View Beach Hotel Limited & 2 others
    [2010] eKLR
  • Jr Miles Construction Ltd v Bomi Engineering and Construction Limited & another
    [2025] KEHC 3286 (KLR)
  • CMC Holdings Ltd & another v Jaguar Land Rover Exports Limited
    [2013] eKLR
  • Oraro v Mbaja
    (2005) eKLR
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, "Mueni v Lenana Gardens Limited (Land Case E558 of 2025) [2026] KEELC 2890 (KLR)", Case Analysis (2026). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2890/eng@2026-05-08

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