Pemu Engineering & Equipment Limited v Baron Capital Limited (Environment and Land Case E032 of 2025) [2026] KEELC 2946 (KLR)
The bottom line
#A Kenyan land court dismissed a company's attempt to move a land dispute to arbitration after it had already admitted the court's jurisdiction by filing a defence.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Defendant's application dated 11th June 2025 seeking stay of proceedings and reference of the dispute to arbitration under section 6 of the Arbitration Act is merited
- 2.Whether the Defendant's application dated 29th July 2025 seeking setting aside of the proceedings of 24th July 2025 and stay of registration of the restriction against the title is merited
Key legal issues
#Whether the Defendant's application under section 6 of the Arbitration Act for stay and reference to arbitration was competent
The application must fail because the Defendant filed a statement of defence and admitted the court's jurisdiction, taking steps beyond those permitted under section 6(1)
The court had already struck out the Defendant's preliminary objection on the arbitration clause on 22nd May 2025. Citing Adrec Limited v Nation Media Group Limited and Niazsons (K) Limited v China Road and Bridge, the court restated that a party relying on an arbitration clause must apply promptly, at or before entry of appearance, and must not take steps beyond those allowed by section 6(1). By filing a defence expressly admitting the court's jurisdiction, the Defendant disentitled itself from invoking the arbitration clause.
Whether the proceedings of 24th July 2025, held in the Defendant's advocate's absence, should be set aside
The application to set aside was refused; the explanation of failure to diarize was unpersuasive and service was not denied
Applying Shah v Mbogo, the discretion to set aside orders serves to avoid injustice from accident, inadvertence or excusable mistake, not to assist deliberate obstruction or delay. The advocate had been duly served with the hearing notice and did not deny service. She had also filed an application under certificate of urgency that was listed for the very same date, undermining the claim of inadvertent failure to diarize twice. The court was therefore not persuaded to exercise its discretion in the Defendant's favour.
Legal principles established
#- A party wishing to take advantage of an arbitration clause must apply for reference to arbitration at or before entry of appearance
- An applicant for stay under section 6(1) of the Arbitration Act must apply promptly and must not have taken steps in the proceedings beyond those allowed by the section
- The discretion to set aside or vary orders exists to avoid injustice from accident, inadvertence or excusable mistake, not to assist deliberate obstruction or delay
Court orders
#- 1.The Defendant's applications dated 11th June 2025 and 29th July 2025 are dismissed
- 2.Costs of the two applications to the Plaintiff
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over the suit property; not expressly stated in the judgment
Relief refused
#Stay of proceedings and reference of the dispute to arbitration under section 6 of the Arbitration Act (application dated 11th June 2025)
The Defendant had taken steps beyond those allowed under section 6(1) by filing a statement of defence admitting the court's jurisdiction
Setting aside of the proceedings of 24th July 2025 and stay of the registration of the restriction against the title (application dated 29th July 2025)
The advocate was duly served and the explanation of failure to diarize was not credible; the discretion is not meant to assist deliberate delay
Costs
The two applications by the Defendant dated 11th June 2025 and 29th July 2025 dismissed with costs to the Plaintiff
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Consequently, the two applications by the Defendant dated 11th June 2025 and 29th July 2025 are hereby dismissed with costs to the Plaintifi.
The filing of the statement of defence by the Defendant and the clear admission of the jurisdiction of the court outrightly defeats the Defendant’s own application of 11th June 2025.
The discretion is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error, but is not designed to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice.
Did the advocate inadvertently fail to diarize twice? I am not persuaded by the explanation.
Issues in the judgment
#The court states that none of the parties filed submissions as directed, yet the Defendant's advocate filed a replying affidavit; the judgment also contains recurring typographical errors (e.g. 'Plaintifi' for 'Plaintiff'), suggesting transcription defects
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Pemu Engineering & Equipment Limited v Baron Capital Limited (Environment and Land Case E032 of 2025) [2026] KEELC 2946 (KLR)", Case Analysis (2026). Not stated in the judgment (suit commenced by plaint dated 17th March 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2946/eng@2026-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.