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ELCDismissedELC Case No. E499 of 2025· [2026] KEELC 4237 (KLR)

Paul v Amber Medical Clinic Ltd & another (Environment and Land Case E499 of 2025) [2026] KEELC 4237 (KLR)

Environment and Land Court
9 July 2026
MCMbogo C.G.
2,930 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 dismissed attempts to strike out a land sale dispute defence, confirming the case must go to full trial.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court determined a notice of motion dated 27th November, 2025 filed by the plaintiff under Order 2 rule 15(1)(b)(c) & (d) and Order 51 Rule 1 of the Civil Procedure Rules, seeking striking out of the defendants' statement of defence and entry of judgment as prayed in the plaint, together with two preliminary objections filed by the defendants challenging the court's jurisdiction. The first objection, dated 27th November, 2025, contended that the suit concerns enforcement of a civil contract outside Section 26 of the Environment and Land Court Act; the second, dated 6th February, 2026, argued that an arbitration clause in the sale agreement ousted the court's jurisdiction in the first instance. The court, applying the Mukisa Biscuits definition of a preliminary objection as a pure point of law on undisputed facts, held that the dispute stems from an agreement for sale of land over which the court has jurisdiction under Section 13(2) of the Environment and Land Court Act, and that enforceability of the contract requires a trial. On arbitration, relying on Section 6(1) of the Arbitration Act and the Adrec Limited and Niazsons decisions, the court held that by filing a defence without a prompt stay application the defendants forfeited the right to arbitrate. On the motion, the court held that the defence, consisting of denials and requests for strict proof, raises triable issues and is not scandalous, frivolous or vexatious, striking out being a last resort. The application and both preliminary objections were dismissed with costs in the cause.

Key legal issues

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01

Whether the ELC has jurisdiction over a dispute on enforcement of a contract for sale of land

Holding

The court has jurisdiction over disputes relating to interests in land acquired by purchase through an agreement for sale

Reasoning

Section 13(2) of the Environment and Land Court Act confers power to hear disputes relating to public, private and community land and contracts granting enforceable interests in land. The suit arises from a sale agreement dated 31st January, 2020 over LR No. 1160/807. Whether the contract is enforceable requires evidence and cannot be determined as a preliminary point without engaging in a mini trial.

p. 7
02

Whether the arbitration clause ousts the court's jurisdiction given the filing of a defence

Holding

By filing a statement of defence without applying for stay, the defendants lost the right to refer the dispute to arbitration

Reasoning

Under Section 6(1) of the Arbitration Act, an application for stay must be made not later than entry of appearance or acknowledgment of the claim. The defendants admitted the court's jurisdiction in paragraph 4 of their defence and made no prompt stay application. Filing the defence subjected them to the court's jurisdiction and the right to arbitrate was forfeited.

p. 10
03

Whether the statement of defence should be struck out for being a sham

Holding

The defence raises triable issues and cannot be struck out

Reasoning

Merely denying the contents of the plaint and putting the plaintiff to strict proof does not mean the defence raises no triable issues. The amounts allegedly owed, if any, must be assessed at trial where the plaintiff bears the burden of proving her claims to the required standard. Striking out is a last resort used only in the clearest of cases.

p. 12

Legal principles established

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  • A preliminary objection must consist of a pure point of law based on undisputed facts and must be capable of disposing of the suit without trial
  • A party who files a statement of defence forfeits the right to invoke an arbitration clause to seek stay of proceedings under Section 6(1) of the Arbitration Act
  • Striking out pleadings is a remedy of last resort to be exercised sparingly and only in the clearest of cases

Court orders

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  1. 1.The notice of motion dated 27th November, 2025 is dismissed
  2. 2.The notice of preliminary objection dated 27th November, 2025 is dismissed
  3. 3.The notice of preliminary objection dated 6th February, 2026 is dismissed
  4. 4.Costs shall be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 rule 15(1)(b)(c) & (d)
  • Civil Procedure RulesOrder 51 Rule 1
  • Environment and Land Court ActSection 13(2)
  • Arbitration Act Cap 49Section 6(1) and (2)
  • Constitution of KenyaArticle 162(2)(b)

Cases cited (5)

  • Mukisa Biscuits Manufacturing Company Limited -vs- West End Distributors
    (1969) EA 696
  • John Musakali vs. Speaker County of Bungoma & 4 others
    (2015) eKLR
  • Oraro -vs- Mbaja
    (2005) KLR 141
  • Adrec Limited v Nation Media Group Limited
    [2017] KECA 106 (KLR)
  • Niazsons Corporation (K) Kenya Ltd v China Road & Bridge
    [2001] KECA 376 (KLR)
Jurisdiction invoked
Environment and Land Court Act, Section 13(2), exercising jurisdiction under Article 162(2)(b) of the Constitution

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, "Paul v Amber Medical Clinic Ltd & another (Environment and Land Case E499 of 2025) [2026] KEELC 4237 (KLR)", Case Analysis (2026). ELC Case No. E499 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4237/eng@2026-07-09

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