Tana Salt Ltd v Kurawa Salt Industries Ltd & Philip K. Murgor, SC, MCIArb (as Arbitrator)
The bottom line
#Kenya's Environment and Land Court struck out Tana Salt's bid to overturn an arbitrator's interim order, ruling the company should first finish the same challenge already pending before the arbitral tribunal.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC over challenges to arbitral interim measures concerning land
The ELC has jurisdiction in so far as the matter relates to possession of land, lease renewal and interpretation of the lease; the references to the High Court in the Arbitration Act should be read subject to Article 162(2)(b)
Applying the dominant issue test from Co-operative Bank v Njuguna, the court found that although the proximate trigger was a perceived procedural defect, enforcement of the impugned order has direct consequences in rem concerning possession of land, lease renewal and lease interpretation, engaging Article 162(2)(b) and Section 13(1) of the ELC Act.
Parallel proceedings and exhaustion
The OS and Summons are an abuse of court process because a replica application dated 14th January 2026 remains pending and undetermined before the Tribunal and should have been exhausted first
The applicant did not deny the pendency of the application dated 14th January 2026 before the Tribunal; the grounds supporting it are the same as those in the OS. The court held it imprudent to supervise the Tribunal while the Tribunal had neither granted nor declined the setting-aside application, and found the suit abusive on multiplicity grounds per Muchanga Investments.
Applicability of Section 37 of the Arbitration Act
Section 37 is inapplicable to interim orders made before a final award; it governs refusal of recognition or enforcement of final arbitral awards
The court examined the structure of the Act: Section 37 sits in Part VII on Recognition and Enforcement of Awards, following Part VI on Recourse to the High Court Against Arbitral Award, and operates against the backdrop of Section 36 dealing with the final award. It cannot be invoked to cure minor procedural defects before a final award.
Legal principles established
#- A suit filed without jurisdiction is dead on arrival and cannot be remedied
- The ELC's jurisdiction over contracts must be understood within the context of disputes connected to use of land; such contracts must be incidental to the use of land
- Section 37 of the Arbitration Act applies to final arbitral awards in the context of recognition and enforcement, not to interim orders or minor procedural defects before a final award
- Multiplicities of action on the same matter between the same parties constitute an abuse of process even absent malice
Court orders
#- 1.The Originating Summons and the Summons both dated 16th January 2026 are struck out
- 2.Costs of the applications awarded to the respondents
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tana Salt Ltd v Kurawa Salt Industries Ltd & Philip K. Murgor, SC, MCIArb (as Arbitrator)", Case Analysis (2026). ELC Case No. E003 of 2026 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5990/eng@2026-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.