Wibeso Ltd & Others v Tamarind Meadows Ltd & Others (suit number not stated in judgment)
The bottom line
#Contractual arbitration clauses are binding; courts will enforce them even if the application is slightly late, provided the dispute is commercial.
What this practically means
#Executive summary
#Key legal issues
#Whether the dispute was subject to a valid arbitration agreement (clause 21 of the sale agreements)
Yes; clause 21 covered disputes on interpretation, rights, obligations and implementation of the agreement, and the dispute over failure of consideration fell within it.
The court examined clause 21 of the sale agreements which required disputes to be referred to arbitration after failed amicable negotiation. It found the plaintiffs' claim was for breach of contract and refund of purchase consideration, not a claim to title to land, and both plaintiffs and the 1st defendant were parties to the agreements, so there was no bar to referral.
Whether the defendants' late application under section 6 of the Arbitration Act barred referral to arbitration
The court excused the delay in the interest of justice and Article 159(2) of the Constitution and referred the dispute to arbitration.
The defendants applied late, contrary to section 6 of the Arbitration Act which requires an application not later than entry of appearance. The court nonetheless exercised discretion, citing Article 159(2) and the parties' agreement, and noted the plaintiffs had failed to disclose the arbitration clause at the ex-parte stage, so no prejudice would be suffered.
Whether the suit was a land matter outside the High Court's jurisdiction
No; the claim was a commercial breach-of-contract dispute for refund of purchase consideration, not a claim to title to land.
The court distinguished between disputes as to title or use of land (ELC jurisdiction) and contractual claims. The plaint sought refund of purchase consideration for failure of consideration, making it a commercial dispute within the High Court's jurisdiction and outside the Environment and Land Court under Article 162(2)(b).
Legal principles established
#- Where parties have agreed by contract to refer disputes to arbitration, the court should refer the dispute to arbitration before the parties approach the courts, subject to section 6 of the Arbitration Act.
Court orders
#- 1.All further proceedings and orders in the suit stayed and the dispute referred to arbitration under Clause 21 of the sale/purchase agreements
- 2.Parties to agree on a single arbitrator within thirty (30) days, failing which the arbitrator to be appointed by the Chairman of the Chartered Institute of Arbitrators Kenya Chapter upon application of either party
- 3.The dispute to be determined by arbitration within sixty (60) days from the date of appointment of the arbitrator
- 4.Costs of the application awarded to the defendant/applicants
- Jurisdiction invoked
- Original civil jurisdiction of the High Court; application brought under Articles 48 and 50 of the Constitution, sections 1A and 3A of the Civil Procedure Act, Order 40 Rules 4 and 7 and Order 51 Rules 1-3 and 15 of the Civil Procedure Rules and section 6 of the Arbitration Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ntutu v County Council of Narok & 2 others (Environment & Land Case 21 of 2021) [2025] KEELC 1064 (KLR)[2025] KEELC 1064 (KLR)6 Mar 2025
- Kapiti Investments Company Limited v District Land Registrar, Machakos & 5 others (Environment and Land Case 5 of 2014) [2024] KEELC 5556 (KLR)[2024] KEELC 5556 (KLR)30 Jul 2024
Cite this brief
#Cite this brief
Caselaw, "Wibeso Ltd & Others v Tamarind Meadows Ltd & Others (suit number not stated in judgment)", Case Analysis (2020). Civil Case No 10 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/kehc/2020/3018/eng@2020-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.