Gakibe v M. Dalmar Trading Company Limited (Arbitration Cause E034 of 2024) [2025] KEELC 6381 (KLR)

defence albeit under protest and could not now raise the issue of jurisdiction. Lastly counsel argued that the filing of this application after pursuing other avenues amounts to an abuse of the process of the court. 5. Counsel for the Applicant on his part submits that the dispute herein arises from a lease agreement which is at the center of the proceedings in the Arbitral Tribunal. As such the jurisdiction of this court cannot be denied. 6. The first issue the court must determine is whether the court has jurisdiction to determine this matter. The centrality of jurisdiction was immortalized in the celebrated case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd. (1989): in which the court stated “Jurisdiction is everything. Without it a court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A court of law downs 5 its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction…. Where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given. 7. Section 13 (2) of the Environment and Land Court Act, 2011 stipulates as follows: “ In exercise of its jurisdiction under Article 162(2) (b) of the Constitution, the Court shall have power to hear and determine disputes — (a) relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources. (b) relating to compulsory acquisition of land. (c) relating to land administration and management. (d) relating to public, private and community land and contracts, chooses in action or other instruments granting any enforceable interests in land. (e) any other dispute relating to environment and land.” 8. A perusal of the pleadings on record indicate that indeed the statement of claim filed by the Respondent was predominantly for compensation for damages arising out of breach of an agreement. Is it conceivable that the Tribunal can determine the issue of damages in a vacuum without considering and interpreting the terms of the lease? I find not. The issue of the terms of the lease, which was party was in breach will be under consideration in the Arbitral Tribunal and by extension the court to which any challenge on the award is filed. 9. This court can only be the Environment and Land Court which is given mandate under the Land Registration Act No 3 of 2012 and the Land Act to adjudicate on issues arising out of lease agreements. 10. While Section 17 (6) of the Arbitration Act refers to the High Court as the court to which any challenge on jurisdiction can be made, this provision must be read together with Article 162 (2) b and Article 165 (5) b of the Constitution. While many laws enacted before 2010 still refer to the High Court only, guided by the circumstances of each case and the constitutional requirement to interpret the Constitution in a manner that promotes the purposes, values and principles of the Constitution it is imperative that courts ensure that the objectives of the Constitution makers in establishing the Environment and Land Court is not lost. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6381/eng@2025-02-20 2

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11. The remaining issues raised of the incompetence of the application shall require delving into facts which would be premature. In the end, I find that the Preliminary Objection has no merit and is dismissed with costs to abide the outcome of the Originating Summons. RULING SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 20TH DAY OF FEBRUARY 2025 JUDY OMANGE JUDGE In the presence of: Court Assistant Merylynn Mr. Mwangi for Applicant Mr. Mbabu for Respondent https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6381/eng@2025-02-20 3

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