Pemu Engineering & Equipment Limited v Baron Capital Limited (Environment and Land Case E032 of 2025) [2026] KEELC 2946 (KLR)

application dated 15th August 2024 which are the subject of this suit. The court then directed that the preliminary objection be considered first, before the Plaintifi's application and further directed that it be canvassed by way of written submissions. 5. Both parties complied with the court’s directions filing their respective submissions and the court indeed made its determination on the preliminary objection on 22nd May 2025 striking it out with costs to the Plaintifi after finding and holding that it did not meet the threshold test. 6. Soon after the ruling on the preliminary objection, on 26 May 2025, there was a change of advocates for the Defendant vide a Notice of Change of Advocates dated 26th May 2025, filed on the same date. Laura Mwandime, advocate, came on record for the Defendant in place of J.K Ouko and Company Advocates. 7. Meanwhile, the court had on 22nd May 2025, after delivering the ruling, set the inter partes hearing of the Motion dated 17th March 2025 for 24th July 2025, and directed service upon the Defendant. 8. On 24th July 2025 when the matter was scheduled for inter partes hearing of the application of 17th March 2025, the Defendant’s advocate did not turn up and the application was heard in her absence and a ruling delivered on the same date. This was after the court confirmed service upon Laura Mwandime, advocate, via her email address per the afidavit of service by Peter Kigondu Ngata sworn on 20th July 2025 and filed in court on the same date. 9. It is noteworthy that the Defendant’s advocate had on 16th June 2025 filed an application dated 11th June 2025 under Certificate of Urgency seeking to stay proceedings in this case and reference of the dispute to arbitration pursuant to the provisions of section 6 of the Arbitration Act and further seeking that the court vacates all orders issued pursuant to the Plaintifi’s Notice of Motion of 17th March 2025. The application which was under Certificate of Urgency was placed before Lady Justice Komingoi, who did not certify it as urgent but directed that it be placed before this court for directions on 24th July 2025, the same date for the inter partes hearing of the Plaintifi's application dated 17th March 2025. The advocate for the Defendant, as I already stated earlier on, did not show up. 10. The application of 11th June 2025 is one of the applications under consideration in this ruling. Before I go to it substance, I need to bring out the subsequent developments in this case. 11. Before the application of 11th June 2025 was heard, the Defendant filed yet another application dated 29th July 2025. The Defendant in the latter application was praying for two main orders, being; i. The setting aside of the proceedings of 24th July 2025 and ii. The stay of the registration of the restriction against the title to the suit property. 12. The advocate’s main reason for non-attendance on 24th July 2025 and the basis of the application of 29th July 2025 was that she had erroneously failed to diarize the date. 13. That application of 29th July 2025 is being considered concurrently with the earlier one of 11th June 2025. Response by the Plaintifi. 14. The Plaintifi has responded to the Defendant’s application dated 29th July 2025 vide the replying afidavit sworn by one Peter Muthee on 16th October 2025. The deponent terms the Defendant’s application as a deliberate attempt to delay the cause of justice and defeat the purpose of the temporary injunction granted by the court on 24th July 2025. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2946/eng@2026-05-15 2

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Further developments 15. On 15th December 2025, the Defendant changed its advocate once again bringing in the Law firm of Simiyu Lubisia Advocates in place of Laura Mwandime advocate by the Notice of Change of Advocates of even date. 16. The concurrent hearing of the two applications by the Defendant had been scheduled for 18th December 2025. The Plaintifi’s response to the Defendant’s application of 11th June 2025 was filed in court on the same date. Mr. Simiyu, advocate for the Defendant on the material date came to court and sought more time to familiarize with the matter. 17. As fate would have it, on 28th February 2026, the Plaintifi likewise changed its advocate bringing in Omar Munjal and Company Advocates in place of Ms. Kirimi and Company advocates. Consequently on 17th March 2026, when the matter was scheduled for hearing of the pending applications, Mr. Omar, advocate for the Plaintifi, sought time to familiarize with the file and confirm his position on the pending applications. The court then rescheduled the matter for directions on 23rd March 2026. 18. The issue for consideration is whether the applications are merited. Determination. 19. By 23rd March 2026, the court record reveals than the Defendant had by then filed its statement of defence. At paragraph 12 of the said statement of defence, the Defendant explicitly admits the jurisdiction of this court, stating that; “ The Defendant admits that this Honorable court has the requisite jurisdiction to hear and determine this matter as averred in paragraph 12 of the plaint.” 20. I must pause at this juncture and state that 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. As this court stated in its ruling on the Defendant’s preliminary objection, delivered on 22nd May 2025, citing the decision in the case of Adrec Limited v Nation Media Group Limited 2017 eKLR, “ A party wishes to take advantage of the arbitration clause in a contract should either at the time of entering appearance or before entry of appearance make the application for reference to arbitration.” 21. The Court of Appeal in Niazsons (K) Limited v China Road and Bridge, too held that; “ All that an applicant for a stay of proceedings under Section 6 (1) of the Arbitration Act of 1995 is obliged to do is to bring his application promptly. The court will then be obliged to consider the threshold things; a. Whether they applicant has taken any step in the proceedings other than the steps allowed by the section; b. Whether there are any legal impediments on the validity, operation or performance of the arbitration agreement; and c. Whether the suit intended concerned a matter agreed to be referred to arbitration.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2946/eng@2026-05-15 3

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22. In this case, the applicant has gone beyond the steps allowed under Section 6 (1) of the Arbitration Act by filing the statement of defence. Its application of 11th June 2025 must fail. 23. I must state that none of the parties filed any submissions as directed by the court. Instead, Simiyu Lubisia, advocate for the Defendant, filed a replying afidavit sworn on 18th March 2026 purportedly in response to the Plaintifi's application dated 17th March 2025, that was determined way back on 24th July 2025. 24. Back to the Defendant’s application dated 29th July 2025. In the case of Shah v Mbogo (1967) EA 116, the then East African Court of Appeal pronounced itself on the discretion of the court to set aside or vary its orders, stating that; “ 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.” 25. Having carefully considered the circumstances of this case, which I have taken time to narrate above, I am not the least persuaded that the Defendant is deserving of the exercise of this court’s discretion in its favour. Its advocate then, had been duly served with a hearing notice in respect of the Plaintifi’s application of 17th March 2025. The advocate does not indeed deny service in her afidavit in support of the application. 26. Secondly, the advocate had filed the application of 11th June 2025 under certificate of urgency and the duty Judge set it down for directions on 24th July 2025, the same date that the Plaintifi ‘s application of 17th March 2025 was coming up for inter partes hearing. Did the advocate inadvertently fail to diarize twice? I am not persuaded by the explanation. 27. Consequently, the two applications by the Defendant dated 11th June 2025 and 29th July 2025 are hereby dismissed with costs to the Plaintifi. Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 15TH DAY OF MAY, 2026. M.D. MWANGI JUDGE In the virtual presence of: Mr. Simiyu for the Defendant/Applicant Mr. Kimani Horeria for the Plaintifi/Respondent Court Assistant: Alex https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2946/eng@2026-05-15 4

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