Admass Ventures Limited & 2 others v Saif Properties Limited (Environment and Land Miscellaneous Case E342 of 2025) [2026] KEELC 3162 (KLR)

c. 3. 4. That, owing to the foregoing the Notice of Motion applications dated 27th October 2025 should be struck out with costs to the Respondent. The notice of preliminary objection dated 3rd February was filed in opposition to the respondent’s application dated 16th January 2026 which application sought to have this Honourable Court set aside the said Arbitral Award by Hon. Connie Martina Gumo on the following grounds a. That the Respondent’s said Notice of Motion Application dated 16th January 2026 ofiends Section 35(3) of the Arbitration Act, Chapter 49, Laws of Kenya. b. That, by reason of the efiuxion of time, this Honourable Court is divested of its jurisdiction to entertain the Respondent’s instant Notice of Motion Application to set aside the Arbitral award. c. That the timelines set out in Section 35(3) of the Arbitration Act, Chapter 49, Laws of Kenya, are strict, mandatory and not capable of extension, and that this Honourable Court is divested of the power to entertain an application filed outside the period set out in the Arbitration Act. d. That the Respondent’s Notice of Motion Application ought to be struck out with costs for want of jurisdiction. The court directed the two notices of preliminary objection be dispensed ofi jointly by written submissions and both parties complied with the applicant drafting submissions dated 24th March 2026 while the respondent drafted submissions dated 4th March 2026. Respondents submissions 5. In support of their notice of preliminary objection dated 16th February 2026 the respondent submitted that the issue raised was a pure point of law touching on jurisdiction and hence capable of disposing the suit property hence rightfully before this court. 6. In response to the applicant’s notice of preliminary objection dated 3rd February 2026 the respondent submitted that the allegation in the preliminary objection that their application was time barred under section 35(3) of the Arbitration Act Cap 49 laws of Kenya was improperly raised as it could not be raised in a preliminary objection relying on the case of Orara Vs Mbaja 2005 eKLR. Applicant ‘submissions 7. In support to their notice of preliminary objection dated 3rd February 2023 counsel submitted that the fact that the respondent had filed their application out of time was not disputed and hence an issue of law which could dispose of the suit. 8. That further as per section 35(3) of the arbitration act such an application could only be made 3 months after the award has been given and was not the case here as the arbitral award had been made on the 12th February 2025 and the application to set it aside made on the 16th January 2026.Counsel relied on the case of Mater Sacco Cooperative society Limited Vs Cooperative Bank of Kenya Ltd (2023)KEHC 18104(KLR). 9. In regard to the respondent’s notice of preliminary objection on jurisdiction, the applicant submitted that the high court had dismissed their application to set aside the arbitral award and stated it lacked the jurisdiction and that it should be filed in the right court which is this court placing reliance on the case of Francis Mahiga Kimemia Vs Isaiah Waweru Ngumi(2024)KEELC 1187(KLR).That further the court in United states International University Vs Attorney General ,Nairobi petition No 170 of 2012 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3162/eng@2026-04-29 2

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(eKLR) had decided that special courts being in equal status as the high court have the jurisdiction to entertain applications of recognition and enforcement of arbitral awards. Analysis and determination 10. Having considered the Notices of Preliminary objection and the submissions herein the only issue for determination is whether the Notices of Preliminary Objection dated 16th January 2026 and 3rd February 2026 are merited. The notice of preliminary objection dated 16th January 2025 11. Since the notice of preliminary objection dated 16th January 2026 is on jurisdiction, the court will address it 1st and if it is upheld, then there is no reason to entertain the second one. 12. The threshold of a preliminary objection was set out by the Court of Appeal in the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696 as follows:“...a preliminary objection consists of a pure point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary objection may dispose of the suit. “The Court went further to note that: A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and, on occasion, confuse the issues, and this improper practice should stop.’’ 13. The notice of preliminary objection dated 16th January 2026 is founded on the notion that the suit is improperly before this court as it lacks jurisdiction to entertain the same. It goes without saying that without the requisite jurisdiction a court of law down its tools meaning that the objection, if successful, is capable of finally disposing the whole matter. The objection, therefore, attains the threshold of a pure preliminary point of law. 14. To note is that the Arbitration Act came into efiect on 2nd January, 1996 at a time when the High Court had been the only superior court in the country.However with the new constitution under article 162(2)(b) there was the establishment of the Environment and Land Court Act whose status was the same as that of the High Court.The ELC court is vested with jurisdiction to determine disputes relating to the environment and land in Kenya which in this case includes including Arbitration proceedings arising out of disputes related to the environment and land. The notice of preliminary objection dated 3rd February 2026 15. The applicants aver that the respondent’s application dated 16th January 2026 is time barred as per Section 35(3) of the arbitration Act which goes into the issue of jurisdiction of the court. 16. Section 35) (3) of the Arbitration Act, provides that: An application for setting aside the arbitral award may not be made after three (3) months have elapsed from the date on which the party making that application had received the arbitral award, or if a request had been made under section 34 from the date on which that request had been disposed of by the arbitral award https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3162/eng@2026-04-29 3

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The application has clearly been filed 11 months after the arbitral award was issued on the 15th February 2025.The respondent claims that the said application was made in the high court but was dismissed for lack of jurisdiction and claims the court should consider that the application was filed in due time despite it being dismissed by the high court. I would like to agree with the submissions of the applicant that when a party files an Application before the wrong court the same does not stop time from running. As rightfully submitted as in the case of Divecon Limited Vs Shirinkhanu Sadrudin Samani ([1995-1998] 1 EA 48), as cited with approval in the case of Justus Mukhwana Sebhi v Barclays Bank of Kenya [2015] KEELRC 1223 (KLR), the Court of Appeal held that filing a suit in the wrong forum does not stop time from running of time for limitation purposes. The question of limitation is not a mere technicality but goes to the jurisdiction of the Court. As held in Bosire Ongero -Vs- Royal Media Services [2015] eKLR, limitation “touches on the jurisdiction of the court, which means that if a matter is statute-barred, the court would lack jurisdiction to entertain it.” The Court of Appeal in Owners of the Motor Vessel “Lilian S” -Vs- Caltex Oil (Kenya) Ltd [1989] KLR 1 famously stated: “Jurisdiction is everything; without it, a court has no power to make one more step.” 17. The respondent’s application is therefore time barred. The application is therefore statute-barred, and this Court lacks jurisdiction to entertain it. Final disposition 18. The upshot of the above is that; i. The Preliminary Objection dated 16th January 2026 is merited and the same is hereby allowed. ii. The preliminary objection dated 3rd February 2026 lacks merit and the respondent’s notice of motion application dated 16th January 2026 is hereby allowed as prayed. iii. Each party shall bear the its own costs. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 29TH DAY OF APRIL 2026. MOHAMMED N. KULLOW JUDGE Ruling delivered in the presence of: Ms. Khadija for the Applicant Ms. Chelagat for the Respondent Philomena W. Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3162/eng@2026-04-29 4

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