Tana Salt Ltd v Kurawa Salt Industries Ltd & Philip K. Murgor, SC, MCIArb (as Arbitrator)

parcel L.R No. 15202, North of Malindi, Tana River , and to further inhibit the registration of any dealing by the 1 st Respondent, Kurawa Industries Ltd, in the Applicant’s said parcel, L.R. No. 15202, North of Malindi, Tana River; c. That upon the making of order number 3 above, a copy of the inhibition Order under the seal of this Honourable ELC Court, bearing particulars of the Applicant’s Parcel L.R. No. 15202, North of Malindi, Tana River be forthwith served on the relevant Land Registrar, who shall forthwith register it in the appropriate register; d. That a declaration do issue that the 2nd Respondent (Philip K. Murgor, SC, MCIArb, (as Arbitrator in the Arbitral proceedings between the Applicant and the 1st Respondent herein) had no jurisdiction to issue a mandatory injunction Order on 13 th January 2026 based on the ex parte proceedings on 9 th January 2026 before him in respect of the Applicant’s Parcel L.R No. 15202, North of Malindi, Tana River, by reason of which the Ruling dated 9th January, 2026 and the Order dated 13th January 2026 is null and void ab initio; e. That a declaration do issue that there having been no formalization of any lease extension between Tana Salt Ltd and Kurawa Industries Ltd in respect of Kurawa Industries Ltd’s lease over L.R. No 15202, North of Malindi, Tana River MLDELCLMISCE003/26-RLG/DF-19.01.26/FH-20.02.26/LH-16.06.26/DR 28.10.26F . Page 2

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under the Lease dated 24 th February, 2016 and ending on 31 st December, 2025, upon the said Lease having so expired, it could not automatically be renewed absent the parties consensual formalization of the extension and registration thereof as mandated by Section 44 (1) of the Land Registration Act; f. That a declaration do issue that the 2nd Respondent exceeded his mandate as arbitrator in the arbitration proceedings between the Applicant Tana Salt, Ltd and the 1 st Respondent Kurawa Industries Ltd in hearing ex parte the 1 st Respondent’s application dated 5th January 2026 and acted unfairly toward the Applicant Tana Salt Ltd in failing to respond to the Applicant’s emails of 12th January 2026 and failing to expeditiously deal with the Applicant’s proprietorship rights over the suit land LR No. 15202, North of Malindi, Tana River. 2. Alongside the Originating Summons was filed a Summons dated 16th January 2026 which seeks the following orders: a. ………………………………..Spent; b. Pending the hearing and determination of this Summons there be a stay of execution and further execution of the ruling dated 9th January 2026 and order dated 13 th January 2026 of the Arbitral Tribunal (Philip Murgor, SC MCI Arb arbitrator) and all subsequent processes password to the other dated MLDELCLMISCE003/26-RLG/DF-19.01.26/FH-20.02.26/LH-16.06.26/DR 28.10.26F . Page 3

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13th January 2026 of the Arbitral Tribunal until further orders of this court; c. Pending the hearing and determination of the Originating Summons herein there be a stay of execution and further execution of the ruling dated 9th January 2026 and order dated 13th January 2026 of the Arbitral Tribunal (Philip Murgor, or SC MCI Arb arbitrator) and all subsequent processes pursuant to the order dated 13th January 2026 of the Arbitral Tribunal until further orders of this court; d. Pending the hearing and determination of the Originating Summons herein, an inhibition order do issue inhibiting the registration of the ruling dated 9 th January 2026 and the order dated/ issued on 13th January 2026 by the second respondent Philip Murgor, or SC MCI Arb as arbitrator in the Arbitral proceedings between the applicant and the first respondent herein in respect of the applicants person LR Number 15202 North Of Malindi River and to further inhibit registration of any dealing by the first respondent Kurawa Industries Limited in the applicant’s land parcel LR number 15202 North of Malindi Tana River; e. Pending the hearing and determination of this motion, there be a stay of the proceedings and all subsequent processes thereunder before the second respondent Arbitral Tribunal MLDELCLMISCE003/26-RLG/DF-19.01.26/FH-20.02.26/LH-16.06.26/DR 28.10.26F . Page 4

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(Philip K Murgor Sc MCI Arb, Arbitrator) adjudicating on the arbitration proceedings between the applicant and the first respondent herein in relation to the applicant’s parcel LR 15202 North of Malindi Tana River and until further orders of this court; f. Pending the hearing and determination of the Originating Summons herein, there be a stay of the proceedings and all subsequent processes thereunder before the second respondent Arbitral Tribunal Philip K Murgor MCIArb, Arbitrator adjudicating on the arbitration proceedings between the applicant and the first respondent here in the duration to the applicant’s parcel LR Number 15202 north of Malindi Tana River and until further orders of this court; g. The costs of this application abide the cause. 3. The grounds on which the Summons are brought are that the second respondent heard ex parte, the first respondent’s application dated 5th January 2026 online and he rendered the impugned ruling on the same date, 9th January 2026, and issued an order thereon on 13th January 2026 which order is now being sought to be set aside; the applicant was not heard at all prior to the issuance of the impugned ex parte order of 13th January 2026 by the second respondent; after that order was issued, the first respondent lodged an application dated 5th January 2026 before the arbitrator; MLDELCLMISCE003/26-RLG/DF-19.01.26/FH-20.02.26/LH-16.06.26/DR 28.10.26F . Page 5

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the said application was heard ex parte on 9th January 2026 and on the same day an ex parte mandatory injunction order was issued by the second respondent. It is maintained that in all those Arbitral proceedings, the applicant was not heard at all yet the order issued by the second respondent is adverse to the applicant’s proprietary rights over the suit property. 4. After all the foregoing events, by an application dated 14th January 2026 filed before the second respondent, the applicant sought to set aside the ex parte proceedings and the order dated 13 th January 2026. However, the applicant laments, the second respondent did not move with similar speed as he did in dealing with the first respondent's application before him dated 5 th January 2026. Instead, he issued directions on 16th January 2026 directing that the applicant’s application would be canvassed on 23 rd January 2026, hence opening a leeway for the unmitigated enforcement of his ex parte mandatory injunction order which then provoked the present proceedings. It is further stated as a ground that by the time the application dated 5th January 2026 was served via email and the ruling dated 9th January 2026 was issued, the applicant’s advocate’s offices were closed and this issue was made known to the second respondent and the first respondent’s advocates on 12 th January 2026; that in any event Section 57(g) of the interpretation and General Provisions Act Cap 2 excludes the period between 20 th MLDELCLMISCE003/26-RLG/DF-19.01.26/FH-20.02.26/LH-16.06.26/DR 28.10.26F . Page 6

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December and 6th January of each year from any consideration on any delay arising (I think here counsel meant to address the provisions of Order 50 Rule 4 of the Civil Procedure Rules which provides as follows: “4. When time does not run [Order 50, rule 4] Except where otherwise directed by a judge for reasons to be recorded in writing, the period between the twenty-first day of December in any year and the thirteenth day of January in the year next following, both days included, shall be omitted from any computation of time (whether under these Rules or any order of the court) for the amending, delivering or filing of any pleading or the doing of any other act: Provided that this rule shall not apply to any application in respect of a temporary injunction.” The applicant’s advocate’s office reopened on 12 th January 2026. The applicant avers that every party represented by a legal representative has to rely on the legal representative and cannot move in person unless so formalized. 5. The applicant’s advocates then sought from the second respondent an oral stay of execution via email on 13 th January 2026 after their resumption of services in their office. The second respondent advised them to lodge their appropriate application and failed to address even the issue of a temporary stay of execution. It is averred that the applicant sought the application of Section 19 of the Arbitration Act regarding treatment of all parties in an arbitration with equality and the presentation of a fair and reasonable opportunity to present their case to no avail. The applicant claims that the ex parte mandatory injunction order dated MLDELCLMISCE003/26-RLG/DF-19.01.26/FH-20.02.26/LH-16.06.26/DR 28.10.26F . Page 7

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13th January 2026 offends judicial public policy on the issuance of mandatory injunctions and the Arbitral Rules applicable; that no Case Management Conference under Rule 34 of the Chartered Institute of Arbitrators CIA Kenya Branch 2020 Rules took place notwithstanding that Rule 15 in the Third Schedule of the said Rules permits the Tribunal to bifurcate issues of jurisdiction and interim procedures and issue orders in furtherance of justice; that the scope and application of Rules applicable before the Arbitral Tribunal in the circumstances have not been agreed upon; that the Rules applicable on review of the order issued on 13 th January 2026 have not been clarified before the second respondent; that Rule 35 of the Chartered Institute Of Arbitrators Kenya Branch 2020 Rules permitted the Arbitral Tribunal to intervene in the manner sought by the applicant but it did not; that Rule 34(a) of the Rules was not applied in relation to the application dated 5th January 2026 in that the application was disposed of before the status hearing provided for under Rule 34(a). Consequently, no order could be made on the first respondent’s application dated 5th January 2026 absent an agreement of the parties. Further, the place of arbitration according to the Clause 20 of the lease agreement is to be in Mombasa yet the second respondent heard the application without according the applicant opportunity to be heard in that objection; that the second respondent also, while aware that the lease was to expire on 31 st MLDELCLMISCE003/26-RLG/DF-19.01.26/FH-20.02.26/LH-16.06.26/DR 28.10.26F . Page 8

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December 2025, irrationally and unfairly set the virtual preliminary meeting for Friday the 23rd January 2026 at 10:00 am; that the second respondent also lacks jurisdiction to issue any order outside of the provisions of Article 162 to the Constitution of Kenya as read with Section 13 of the Environment and Land Act; that the second respondent ought to have referred the first respondent’s application to the ELC pursuant to Section 182 of the Arbitration Act but he did not. Consequently, he usurped the Constitutional and statutory jurisdiction of the ELC and the ex parte order dated 13th January 2026 is null and void ab initio. 6. It is further urged that without a formalized lease between the applicant and the first respondent having been registered, the first respondent cannot legally remain on the suit property beyond 31 st December 2025 when the lease period expired; that the first respondent delayed to the very last minute of the 6_month window under the expired lease to invoke the Arbitral process and that indicates bad faith on its part; that the Arbitral procedures are outside the six months intended period for the resolution of the issue of extension of the lease; that equity aids the vigilant and not the indolent; that failure on the part of the Tribunal to hear the applicant will expose the applicant to unlawful execution process and loss of property; that intervention on the part of the Tribunal would not prejudice the respondent whatsoever since it has no MLDELCLMISCE003/26-RLG/DF-19.01.26/FH-20.02.26/LH-16.06.26/DR 28.10.26F . Page 9

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lease with the applicant the lease that had been there having lapsed on 31st December 2025. He stated that it is expedient that the ELC intervenes to issue the stay of execution of the second respondent’s ex parte order of 13th January 2026 and that a stay of the proceedings before the second respondent to issue, which will also bar the issuance of any further orders that may be at crosspurposes with this court’s orders and thus embarrass the proper administration of justice; that to permit the execution process of the impugned ex parte order to stand would be to sanction the oppressive and unconscionable process of execution against the applicant contrary to the provisions of Article 10 of the Constitution on the principles of Rule of law fairness and equality; that although Rule 36(b) of the Rules, the second respondent could have granted a stay of execution pending adjudication of the motion dated 14th January 2026, he never did so and thus the utility of the said Rule was not exploited notwithstanding the presence of sufficient reasons and the absence of bad faith; that the first respondent’s application dated 5th January 2026 before the arbitrator should be heard on merit in order to have the applicant be accorded an opportunity to be heard; that any execution processes permitted would be in violation of the applicant's fair trial rights under Article 25 (c) of the Constitution of Kenya. The applicant expresses its apprehension that unless prayer numbers 2 MLDELCLMISCE003/26-RLG/DF-19.01.26/FH-20.02.26/LH-16.06.26/DR 28.10.26F . Page 10

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and 3 in the Summons are granted, the first respondent will reenter the suit property even after the expiry of the lease and without any regard for protections afforded to the applicant, which will be a violation of the applicant’s right to property under Article 40 (3) of the Constitution; that the applicant is thus entitled to the ground of a stay of execution ex debito justitiae, in the applicant being granted an opportunity to pursue their defence before the arbitrary Tribunal according to Article 25(c) and Article 50(1) of the Constitution. The applicant maintains that it wishes to establish, inter alia, the following matters before the Arbitral Tribunal: that no statement of claim was ever filed by the first respondent to crystallize any basis for their arbitration and no jurisdiction exists to accord the respondent any reentry into the property upon the expiry of the lease, and no there was no order obtained by the claimant in the ELC pursuant to Section 7 or the Arbitration Act before the said lease expired; that the applicant held a legitimate expectation that the first respondent would abide by the terms of the lease and the late invocation of the Arbitral process in November 2025 after the applicant had communicated in June 2025 that they will not accept the extension which was an Act of bad faith; that the order issued on 13 th January 2026 was intended to have the first respondent re-enter the applicant’s property without any legal bases; that the first respondent’s construction of the term MLDELCLMISCE003/26-RLG/DF-19.01.26/FH-20.02.26/LH-16.06.26/DR 28.10.26F . Page 11

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“option to renew” in the expired list is erroneous as there was no automatic right to continue in the lease absent the applicant’s formal consent and formalized extension; that the absence of the term for which the option to renew was to be exercised is a pointer to the necessity for the consensus ad idem for the extension; that the applicant’s freedom to contract for an extended lease cannot be taken away in a manner anticipated by the second respondents’ order issued on 13th January 2026. THE RESPONSES The First Respondent’s Response 7. The first respondent filed Grounds of Opposition dated 2nd February 2026 as well as the replying affidavit of Mohamed Hussein Abdulkader, its director, dated 5th February 2026. 8. The gist of that response in the grounds of opposition and replying affidavit is that the Environment and Land Court lacks jurisdiction to assume or exercise jurisdiction over matters statutorily reserved to the High Court including supervisory and interventional powers under the Arbitration Act 1995; that the Originating Summons are fatally defective and incompetent for want of proper procedure in that Rule 2 of the Arbitration Rules 1997 mandatorily requires applications under Section 7 of the Arbitration Act to be brought by Chamber Summons in an existing suit and no such suit exists or has been instituted; the Originating Summons offends Section 72 of MLDELCLMISCE003/26-RLG/DF-19.01.26/FH-20.02.26/LH-16.06.26/DR 28.10.26F . Page 12

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the Arbitration Act in that the Arbitration Tribunal had already Ruled on the intervention sought and no court is allowed to interfere with a Tribunal’s rulings and findings which are conclusive; that the Originating Summons is incurably defective as it violates Section 10 of the Arbitration Act which expressly prohibits the court’s intervention in Arbitral matters except as allowed in Sections 7,17(2) and 35 of that Act in which case the Act permits only the High Court to intervene; that the Originating Summons are premature and contrary to Section 17 of the Arbitration Act as the jurisdiction of this court has been invoked while the application before the Arbitral Tribunal challenging the ruling remains pending, undetermined, thereby bypassing the statutory requirement for the Arbitral Tribunal to first Rule on questions of its jurisdiction and authority. 9. The Arbitral Tribunal acted squarely within its statutory mandate and Section 18 of the Arbitration Act in granting interim measures of protection and the applicant’s challenge is misconceived. 10. The applicant has improperly invoked Section 37 of the Arbitration Act which applies solely to proceedings resisting recognition or enforcement of an Arbitral award under Section 36 and that no such proceedings are before this court and then event recalls to Section 35 and 37 of the Act is vested in the High Court not in the ELC. MLDELCLMISCE003/26-RLG/DF-19.01.26/FH-20.02.26/LH-16.06.26/DR 28.10.26F . Page 13

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11. The Originating Summons improperly invites the court to determine substantive and merit-based issues including questions of lease renewal possession, equity and contractual interpretation which are exclusively in the province of the Arbitral Tribunal. The lease between the parties was to last 10 years and 6 months and was to expire on 31st December 2025 and expressly granted the 1 st respondent a contractual option to renew for a further five years and 3 months exercisable by written notice not later than 6 months prior to expiry. The parties did not require any further negotiation or mutual agreement upon valid exercise of the renewal option; that the applicant has at all times been ready willing and able to comply with the agreed renewal rent and all other lease terms; that in reliance on the terms of the lease and especially the guaranteed renew option the first respondent extensively developed permanent infrastructure for salt production on the premises at a substantial cost and with full knowledge and acquiescence of the applicant. Those developments are immovable site specific and commercially viable only through long-term occupation; that in strict compliance with the lease, the first respondent issued a written notice dated 16th June 2025 through its advocate formally exercising its option to renew the lease which notice was during received and acknowledged by the applicant’s advocates; that out of abundance of caution and before the expiry of the stipulated notice; the first MLDELCLMISCE003/26-RLG/DF-19.01.26/FH-20.02.26/LH-16.06.26/DR 28.10.26F . Page 14

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respondent issued a further written notice dated 27 th June 2025 confirming its intention to renew the lease and the said further notice was received by the applicant; that by a letter dated 7 th July 2025, the applicant however declined to honour the renewal and purported to treat the lease as expired. By a letter dated 19 th September 2025, the respondent called upon the applicant to withdraw its refusal to renew the lease and to confirm the proposed renewal in writing failing which dispute resolution proceedings would result. However, by a letter dated 29 th September 2025, the applicant maintained its refusal and asserted that renew of lease was discretional or subject to mutual consent, which stance, according to the respondent, was contrary to the express terms of the lease. 12. A dispute having arisen, the first respondent invoked the arbitration clause and issued a notice of dispute and reference to arbitration dated 30th September 2025. The parties failed to agree on an arbitrator and upon reference to him, the Chairman of the Chartered Institute of Arbitrators Kenya Branch appointed Philip K. Murgor as the sole arbitrator, and the latter accepted their appointment and convened a preliminary meeting scheduled for 23rd January 2026 vide a letter dated 15 th December 2025. However, notwithstanding the exercise of the renewal option by the respondent, the applicant threatened to deny the respondent MLDELCLMISCE003/26-RLG/DF-19.01.26/FH-20.02.26/LH-16.06.26/DR 28.10.26F . Page 15

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access to the premises with effect from 31 st December 2025. On 2nd January 2026 the applicant’s advocates asserted that the lease had lapsed by effluxion of time and threatened re-entry and eviction notwithstanding the exercise of the option to renew and the ongoing arbitration. On 3rd January 2026 the applicant’s directors and some weapon wielding persons stormed the premises and attempted an eviction of the first respondent’s personnel and the matter was reported to the police. The first respondent filed and served the application dated 5th January 2026 whose determination, ruling, and resultant orders are the subject of these proceedings. That application was served on the applicant advocates promptly and they were directed by the arbitrator to file a response within stipulated timelines and were accorded a full and fair opportunity to be heard, which opportunity they failed to utilize. An affidavit of service by the first respondent’s advocate was filed as proof service. The 1st respondent averred that the application was thus heard fairly and transparently and procedurally and a ruling delivered on 9th January 2026 after due consideration of the material before the Tribunal and without any procedural impropriety or denial of the right to be heard; that it is not correct that the applicant’s advocates were closed from 18 th December 2025 until 12th January 2026; that for instance, on 2 nd January 2026 the first respondent received an email from the applicant’s advocate in MLDELCLMISCE003/26-RLG/DF-19.01.26/FH-20.02.26/LH-16.06.26/DR 28.10.26F . Page 16

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which eviction from the suit land was expressly threatened. Allegations regarding lack of personal service of the application dated 5th January 2026 on the applicant is unfounded; that by their letter dated 13th November 2025, the applicant’s advocates had requested that all correspondence and pleadings be channelled through them; that there was no requirement for any additional or special service save that which had been accepted between the parties before the Tribunal; that the invoking of the arbitrator’s jurisdiction under Section 18 of the Arbitration Act Number 4 of 1995 for the grant of interim measures of protection as may be necessary to preserve the subject matter of the arbitration and to prevent frustration of the Arbitral process was lawful and the second respondent acted squarely within its statutory mandate to issue interim protective orders in the ruling delivered on 9 th January 2026. Thereafter, on the 14th January 2026, the applicant lodged an application dated 14th January 2026 before the second respondent seeking to set aside the said ruling and orders. Upon receipt of that application, the arbitrator issued directions on 16 th January 2026 for the hearing and disposal thereof and therefore the applicant was not denied and opportunity to be heard. The first respondent agreed that the scope and applicability of any institutional arbitration Rules has not yet been agreed upon by the parties and was for discussion at the preliminary meeting scheduled for 23 rd January 2026 but MLDELCLMISCE003/26-RLG/DF-19.01.26/FH-20.02.26/LH-16.06.26/DR 28.10.26F . Page 17

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even the CIArb Kenya Branch Rules 2020 expressly permit applications for interim measures of protection at any stage of the Arbitral procedures including prior to the Status Hearing; that the applicant’s contention that such applications may only be heard or determined at a Status Hearing is erroneous and legally untenable; that the applicant has not suffered any prejudice as a consequence of the ruling delivered on 9th January 2026 and the orders issued on 30th January 2026 and those orders were absolutely necessary as the period preceding their issues was characterized by brazen lawlessness, intimidation and violent conduct directed at the first respondents lawful operations at the premises; that acts of hostility against the security personnel lawfully deployed to guard the premises and maintain order were witnessed in an attempt to intimidate them and disable them from their work, and those incidents were reported to the police; that therefore the orders of 13th January 2026 were therefore not only justified but served to restore law, order and safety at the premises and to restrain further criminal conduct; that it is the conduct of the applicant that necessitated urgent judicial intervention and the applicant should therefore not complain; that any setting aside of the interim orders would expose the first respondent to further violence and the destruction of property thereby occasion increased and irreparable prejudice; that the first respondent has always strictly comply with a MLDELCLMISCE003/26-RLG/DF-19.01.26/FH-20.02.26/LH-16.06.26/DR 28.10.26F . Page 18

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dispute resolution mechanisms provided for in the lease; that at some point, parties engaged in negotiations which the first respondent participated in out of good faith, but no resolution was arrived at solely due to the applicant’s stance in the matter and it was only there after that the dispute was formally referred to arbitration; that any delay was occasioned entirely by the applicant; that the interim orders issued by the arbitrator are fully consistent with the express terms of the lease which stipulate the renewal period and the applicable rent pair and the orders do not impose any new obligations beyond what was already contractually agreed, and the first respondents rights crystallized upon issuance of the renewal notices; that the orders are purely preservatory in nature and are intended to preserve the subject matter of the dispute pending the determination of the arbitration without which they arbitration proceedings would be rendered nugatory; that they do not confirm any advantage on the 1st respondent or prejudice the merits of the dispute in any manner whatsoever, and their sole objective is to ensure that the subject matter of the arbitration is not altered, wasted, interfered with, or rendered irreversibly prejudiced before the Tribunal has had an opportunity to fully hear and determine the parties’ respective claims; that they are necessary, proportionate and reasonable in the circumstances and represent a measured exercise of Arbitral Tribunal statutory powers MLDELCLMISCE003/26-RLG/DF-19.01.26/FH-20.02.26/LH-16.06.26/DR 28.10.26F . Page 19

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aimed at preserving the efficacy integrity and usefulness of the arbitration when ensuring that neither party suffers parable prejudice pending the final determination of the dispute. The respondent prays that the Summons and the Originating Summons dated 16th January 2026 be dismissed with costs. The Second Respondent’s Response 13. The second respondent filed an affidavit dated 17 th February 2026 in response to the Summons and Originating Summons. He pointed out that this matter is scheduled for hearing on 20 th February 2026 before this court. He stated that the Summons and the Originating Summons concern matters that are the subject of the pending arbitration between the applicant and the first respondent before him and that he finds it injudicious to participate in the court proceedings on matters that touch on the substantive dispute and procedural questions that may require determination in the course of the arbitration should it resume before him; that such participation would risk compromising the impartiality that is fundamental to the role of arbitrator; that the accusations of bias or unfairness leveled against him are baseless; that the ruling dated 9th January 2026 is clear regarding the circumstances that led to the issues of the orders of the Tribunal dated 13th January 2026. The Applicant’s Supplementary Affidavit Dated 16 th February 2026 MLDELCLMISCE003/26-RLG/DF-19.01.26/FH-20.02.26/LH-16.06.26/DR 28.10.26F . Page 20

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14. A supplementary affidavit in support of the Originating Summons and Summons was filed dated 16th February 2026. It is sworn by Aden Gulied Hassan. The deponent faulted the arbitrator for failing to respond to the matters in the supporting affidavit of the applicant; he stated that no statement of claim has been lodged before the arbitrator to date. The deponent maintained at the timelines ordered by the second respondent for the applicant to respond deprived the applicant of an opportunity to be heard before the ruling of 9th January 2026 was issued; that the undisputed core dispute is about the use of the suit land and it arose from a lease regarding that land and only the ELC can have jurisdiction, as constitutionally envisaged, to entertain any dispute surrounding land or land use; that the lease document states that the use of the land by the respondent is solely for the extraction of salt; that the Originating Summons itself is a suit upon which the Summons can be brought and this is borne out by Section 2 of the Civil Procedure Act and Rule 3(1) of the Arbitration Rules. The deponent denied that the respondent had engaged in violent attacks against the first respondent's personnel and maintains that no evidence has been brought to that effect; that no new infrastructure on site have been effected on the suit land by the first respondent and the first respondent had only taken over and already developed suit property from the previous tenant who was MLDELCLMISCE003/26-RLG/DF-19.01.26/FH-20.02.26/LH-16.06.26/DR 28.10.26F . Page 21

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known as Afro Salt Limited; that the first respondent’s negligence and abandonment of the site led to encroachment by prosopis juriflora; that in any event, the first respondent had neglected to utilize the site; that there are no guards employed or contracted by the first respondent on the site and no evidence of such contracting, and only an operator of a pump is present on site to pump water into the ponds; that it is the first respondent who has abused the arbitral procedures to force itself on the suit land well after the lease period ending on the 31st December 2025 lapsed; that the second respondent has failed to respond to claims of bias against the applicant and other claims made against him, yet the burden of proving fair treatment shifted to the Tribunal the moment the proceedings were lodged before this court and service on the respondent was ordered; that the applicant has commissioned Valuation Reports which demonstrate the failure of the first respondent to live up to the contractual terms under the now expired lease and the first respondent does not see how it can be compelled by the second respondent to continue relating with the first respondent in breach of its freedom of contract; that the first respondent’s production capacity of salt was below the contracted volumes and the lower production volumes had turn adversely impacted on the applicant's royalties due; that an expert report commissioned by the applicant stated that the 1 st respondent’s MLDELCLMISCE003/26-RLG/DF-19.01.26/FH-20.02.26/LH-16.06.26/DR 28.10.26F . Page 22

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declining extraction of salt from the suit premises could not be sustained. ANALYSIS AND DETERMINATION 15. The parties in the present case have gone to great lengths to state their case or defence as the case may be. The dispute raised by the present summons revolves around the issue of a fair hearing Article 25(c) and Article 50(1) of the Constitution. The case of the applicant is that arbitration proceedings were commenced at the instance of the 1st respondent before the 2nd respondent. The 2nd respondent granted what the applicant terms as an “ex parte mandatory injunction order” dated 13th January 2026 in favour of the 1st respondent. It is the case of the applicant that the mandatory injunction order adversely affects the applicant’s proprietary rights. 16. The applicant went before the 2nd respondent and unsuccessfully sought a review of that injunctive order and has hence resorted to this court to seek, vide an Originating Summons, the setting aside of the ruling of the 2 nd respondent, an inhibition order inhibiting the registration at the Lands registry of the Tribunal’s order issued on 13th January 2026 and an order compelling its registration by the Land Registrar, a declaration that the 2nd respondent lacked jurisdiction to issue such an order based on ex parte proceedings; a declaration that the lease between the parties being one stipulating MLDELCLMISCE003/26-RLG/DF-19.01.26/FH-20.02.26/LH-16.06.26/DR 28.10.26F . Page 23

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it would expire on 31/12/2025 could not be automatically be renewed without mutual consent of the parties and registration under Section 44 of the Land Registration Act, and a declaration that the Tribunal exceeded its mandate acted unfairly towards the applicant in issuing the injunctive order after an ex parte hearing of the application dated 5/1/2026, failing to respond to emails from the applicant, and failing to expeditiously deal with the applicant’s applications for review dated 14/1/2026 (one which was merely an application for amendment of the other on minor details on dates of expiry of lease.) 17. A Summons was filed alongside the Originating Summons seeking temporary orders of stay of execution or further execution of the Tribunal order and stay of the Tribunal proceedings pending the hearing and determination of the Originating Summons or further orders of the ELC, and to inhibit the registration of any dealing on the suit title. 18. The grounds upon which the Summons is brought are that Section 7(1) of the Arbitration Act envisages an application by a party, before or during arbitral proceedings; an interim measure of protection from the High Court; that under Section 37 of the Act, an arbitral award (which includes an interim arbitral award as defined by Section 3 may be refused if a party to the arbitration was unable to present his case; that the Tribunal heard the 1 st MLDELCLMISCE003/26-RLG/DF-19.01.26/FH-20.02.26/LH-16.06.26/DR 28.10.26F . Page 24

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respondent ex parte on its application dated 5/1/2026 during a time when the Applicant’s advocate’s offices were closed for Christmas vacation on 9/1/26, and rendered a ruling on the same date without hearing the applicant and then failed to entertain with expedition the applicant’s review application dated 14/1/2026, and gave it a far off hearing date; that an attempt by the applicant’s advocate to secure a stay of execution by email failed, and no other intervention otherwise possible under Rule 36(b) was granted by the Tribunal to avert injury to the applicant; that it is judicial policy to avoid issuance of mandatory injunction orders and ex parte mandatory injunction orders and the Tribunal lacked jurisdiction to issue such orders; that the scope and application of Rules applicable before the tribunal had not been settled and it was unclear on which Rules the impugned order was issued; that the applicant expected that the application leading to the impugned ruling would be disposed of after the Status Hearing and no order could be made before the Status Hearing under Rule 34(a) of the Rules; that the lease expiry date having been 31/12/2025, the 1st respondent could not legally remain on the premises beyond that date; that the arbitral proceedings are being conducted outside the 6 month period intended for resolution of the issue of extension of the lease. It is averred that the applicant ought to be granted an opportunity to be heard on the motion that gave rise to the impugned orders. MLDELCLMISCE003/26-RLG/DF-19.01.26/FH-20.02.26/LH-16.06.26/DR 28.10.26F . Page 25

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19. It was averred that as at the date of the summons, the 1 st respondent had not filed the interim mandatory injunction order under Rule 4 of the Arbitration Rules (LN 58 /97), meaning that the said order has not been effected and no prejudice would be occasioned to the 1st respondent of the orders sought in the summons and Originating Summons were granted to pave the way for the applicant to be heard on merits; that this court has supervisory jurisdiction over the Tribunal under Article 165(6). 20. The 2nd respondent declined to participate in these proceedings since, according to it, the substantive matters raised were already before it for determination. 21. However, the principal grounds of opposition raised by the 1 st respondent and which this court ought to determine on a preliminary basis are as follows: a. That the Environment and Land Court lacks jurisdiction to assume or exercise jurisdiction over matters statutorily reserved to the High Court including supervisory and interventional powers under the Arbitration Act 1995; b. That the Arbitral Tribunal has already Ruled on the interim measures sought and under Sections 7,17(2) and 35 of the Act, no court is allowed to interfere with the Tribunals ruling and findings which are, in the 1 st respondent’s eyes, MLDELCLMISCE003/26-RLG/DF-19.01.26/FH-20.02.26/LH-16.06.26/DR 28.10.26F . Page 26

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conclusive; that in any event where those provisions allow intervention, such is reserved for the High Court; c. The Originating Summons is premature in that contrary to Section 17 of the Act, the jurisdiction of the court has been invoked while the application dated 14/1/2026 remains pending and undetermined before the Tribunal, and the OS thus pre-empts the statutory requirement that the tribunal do first Rule on its jurisdiction; d. That the invocation of Section 37 of the Act is misconceived since there is no proceeding before court for recognition or enforcement of an arbitral award, and that in any event the objection that the recourse under Sections 35-37 of the Act is vested exclusively in the High Court and not the ELC still applies; e. That the OS calls on this court to determine substantive merits-based issues on inter alia, lease renewal, possession, equity, and contractual interpretation which are exclusively within the jurisdiction of the Tribunal. 22. In summary, after cutting through much of the dense foliage in the parties’ respective filings, the preliminary legal defences raised by the 1st respondent to both the application and the O.S., and which the applicant has answered to, are threefold as follows: a. This court lacks jurisdiction to hear and determine the OS and should allow the High Court do so; MLDELCLMISCE003/26-RLG/DF-19.01.26/FH-20.02.26/LH-16.06.26/DR 28.10.26F . Page 27

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b. These are parallel proceedings to the application dated 14th January 2026 pending before the Tribunal; c. Section 37 of the Act is inapplicable since there is no proceeding before court for recognition or enforcement of an arbitral award. 23. Regarding the first defence raised regarding jurisdiction, this court notes that in Phoenix of E.A. Assurance Company Limited vs. S. M. Thiga t/a Newspaper Service [2019] eKLR the Court of Appeal stated as follows: “Jurisdiction is primordial in every suit. It has to be there when the suit is filed in the first place. If a suit is field without jurisdiction, the only remedy is to withdraw it and file a complaint one in the Court seized of jurisdiction. A suit field devoid of jurisdiction is dead on arrival and cannot be remedied. Without jurisdiction, the Court cannot confer jurisdiction to itself.” 24. The jurisdiction of the environment and land court is conferred on it by Article 162(2)(b) and Section 13 of the Environment and Land Court Act. 25. Article 162(2)(b) provides as follows: “(2) Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to — (a)……. (b)the environment and the use and occupation of, and title to, land.” 26. Section 13 of the Environment and Land Court Act provides as follows: 13. Jurisdiction of the Court (1) The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and MLDELCLMISCE003/26-RLG/DF-19.01.26/FH-20.02.26/LH-16.06.26/DR 28.10.26F . Page 28

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with the provisions of this Act or any other law applicable in Kenya relating to environment and land. (2) 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, choses in action or other instruments granting any enforceable interests in land; and (e)any other dispute relating to environment and land. (3) Nothing in this Act shall preclude the Court from hearing and determining applications for redress of a denial, violation or infringement of, or threat to, rights or fundamental freedom relating to a clean and healthy environment under Articles 42, 69 and 70 of the Constitution. (4) In addition to the matters referred to in subsections (1) and (2), the Court shall exercise appellate jurisdiction over the decisions of subordinate courts or local tribunals in respect of matters falling within the jurisdiction of the Court. (5) In exercise of its jurisdiction under this Act, the Court shall have power to make any order and grant any relief as the Court deems fit and just, including— (a)interim or permanent preservation orders including injunctions; (b)prerogative orders; (c)award of damages; (d)compensation; (e)specific performance; (f)restitution; (g)declaration; or (h)costs. 27. This court has found it necessary to apply the “dominant issue” test established in Co-operative Bank of Kenya Limited v Njuguna & 5 others [2017] KECA 79 (KLR) where the Court of Appeal stated held as follows: MLDELCLMISCE003/26-RLG/DF-19.01.26/FH-20.02.26/LH-16.06.26/DR 28.10.26F . Page 29

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“However, it bears repeating that the cause of action herein was never the charge (instrument) but the amounts due and owing thereunder. Neither the charge instrument nor the creation of an enforceable interest thereunder, were disputed. The main questions to be determined were the tabulation of the sums owing and whether statutory notices had issued prior to the attempted statutory sale. Furthermore, the jurisdiction of the ELC to deal with disputes relating to contracts under Section 13 of the ELC Act ought to be understood within the context of the court’s jurisdiction to deal with disputes connected to ‘use’ of land as discussed herein above. Such contracts, in our view, ought to be incidental to the ‘use’ of land” …” 28. The present matter arises from a lease between the parties. It is correct that the proximate cause of the applicant’s dissatisfaction that galvanized it into rushing to this court for succour is the perceived procedural defect in the manner in which the impugned order was obtained, and the further perception that allowing the order to remain in force would be prejudicial to its interests. However, it is clear that the enforcement of the impugned order would have direct consequences in rem. The ultimate effect of the order, if undisturbed by this court, would be preservatory, in that the eviction of the respondent from the suit premises would be impossible pending the determination of the arbitral proceedings at the Tribunal. And perchance the present summons is granted, the effect desired by the present applicant is the deeming of there not to be a running lease or an extension thereof with the effect that the 1st respondent may be deemed to be having no rights to remain MLDELCLMISCE003/26-RLG/DF-19.01.26/FH-20.02.26/LH-16.06.26/DR 28.10.26F . Page 30

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in possession of the suit property during, first, the hearing and determination of the Originating Summons, and thereafter, perchance the OS is found meritorious, during the period it will take to determine the arbitration. 29. The foregoing analysis brings this court to the ineluctable conclusion that besides the perceived procedural mishap that may have taken place before the tribunal leading to an ex parte hearing and issuance of the impugned order, the matter before it concerns possession of land, lease renewal with regard to that land and the appropriate interpretation of the lease. 30. In the light of the foregoing, it does not take much to persuade this court that the provisions of the Arbitration Act referring to the High Court should be interpreted in a manner that grants this court, rather than the High Court, jurisdiction to hear and determine the present Summons and Originating Summons in so far as it relates to possession of land, lease renewal with regard to that land and the appropriate interpretation of the lease. The foregoing analysis demonstrates that the present matter is one to which Article 162(2)(b) of the Constitution of Kenya and Section 13(1) of the Environment and Land Court Act apply. Consequently, I decline to hold that this court lacks jurisdiction to hear and determine the Summons and the OS solely on the basis of the express reference to the High Court made in the Arbitration Act. MLDELCLMISCE003/26-RLG/DF-19.01.26/FH-20.02.26/LH-16.06.26/DR 28.10.26F . Page 31

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31. Regarding the contention that the OS and the Summons are parallel proceedings relative to the application dated 14 th January 2026 which is pending before the Tribunal, I find no denial expressed by the present applicant that such is the case. No averment has been made that the application dated 14 th January 2026 has been withdrawn or concluded. In fact the 2 nd respondent has declined to participate in the present proceedings before this court on the basis that both the Summons and the OS concern matters that are the subject of the pending arbitration before him of which he is the sole arbitrator, and that it would be injudicious for him to participate herein as the matters before this court touch on the substantive dispute, issues and procedural questions that may require determination in the course of the arbitration before him should it resume before him. The only issue he has substantively answered is that of bias levelled against him, which answer is in this court’s view justified since in any event it is within his personal knowledge as to whether or not he was biased. He states that to delve into more would compromise his impartiality in the arbitration should it resume before him. He confirmed that the arbitral proceedings remained stayed pending the determination of the present matter before this court. This court notes that the only lamentation of the present applicant in his replying affidavit dated 16th February 2026 is that the second respondent has failed to MLDELCLMISCE003/26-RLG/DF-19.01.26/FH-20.02.26/LH-16.06.26/DR 28.10.26F . Page 32

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respond to claims of bias against the applicant and other claims made against him, yet the burden of proving fair treatment shifted to the Tribunal the moment the proceedings were lodged before this court and service on the respondent was ordered. Indubitably then, the application dated 14th February 2026 still pends before the Arbitral Tribunal. The grounds upon which that application is made are similar to those upon which the Summons and Originating Summons herein have been brought. 32. This court is mindful of the constitutional provisions and the legislative provisions invoked by the present applicant as to its fundamental right to be heard on the merits prior to delivery of a ruling and issuance of an order that affects its substantive proprietary rights in land under Article 40 of the Constitution but the court is also alive to the impropriety of entertaining proceedings before it where a replica of those proceedings is pending before a body patently with jurisdiction under the law to handle them, including the jurisdiction to pronounce on whether it is possessed of jurisdiction on the dispute before it, especially where this court is being asked to exercise its supervisory jurisdiction over that body. The essential question that arises herein is whether it is prudent for this court to purport to supervise the exercise of power by the Arbitral Tribunal where it clearly has neither granted nor declined the application for setting aside the orders it made on 9/1/2026, and MLDELCLMISCE003/26-RLG/DF-19.01.26/FH-20.02.26/LH-16.06.26/DR 28.10.26F . Page 33

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probably in so doing set aside the said orders while the present applicant’s application before the tribunal, if argued, could have achieved the same effect. In stating that, this court is aware that the grounds herein advanced for the failure to attend the hearing on 9/9/2026 and for the position that the Arbitral Tribunal acted ultra vires, illegally, unreasonably and with manifest bias against the present applicant are the same grounds that support the application for setting aside the impugned ruling and order of the Arbitral Tribunal. It is that application currently pending before the arbitral tribunal that ought to have been exhausted prior to the present applicant approaching this court. Consequently, in view of the pendency of the application dated 14/1/2026, undetermined, before the Arbitral Tribunal, this court has no recourse but to find that the institution of both the Originating Summons and the Summons is an abuse of the court process, not on the ground of malice, but solely for the reason that it paradoxically stymies the efficient and effective administration of justice as per Muchanga Investments Ltd V Safaris Unlimited (Africa) Ltd & 2 Others [2009] KECA 453 (KLR) through the ensuing multiplicity of action on the same matter between the same parties, and is thus of the species that should be discouraged. 33. Finally, the issue arrives for determination as to whether Section 37 of the Act is inapplicable and available to the present MLDELCLMISCE003/26-RLG/DF-19.01.26/FH-20.02.26/LH-16.06.26/DR 28.10.26F . Page 34

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applicant where there is no proceeding before court for recognition or enforcement of an arbitral award. The present applicant has relied on Section 37(1) (a) (iii) and (b) of the Act. The provisions of Section 37(1) (a) and (b) read as follows: “37. Grounds for refusal of recognition or enforcement (1) The recognition or enforcement of an arbitral award, irrespective of the state in which it was made, may be refused only— (a)at the request of the party against whom it is invoked, if that party furnishes to the High Court proof that— (i)a party to the arbitration agreement was under some incapacity; or (ii)the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication of that law, under the law of the state where the arbitral award was made; (iii)the party against whom the arbitral award is invoked was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or (iv)the arbitral award deals with a dispute not contemplated by or not falling within the terms of the reference to arbitration, or it contains decisions on matters beyond the scope of the reference to arbitration, provided that if the decisions on matters referred to arbitration can be separated from those not so referred, that part of the arbitral award which contains decisions on matters referred to arbitration may be recognised and enforced; or (v)the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or, failing any agreement by the parties, was not in accordance with the law of the state where the arbitration took place; or (vi)the arbitral award has not yet become binding on the parties or has been set aside or suspended by a court of the state in which, or under the law of which, that arbitral award was made; or (vii)the making of the arbitral award was induced or affected by fraud, bribery, corruption or undue influence; MLDELCLMISCE003/26-RLG/DF-19.01.26/FH-20.02.26/LH-16.06.26/DR 28.10.26F . Page 35

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(b) 34. if the High Court finds that— (i)the subject-matter of the dispute is not capable of settlement by arbitration under the law of Kenya; or (ii)the recognition or enforcement of the arbitral award would be contrary to the public policy of Kenya. Mr. Kinyanjui for the present applicant has assiduously worked to persuade the court that the provisions above are applicable to his client’s present predicament, drawing the attention of the court to the definition in Section 2 of the Act of the term "arbitral award" to mean “any award of an arbitral tribunal and includes an interim arbitral award.” However, what may assist the court to interpret the term within the appropriate context is the fact that it is used after a Part dealing with finalization of the arbitration process that is Part V which is titled “ARBITRAL AWARD AND TERMINATION OF ARBITRAL PROCEEDINGS”. Section 37 itself is in Part VII which is titled “RECOGNITION AND ENFORCEMENT OF AWARDS,” which follows Part VI which is titled “RECOURSE TO HIGH COURT AGAINST ARBITRAL AWARD.” 35. Immediately before Section 37, Section 36 reads as follows: “36. Recognition and enforcement of awards (1)A domestic arbitral award shall be recognized as binding and, upon application in writing to the High Court, shall be enforced subject to this Section and Section 37. (2) An international arbitration award shall be recognised as binding and enforced in accordance to the provisions of the New York Convention or any other convention to which Kenya is signatory and relating to arbitral awards. MLDELCLMISCE003/26-RLG/DF-19.01.26/FH-20.02.26/LH-16.06.26/DR 28.10.26F . Page 36

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(3) Unless the High Court otherwise orders, the party relying on an arbitral award or applying for its enforcement must furnish— (a)the original arbitral award or a duly certified copy of it; and (b)the original arbitration agreement or a duly certified copy of it. (4) If the arbitral award or arbitration agreement is not made in the English language, the party shall furnish a duly certified translation of it into the English language. (5) In this Section, the expression "New York Convention" means the Convention on the Recognition and Enforcement of Foreign Arbitral Awards adopted by the United Nations General Assembly in New York on the 10th June, 1958, and acceded to by Kenya on the 10 th February, 1989, with a reciprocity reservation.” 36. This court fails to see how it can be that the Section 36 can invoke international conventions for the purpose of putting right slight procedural defects before a final award is arrived at, as is the case in the present dispute before it. That section deals with the final arbitration award, and consequently it is the case that Section 37 has been enacted by the legislature with the final arbitration award in mind rather than minor procedural mishap. In view of the foregoing, this court is persuaded by the 1 st respondent’s argument that Section 37 is inapplicable in respect of the application to set aside the ruling and order of the court made prior to the final determination award of the arbitral tribunal. 37. Though this court has found in favour of the applicant in the first objection, its findings on the second and third grounds of objection are not favourable to the applicant. MLDELCLMISCE003/26-RLG/DF-19.01.26/FH-20.02.26/LH-16.06.26/DR 28.10.26F . Page 37

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38. Consequently, the Originating Summons and the Summons both dated 16th January 2026 are lacking in merit and the same are struck out with costs to the respondents. Dated, signed and delivered at Malindi on this 28th day of September, 2026. HON. JUSTICE MWANGI NJOROGE ENVIRONMENT AND LAND COURT, MALINDI. MLDELCLMISCE003/26-RLG/DF-19.01.26/FH-20.02.26/LH-16.06.26/DR 28.10.26F . Page 38

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