High Court 7478 of 2026

perform its obligations under the aforesaid Sale Agreement. It is that application that has attracted a Notice of Preliminary Objection filed by the Respondent. The Preliminary Objection 3. The Respondent filed a Notice of Preliminary Objection (PO) dated 6.02.2026 challenging the competency of both the Motion and the Plaint in which the following grounds were raised: 1. THAT the Application dated 16th January 2026 is in its entirety defective, bad in law and in blatant violation of the doctrine of exhaustion. 2. THAT the parties to this suit entered into an agreement which expressly provides for disputes to be resolved by way of Arbitration. 3. THAT parties have not exhausted the provided channels before seeking judicial recourse. 4. THAT in light of the foregoing, this Honourable Court therefore lacks the jurisdiction to hear and determine the Plaintiffs’ Application and the entire suit. 5. THAT the Application and the suit in its entirety are therefore incompetent based on the court’s lack of jurisdiction and the same ought to be struck out and/or dismissed with costs. MISC. CIVIL APPLICATION NO. E035 OF 2026 PAGE 2

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6. THAT in view of the foregoing, the Application and plaint as drawn and filed herein is tantamount to an abuse of the Court Process and is ripe to be struck out in limine with costs. 4. The PO was canvassed through written submissions. In support of the PO, the Respondent relied on the decisions in Muruthi & 3 others v Thiongo & another [2025] KEHC 3423 (KLR) and Abira v Maxcure Hospitals Limited [2024] KEHC 2992 (KLR) where the respective courts held that a PO challenging the jurisdiction of a court to entertain a matter is valid so long as it was raised at the earliest opportunity upon institution of the claim in question and prior to the opposing party filing his or her pleadings and submitted that the instant PO is properly and timeously before this court. 5. The Respondent submitted that the present claim and Motion are fatally defective and incompetent before this court, under the doctrine of exhaustion, pursuant to the case of Coffee Management Services Limited v New Murarandia Farmers Cooperative Society [2025] KEHC 11035 (KLR) and the case of Lilande v Heri Development Limited & 2 others [2024] KEELC 13261 MISC. CIVIL APPLICATION NO. E035 OF 2026 PAGE 3

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(KLR) where the respective courts reasoned that where an alternative dispute mechanism exists and is agreed upon between the parties, the same ought to be exhausted before the jurisdiction of the courts can be invoked. 6. It is the Respondent’s argument that pursuant to the Sale Agreement executed between the parties herein, any dispute arising therefrom ought to have been referred for arbitration; that the Applicants are therefore bound by the terms of the said Agreement and the dispute resolution mechanisms agreed upon thereunder, as was held in the case of Nyakwara v Trivitron Healthcare Africa [Kenya] Limited [2024] KEELRC 1460 (KLR). 7. It is the Respondent’s submission that the dispute herein ought to have been taken to arbitration and this court’s jurisdiction only invoked upon conclusion of the arbitration process and that no prejudice will befall the Applicants if the matter first proceeds for arbitration. 8. It is further argued by the Respondent that this court has both a legal duty to enforce the arbitration clause stipulated under the Sale Agreement and a constitutional mandate to promote arbitration as an alternative mechanism for dispute MISC. CIVIL APPLICATION NO. E035 OF 2026 PAGE 4

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resolution. The Respondent relied on the cited case of Lilande v Heri Development Limited & 2 others (supra) where the court stressed that the choice of forum settled between the parties to a contract precludes the court from exercising jurisdiction at the first instance. 9. The Respondent has urged that this court’s jurisdiction, having been improperly invoked, both the Motion and the Applicants’ claim ought to be struck out for being incompetent, with costs. 10. The Applicants have opposed the PO whilst simultaneously maintaining the competency of the suit. In their joint submissions, the Applicants have argued that a party who is in breach of a contractual agreement cannot subsequently be heard to seek protection from the terms of the same contract. In this regard, reliance has been placed on the case of Kenya Airways Limited v Satwant Singh Flora [2013] eKLR and the case of Mistry Amar Singh v Serwano Kulubya [1963] EA 408 where the Court of Appeal in both instances, reaffirmed the above to be the legal position. MISC. CIVIL APPLICATION NO. E035 OF 2026 PAGE 5

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11. On the subject of the arbitration clause under the Sale Agreement, it is the Applicants’ joint submission that the same is now inoperative and incapable of being performed, thereby causing the Motion and present claim to be properly before this court. The Applicants have relied on the decisions in Safaricom Limited v Ocean View Beach Hotel Limited & 2 others [2010] KECA 346 (KLR) and Mt. Kenya University v Step Up Holdfing (K) Ltd [2018] eKLR to the effect that a court can assume jurisdiction where it is established that an arbitration clause is inoperative or incapable of performance. 12. On the doctrine of exhaustion, the Applicants have argued that the existence of an arbitration clause does not automatically oust the jurisdiction of a court, since a party is permitted to seek interim reliefs from the High Court, pursuant to Section 7(1) of the Arbitration Act; that Clause 18(iii) of the Sale Agreement provides that notwithstanding the existence of an arbitration clause, either party to the Agreement may seek preliminary injunctive relief or conservatory measures from a competent court, pending determination of the arbitral proceedings. MISC. CIVIL APPLICATION NO. E035 OF 2026 PAGE 6

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13. The Applicants have argued, further, that a PO raised by the Respondent does not constitute pure points of law, despite the requirement set out in the renowned case of Mukisa Biscuit Company v West End Distributors Limited (1969) EA 696 that a PO ought to raise pure points of law and that in the circumstances, the instant PO ought to be dismissed and the Motion be permitted to proceed for hearing on its merits. Analysis and Determination 14. I have carefully considered the PO and the rival submissions in respect thereof, as well as the authorities relied upon by the parties. For starters, a PO must meet the threshold set out the case of Mukisa Biscuit Company v West End Distributors Limited (1969) EA 696 that a PO must raise a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct and that a PO cannot be raised in any fact that has to be ascertained or if what is sought is the exercise of judicial discretion.” MISC. CIVIL APPLICATION NO. E035 OF 2026 PAGE 7

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15. Further, the Supreme Court in Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 others [2015] eKLR stated as follows in respect of a PO: “It is quite clear that a preliminary objection should be founded upon a settled and crisp point of law, to the intent that its application to undisputed facts, leads to but one conclusion: that the facts are incompatible with that point of law.” 16.In the present case, the Respondent is challenging the jurisdiction of this court to entertain both the Applicants’ Motion and claim. There is no doubt that the question of jurisdiction constitutes a pertinent issue of law, thereby making the PO competently before this court. Indeed, the issue of jurisdiction is one of the examples given by the Court (Law, JA) the Mukisa Biscuits case as forming a PO when he stated that: “So far as I am aware, a preliminary objection consists of point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the MISC. CIVIL APPLICATION NO. E035 OF 2026 PAGE 8

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contract giving rise to the suit to refer the dispute to arbitration.” 17.The reasons behind the instant PO is the claim by the Defendant that the Plaintiff has not exhausted the available alternative dispute resolution mechanisms specified in the Sale Agreement entered into between the parties. 18.The doctrine of exhaustion is defined in Black’s Law Dictionary 10th Edition as follows: “exhaustion of remedies. The doctrine that, if an administrative remedy is provided by statute, a claimant must administrative seek body relief before first judicial from relief the is available. The Doctrine’s purpose is to maintain comity between the courts and administrative agencies and to ensure that courts will not be burdened by cases in which juridical relief is unnecessary.” 19.The Court of Appeal in the case of Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others [2015] KECA 304 (KLR) stated as follows in respect of this doctrine: MISC. CIVIL APPLICATION NO. E035 OF 2026 PAGE 9

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“It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked. Courts ought to be the fora of last resort and not the first port of call the moment a storm brews within churches, as is bound to happen. The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside of courts. This accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution. We find and hold that the exhaustion doctrine applies even where, as was argued by the appellants herein, what is sought to be challenged is the very authority of the organs before whom the dispute was to be placed. We think there were sufficient safeguards in place for a valid determination of the various plaintiffs’ disputes had they filed them within the church set up. And there was always the right, acknowledged by the learned Judge, of approaching the courts after exhaustion of the church mechanisms. MISC. CIVIL APPLICATION NO. E035 OF 2026 By failing to do so, and PAGE 10

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quite apart from the force of their apprehensions, the appellants effectively failed to exhaust their remedies and essentially shortcircuited the process by filing suits prematurely.” 20.The applicability of the said doctrine was reaffirmed by the Supreme Court in the case of Nicholus v Attorney General & 7 others; National Environmental Complaints Committee & 5 others (Interested Parties) (Petition E007 of 2023) [2023] KESC 113 (KLR) (28 December 2023) (Judgment) thus: “On our part, in NGOs Co-ordination Board v EG & 4 others; Katiba Institute (Amicus Curiae) (Petition 16 of 2019) [2023] KESC 17 (KLR) (Constitutional February and 2023) Human Rights) (24 (Judgment) (NGOs Co- ordination Board) we outlined the doctrine of exhaustion adopted of our administrative finding in remedies Albert and Chaurembo Mumbo & 7 others v Maurice Munyao & 148 others; SC Petition No 3 of 2016, [2019] eKLR where we held that: “... even where superior courts had jurisdiction to determine profound questions of law, the first opportunity had to be given to relevant persons, bodies, tribunals or any other quasiMISC. CIVIL APPLICATION NO. E035 OF 2026 PAGE 11

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judicial authorities and organs to deal with the dispute as provided for in the relevant parent statute.” In the above decision, we furthermore emphasized that, where there alternative method of dispute exists an resolution established by legislation, courts must exercise restraint in exercising their jurisdiction as conferred by the Constitution and must give deference to the dispute resolution bodies established by statute with the mandate to deal with such specific disputes in the first instance.” 21.It is evident from the above cited authorities that the general legal principle under the doctrine of exhaustion has been that where alternative dispute resolution mechanisms are in place, those ought to be exhausted before a party can consider taking the next steps. 22.In the present case, the Respondent’s argument is that pursuant to an arbitration clause featuring in the Sale Agreement, the Applicants ought to have firstly taken the dispute to arbitration before moving the High Court. In contrast, the Applicants have argued that the arbitration clause would not necessarily oust the jurisdiction of this MISC. CIVIL APPLICATION NO. E035 OF 2026 PAGE 12

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court, pursuant to Section 7(1) of the Arbitration Act which expresses thus: “It is not incompatible with an arbitration agreement for a party to request from the High Court, before or during arbitral proceedings, an interim measure of protection and for the High Court to grant that measure.” 23.I have perused the copy of the Sale Agreement which constitutes part of the Applicants’ list and bundle of documents, the Arbitration Clause is provided under Clause 18 of the Sale Agreement. This Clause provides that: All claims and disputes whatsoever arising under this Agreement shall be referred to arbitration in accordance with the provisions of the Arbitration Act of Kenya (Act Number 4 of 1995) (as may be amended from time to time) by a single arbitrator to be appointed by agreement between the parties or, failing agreement within fourteen (14) days of the notification by either party to the other of the existence of a dispute or claim, to be appointed MISC. CIVIL APPLICATION NO. E035 OF 2026 PAGE 13

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by the Chairman for the time being of the Chartered Institute of Arbitrators, Kenya Branch, Nairobi on the application of either party. 24. I have noted that Sub-clause iii to the cited Clause allows a party to seek preliminary injunctive relief or interim or conservatory measures from any court of competent jurisdiction pending the final decision or award of the arbitration. 25.As far as the record of the court goes, there is nothing to indicate the institution of the arbitration process by either of the parties. Rather, it is evident that the Applicants chose to invoke the jurisdiction of this court, contrary to the terms of the Sale Agreement on resolution of arising disputes between the parties. 26.Having established the above to be the legal position, I find that the Applicants cannot call upon this court to overlook the terms of the Sale Agreement in the manner set out in their application or at all. The said Agreement is clear as to the mechanisms agreed upon should a dispute arise and the MISC. CIVIL APPLICATION NO. E035 OF 2026 PAGE 14

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parties are bound by the terms executed between themselves. 27.The Applicants have argued that the arbitration clause/agreement is inoperative or otherwise incapable of being performed because the Respondent is in breach of the contract. Be that as it may, I have considered the material placed before the court and I have not seen any cogent material on record supporting this argument. 28.To my mind, after careful consideration of the arguments of the parties, I am not persuaded that the Applicants have demonstrated that the arbitration clause in the Sale Agreement ought not to apply. I hold the view that the doctrine of exhaustion is clear that a party ought to first exhaust the dispute resolution mechanisms available or agreed upon, before invoking the jurisdiction of the courts (see Lilande v Heri Development Limited & 2 others cited above, among others). In the absence of anything to indicate the institution and conclusion of the arbitration process as a first measure, it is my finding that the Applicants improperly and prematurely invoked the jurisdiction of this court. MISC. CIVIL APPLICATION NO. E035 OF 2026 PAGE 15

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29.Consequently, I am persuaded to allow the instant PO, which I hereby do, with the result that the PO dated 6.02.2026 is upheld. With that conclusion, it means that the Notice of Motion and the Plaint both dated 16.1.2026 cannot stand for the reason that this court lacks jurisdiction to hear and determine them due to the existence of the arbitration clause. 30.It would, therefore, not make sense to retain both the Notice of Motion and the Plaint and therefore, both the Notice of Motion and the Plaint are hereby struck out. Parties shall pursue the Arbitration Clause contained in the Sale Agreement. 31.I award costs of the Notice of Motion and the suit to the Defendant/Respondent. 32.It is so ordered. Dated, signed and delivered this 28th day of April 2026. S. N. MUTUKU JUDGE In the presence of: 1. …………………………………….for the Applicants 2. ……………………………………….for the Respondent MISC. CIVIL APPLICATION NO. E035 OF 2026 PAGE 16

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