1. I have been asked to review and set aside a Ruling rendered in this matter by my predecessor, Mon’gare J . The opposing side has however argued that the dispute belongs to the Environment and Land Court (ELC) and, as such, I should strike it out the suit. In the alternative, I have been asked to refer the dispute to Arbitration as dictated by the contract the subject of the suit.
2. This suit was commenced by way of the Plaint dated 2/12/2024 filed through Messrs MKN & Co. Advocates in which the Plaintiffs sought Judgment against the Defendants for Specific Performance of Agreements of Sale/Lease of two properties described as Apartment No. A1806 and Apartment No. B301 situate in the development christened as “ 1870 West” located on title numbers Nairobi/Block 7/403 and L.R. No. 1870/IX//172 . There is no dispute that the properties are owned by the 1 st Defendant in which it has been constructing residential apartments and commercial spaces for sale to the public, with the 2 nd Defendant as its marketing agent. There is also no dispute that the parties entered into Agreements for sale by which the Plaintiffs were to purchase the two properties by way of reservation and payment, off-plan, pending construction in respect to which the Plaintiffs claim to have paid substantial deposits. The Plaintiff now avers that despite such payments, the Defendants moved to terminate the Agreements for Sale for alleged breach of contract and instead, offered the properties for sale to other persons.
3. Together with the Plaint, the Plaintiff also filed an Application seeking an interlocutory injunction pending hearing of the suit, to restrain the Defendants from, inter alia , re-selling the properties to other persons, which Application was then heard inter partes and granted by Mon’gare J by way of the Ruling rendered on 5/05/2026.
4. 4 months after the Ruling, the Defendants, through their Advocates, Messrs O&M LLP , returned with the Notice of Motion dated 8/102025 praying that said orders be reviewed and set aside, and the interlocutory injunction be discharged. It is also prayed that the suit be referred to Arbitration in accordance with Clause 8.9 and 8.10 of the subject Agreements for Sale dated 28/07/2022, and that alternatively, the suit be struck out for want of prosecution, the dispute being in respect to use, occupation, possession and ownership/title to land and as such, a dispute whose jurisdiction lies with the Environment & Land Court (ELC) . This, now, is the subject of this Ruling.
5. The Application is supported by the Affidavit sworn by Farhana Hassanali , who introduced herself as a director of both Defendants and justified the termination of the Agreements for Sale urging that the same was on account of default on the part of the Plaintiffs in making payments. She contended that the interim injunction issued on 5/052025 was founded on errors apparent on the face of the record because it was based on, inter alia , a finding of the establishment of a prima facie case and threat of “ irreparable harm ” despite clear evidence of non-payment on the part of the Plaintiffs, failure to recognize that damages were an adequate remedy in a commercial dispute, and reliance on Reservation Forms superseded and extinguished by subsequent formal Agreements for Lease, and as such, misapplication of settled principles on grant of injunctions, among others. She urged further that the injunction unlawfully restricts the Defendants’ contractual rights of rescission and resale, caused them economic prejudice, and was also obtained through material non-disclosure. She also cited several clauses of the Agreements, which, she insisted, required the initiation of consultations followed by Arbitration, arguing that, as such, the suit was prematurely instituted and should be stayed and referred to Arbitration or, alternatively, be struck out because the dispute concerned proprietary interests in the apartments, and therefore falls within the jurisdiction of the Environment and Land Court (ELC) .
6. In response, the Plaintiffs, through their Advocates, Messrs MKN & Co. , filed the Replying Affidavit sworn on 25/10/2025 by Njama Wambugu , who introduced himself as director of both Plaintiffs. He termed the Application as misconceived, repetitive and an afterthought, having followed the withdrawal of a similar Application, and that the Defendants are improperly seeking Review after already filing a Notice of Appeal. He contended that the impugned findings were judicial determinations based on material already before the Court and could only be challenged on appeal, not through Review. He asserted further that the Plaintiffs had paid over Kshs 20,000,000/- representing more than 80% of the purchase prices, while the Defendants were behind schedule and sought to terminate the transactions in order to re-sell the apartments at higher prices. On the issue of Arbitration, he contended that the Defendants had failed to pursue the consultations and had invoked Arbitration too late, after entering Appearance and participating in the injunction proceedings, thereby submitting to the Court’s jurisdiction.
7. The Defendants then filed the Supplementary Affidavit sworn on 19/11/2025, which was however, basically an unnecessary and pointless repetition of the same matters already presented. The deponent, the same Farhana Hassanali , however deponed that filing of a Notice of Appeal is merely a formal notification of an intention to appeal, does not by itself equate to formal filing of an Appeal, and as such, does not oust this Court’s jurisdiction hear the Application for Review. She thus insisted that there were “ sufficient reasons ” to review the Ruling.
8. The parties then filed written Submissions. The Defendant’s Submissions is dated 13/01/2026 while the Plaintiffs’ is dated 3/06/2026. Apart from citing of authorities, the Submissions basically restate the rival contentions and arguments already presented. The Plaintiff however raised the seemingly new issue that the Application is defective because the order sought to be reviewed has not been extracted and attached thereto.
Determination
9. Several issues arise for determination in this matter. Broadly, the same can be summarized as follows:
i) Whether the dispute falls within the jurisdiction of the Environment and Land Court, rather than the High Court.
ii) Whether filing of a Notice of Appeal by the Defendants against the same Ruling sought to be reviewed bars the instant Application.
iii) Whether failure to attach an extracted formal order arising from the Ruling sought to be reviewed renders the Application incompetent.
iv) Whether sufficient grounds have been established to justify review and setting aside of the impugned Ruling.
v) Whether the dispute herein should be stayed and referred to Arbitration.
10. Regarding the issue of jurisdiction, it is evident that the same was never brought up earlier by the Defendants until now. Neither in their Statement of Defence nor in their arguments preceding the Ruling of Mon’gare J of 5/05/2025 did the Defendants raise the issue. The raising of the issue at this stage is therefore obviously an afterthought. Nonetheless, it is generally accepted that a challenge to jurisdiction, considering its fundamental effect to the entire suit if upheld, can be raised at any point, even at Appeal in justifiable circumstances. It is also curious that the Plaintiffs have not responded, whether in their Replying Affidavit or Submissions, to this challenge on jurisdiction. I leave it to speculation whether this was deliberate or just an inadvertent omission.
11. I must therefore first determine the of jurisdiction issue in limine . This is because jurisdiction is a foundational matter that a Court must ascertain before proceeding to the merits, and this, in turn, is because if the Court upholds the challenge, then that would be the death-bed of the entire suit as this Court would have lose the mandate to venture into the area of merits of the suit or lack thereof. As affirmed in several cases, ranging from the Court of Appeal locus classicus case of Owners of the Motor Vessel “Lillian S” vs. Caltex Oil (Kenya) Ltd [1989] eKLR , to the Supreme Court decision in Samuel Kamau Macharia v Kenya Commercial Bank Ltd & 2 others [2012] eKLR , “ jurisdiction is everything. Without it, a court has no power to make one more step ” , and “ a court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction .”
12. In answering the challenge on jurisdiction, it must be recalled that the High Court is established under Article 165 of the Constitution of Kenya , and is clothed with unlimited original jurisdiction in civil and criminal matters. The Environment and Land Court (ELC) is, on its part, established under Article 162(2)(b) of the Constitution, and while holding the same status as the High Court, possesses specialized, exclusive jurisdiction to hear and determine disputes relating, in summary, to environmental planning, protection, and the use, occupation, and title to land. The ELC operates under the Environment and Land Court Act No. 19 of 2011 , Section 13 whereof extends that Court’s mandate to, inter alia , resolving conflicts over land tenure, boundaries, registration, and title deed cancellations, handling cases related to climate change, pollution (such as noise and/or waste), riparian areas, and forest depletion, adjudicating state property takeovers for public infrastructure and compensation payouts, managing public, private, and community land usage contracts, rates, rents, and official valuations, and also reviewing decisions and appeals emanating from subordinate Courts or specialized tribunals handling land matters.
13. In answering the question of the boundary between the jurisdiction of the High Court and the ELC , I must say that merely because land, an apartment or a title document feature in a transaction is not, by itself, conclusive reason to declare the dispute an ELC case. The Court must identify the true cause of action and the “ dominant ” or “ predominant issue ” requiring determination. In affirming this principle, the Court of Appeal, in the case of Co-operative Bank of Kenya Ltd v Patrick Kangethe Njuguna & 5 others [2017] KECA 79 (KLR) , held that the mere existence of an instrument creating an interest in land does not automatically transform an accounting or commercial dispute into a land-use dispute. As such, the Court focused on the dominant issue and the legal relationship from which the claim arose. The jurisdictional boundary between the ELC and the High Court over commercial disputes is therefore defined by the “ core subject matter of the dispute ” rather than the mere mention of land in the dispute. The High Court (specifically the Commercial and Tax Division) therefore only retains jurisdiction if the dispute stems primarily from a “ commercial transaction ”, even if an interest in land is involved as a secondary element.
14. A related formulation was advanced in the case of Suzanne Achieng Butler & 4 others v Redhill Heights Investments Limited & another [2016] KEHC 1313 (KLR ) in which Prof. Ngugi J (as he then was) held that where a transaction contains both a sale of land and the provision of construction, goods or services, the Court considers its “ predominant purpose ” and the “ predominant issue ” disclosed by the pleadings. Jurisdiction would thus lie in the Court constitutionally assigned to the dispute’s real substance, not the Court suggested by the label placed on the instrument or the relief.
15. In this case, the Defendants’ contention that the dispute belongs to the ELC is based on the argument that the Plaintiffs are seeking specific performance and an injunction against resale on the strength of Agreements for Lease, which are instruments granting enforceable interests in land. I agree those considerations are relevant but I must also caution that they are, alone, not decisive. A Court must look beyond the remedy to the controversy that must be resolved before any remedy can be considered.
16. In this case, the parent parcels of land are identified and the 1 st Defendant’s ownership thereof is not disputed. No party is asking the Court to determine a boundary, or competing registered titles, or occupation of land, or tenancy, or validity of the parent titles. The Plaintiffs are also not asserting any existing registered title to the apartments against a rival registered proprietor. The pleaded controversy, as reflected in both the Application and the impugned Ruling, is whether the Plaintiffs complied with the agreed payment arrangements, whether the Defendants could demand varied prices, whether termination or rescission of the Agreements was contractually valid; and whether the Defendants may resell the two off-plan units before those contractual questions are tried. Those are basically questions of formation, interpretation, performance, breach, termination and contractual remedy. The apartments were being acquired off-plan in a development that was under construction. The dispute therefore contains both a property element and a substantial commercial and construction element. In the circumstances, the “ dominant issue ” is not the use, occupation or title to land but the parties’ reciprocal commercial obligations under the purchase arrangements and the legal effect of the alleged default and termination, if any. As aforesaid, jurisdiction of the ELC is in respect to the matters set out under Article 162 of the Constitution , Section 13 of the Environment and Land Court Act , and Section 150 of the Land Act . None of those provisions extends to the determination of commercial obligations under purchase agreements. The present dispute therefore does not therefore necessarily only fall within the scope of the ELC’s jurisdiction. Accordingly, the Defendants’ objection on jurisdiction is dismissed.
17. On whether filing of the Notice of Appeal by the Defendant bars the Application for Review, it is true that the remedy of review is only available to a party who has a right to appeal but has not appealed, or a party to whom the right of appeal is not available. Put differently, a party cannot exercise both the right to appeal and review at the same time as such would amount to an abuse of the process of the Court. This position was affirmed by the Court of Appeal in the case of Yani Haryanto vs. E. D. & F. Man. (Sugar) Limited Civil Appeal No. 122 of 1992 as follows :
“The facility of review under Order 44 of the Civil Procedure Rules is available to a person who is aggrieved by an order or decree which is appealable but from which no appeal has been preferred or from which no appeal is allowed, and who from the discovery of new and important matter or evidence or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review. A notice of appeal apart from manifesting a desire to appeal, appears to have a two-fold purpose; one of the purposes is apparent from the rules that follow up to and including rule 79. The other purpose is to enable the High Court to entertain an application for stay of execution before the appeal is filed …….. What rule 4(1) of Order 41 of the Civil Procedure Rules prescribes for is an exception to the rule relating to the actual filing of the appeal which is rule 81(1) of the Court of Appeal Rules. The exception is the deeming of the appeal to be filed for the purposes of rule 4 of Order 41 only on the giving of the notice of appeal. Therefore, despite the lodging of a notice of appeal the court has jurisdiction to entertain an application for review …….... An appeal is not instituted in the Court of Appeal until the record of appeal is lodged in its registry, fees paid and security lodged as provided in rule 58 and the inclusion of a memorandum of appeal ”.
18. I am aware that the same Court of Appeal of Kenya did however in the case of Kisya Investments Ltd v Attorney General & Another (Civil Appeal No. 31 of 1995) hold the contrary position that a party who has filed a Notice of Appeal is barred from filing an Application for Review. While the Kisya Investments Ltd case adopted such rigid interpretation, it represents a point of historical conflict in jurisprudence since in other decisions, most notably Yani Haryanto v E.D. & F. Man (Sugar) Limited , the same Court of Appeal took the opposite stance that a mere Notice of Appeal is simply a statement of intent and does not constitute an active appeal that would block a review. It is however evident that in modern Kenyan jurisprudence, the High Court frequently leans toward the Yani Haryanto precedent, viewing a Notice of Appeal as only a formal notification rather than a “preferred” appeal. I, too, am persuaded with Yani Haryanto .
19. In light of the foregoing, I hold that the Court of Appeal is not yet seized of any Appeal arising from the filed Notice of Appeal, and as such, mere filing of the Notice of Appeal by the Defendants did not in any way bar the Application for Review. As such, I reject the Plaintiffs’ contention that the option of Review is no longer available to the Plaintiffs merely because the Plaintiffs already filed a Notice of Appeal against the same Ruling they are seeking review against. This is because a Notice of Appeal is by itself not equal to filing a substantive Appeal.
20. The Plaintiffs next submit that the Application is incompetent because the Defendants did not attach an extracted copy of the formal order arising from the Ruling of 5/05/2025. It is indeed true that several decisions of the High Court have previously held that failure to attach the extracted order renders the Application for review defective . However, the Court of Appeal, in the case of in Sheikh Ali Taib v George Ellam Wekesa & another [2017] KECA 611 (KLR) , guided that:
“A reading of section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules which confer the review jurisdiction of the High Court do not have any requirement that in an application for review, an Applicant must attach to the application an order that he or she seeks the court to review. In saying this, we are not stating anything new. In Sadrudin Kurji & Another v. Shalimar Ltd & 2 Others , CA No 64 of 2006 this Court noted that there was no legal provision requiring inclusion of the order in an application for review. With great respect, the ruling of the High Court in Stephen Munga Maingi v. The Government of the United States of America & Another (supra), does not stand for the proposition the learned judge assigned it. ……….”
21. Failing to attach an extracted formal order or decree to a review application cannot therefore render it fatally defective. In line with the provisions of Article 159 of the Constitution , which favours substance over procedural technicality, as long as the challenged decision is in the record and sufficiently identified, the Application is viable. In this matter, there is no uncertainty over the order challenged. The Ruling of 5/05/2025 is exhibited and is also in the Court’s own record. The Plaintiffs fully understood the order under challenge and answered the Application on its merits, and as such, no prejudice or ambiguity has been demonstrated. The failure to attach an extracted formal order to the Application does not therefore render it fatally defective.
22. On whether sufficient grounds have been established to justify review and setting aside of the impugned Ruling, it must be recalled that Order 45 of the Civil Procedure Rules , recognizes 3 circumstances under which an order for review can be made. The first is where there has been “ discovery of new and important matter or evidence ”, the second is where there has been “ a mistake or error apparent on the face of the record ”, and the third is “ for any other sufficient reason ”. The Defendants have come under the ground of “ mistake or error apparent on the face of the record ”. The question therefore is whether they have successfully brought themselves within that ground.
23. The phrase “ an error apparent on the face of the record ”, was described by the Court of Appeal, in the case of Muyodi -v- Industrial and Commercial Development Corporation & Another (2006) 1 EA 243 , in the following terms:
“……... in Nyamogo & Nyamogo -v- Kogo (2001) EA 174 this Court said that an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. There is real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by long drawn process of reasoning or on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error or wrong view is certainly no ground for a review although it may be for an appeal ……..”
24. The phrase was also described in the Tanzanian case of Chandrakhant Joshibhai Patel -v- R [2004] TLR, 218 as one that “ must be such as can be seen by one who runs and reads, that is, an obvious and patent mistake and not something which can be established by a long drawn process of reading on points on which may be conceivably be two opinions .’
25. There is also the case of National Bank of Kenya Limited v Ndungu Njau [1997] eKLR , in which the Court of Appeal had the following to say:
“A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another Judge could have taken a different view of the matter. Nor can it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be a ground for review.
In the instant case the matters in dispute had been fully canvassed before the learned Judge. He made a conscious decision on the matters in controversy and exercised his discretion in favour of the respondent. If he had reached a wrong conclusion of law, it could be a good ground for appeal but not for review. Otherwise, we agree that the learned Judge would be sitting in appeal on his own judgment which is not permissible in law. An issue which has been hotly contested as in this case cannot be reviewed by the same court which had adjudicated upon it.”
26. It is therefore clear that “ an error apparent on the face of record ” must be one that is obvious to the eye, and self-evident. It must be one which when considered, would not yield two results, and does not require to be established by way of elaborate arguments. As was also affirmed by the Court of Appeal in the case of Stephen Gathua Kimani v Nancy Wanjira Waruingi t/a Providence Auctioneers [2019] KECA 594 (KLR) , the remedy of review cannot be invoked merely to contest a judge’s reasoning or the manner in which judicial discretion was exercised. And as stated in the case of Multichoice (Kenya) Ltd v Wananchi Group (Kenya) Limited & 2 Others [2020] KECA 633 (KLR) , the phrase “error apparent” means an error or mistake which is evident from the record and does not require examination or further scrutiny. Where establishing the alleged error requires detailed scrutiny of facts, construction of contractual clauses, comparison of competing evidence, or selection between reasonably arguable legal positions, the complaint ordinarily belongs to the appellate jurisdiction.
27. In this case, the first “error” alleged is that the Court attached significance to the Reservation Forms despite the “entire-agreement” provision in clause 8.2.2 of the Agreements for Lease. This argument clearly misconceives what the Ruling stated as the Court only recognised that the initial offers were later reduced into formal agreements. It did not finally hold that the Reservation Forms superseded the Agreements for Lease, or that the formal agreements were legally irrelevant. Being at an interlocutory stage, the Court only identified the factual controversy over the prices and payment terms and found the existence of an arguable claim. Whether clause 8.2.2 extinguished every reliance on the Reservation Forms, whether the forms remained relevant as part of the transactional history, and whether the alleged price variation was authorised under the formal Agreements are questions of contractual interpretation. Those questions require legal arguments as they require the Court to read the instruments as a whole, consider the cases cited by the parties and determine the legal effect of the “entire-agreement” clause. Even if the Defendants were to be ultimately proved right on construction of the wording of that clause, that would demonstrate a possible error of law or merits, not an error that is manifest without analysis. For such error, the proper forum for challenge can only be an appeal, not review.
28. The second alleged “error” alleged concerns the Plaintiffs’ payment performance and the validity of rescission. The Defendants argue that “undisputed” evidence shows default and lawful termination. However, the description ‘undisputed” is inconsistent with the record since the Plaintiffs did dispute default, cited the “agreed” schedules, asserted substantial performance, and cited reminders, notices and contractual default provisions. The Ruling did not also finally determine the payment account, or the legality of termination. It simply found that the competing positions disclosed a prima facie case. To reverse that finding, the Court would have to re-assess the payment records, construe the schedules, determine when sums fell due, consider any cure payments, and evaluate the termination notices. That is a merits exercise, not correction of an obvious error.
29. The third “error” alleged is the Judge’s application of the Giella and Nguruman principles. The Defendants contend that damages are adequate remedy because the dispute is commercial. Whether damages are adequate is not determined by placing a dispute in the broad category “commercial”. The inquiry is fact-sensitive and may include the uniqueness of the subject matter, location, replacement cost, market availability, the extent of part performance, and the practical ability to restore the claimant if the property is sold to a third party. Clearly, it is also not for review but appeal.
30. The fourth “error” alleged concerns the balance of “ convenience ” and “ commercial prejudice ”. The Defendants submit that the Court inadequately weighed the cost of holding the apartments and the loss of an opportunity to resell. That submission expressly invites a fresh balancing exercise. The weight assigned to competing prejudice is quintessentially a matter for appeal, absent a patent omission such as reliance on a non-existent party or an arithmetical impossibility.
31. It is therefore clear that the Defendants have failed to establish the existence of any error apparent on the face of the record. Every contractual instrument, payment record, termination notice and allegation of non-disclosure on which they rely was available when the injunction application was heard.
32. The ground of “ other sufficient reason’ does not also assist the Defendants. “ Other sufficient reason” must remain a reason sufficient within the limited corrective purpose of review. It cannot convert review into a re-hearing whenever an interlocutory order causes commercial inconvenience, or a party believes that the Judge should have reached a different conclusion. As affirmed in the case of Sadar Mohamed v. Charan Singh and Another (1963) EA 557 , the phrase “ other sufficient reason ” cannot be used as an open-ended excuse to re-argue a case, and Courts have consistently held that the phrase is tied to the ejusdem generis rule , meaning that it must be a reason analogous to the other two specific grounds: “ the discovery of new evidence ” or “ an error apparent on the face of the record ”. The Defendants have therefore clearly failed to demonstrate that there is any “ sufficient reason ” to warrant the review.
33. On whether these proceedings should be stayed and the dispute referred to Arbitration, Section 6 of the Arbitration Act provides that:
“ a court before which proceedings are brought in a matter which is the subject of an arbitration agreement shall, if a party so applies, not later than the time when that party enters appearance or otherwise acknowledges the claim against which the stay of proceedings is sought, stay the proceedings and refer the parties to arbitration ” ( Emphasis added )
34. The existence of an Arbitration clause in this matter is not disputed since Clauses 8.9 and 8.10 contemplate good-faith consultations followed, if necessary, by Arbitration. The Court recognizes the constitutional and statutory policy supporting consensual alternative dispute resolution, and as such, parties should ordinarily be held to their valid Arbitration agreement. However, Section 6(1) allows the Court to stay proceedings and refer the parties to Arbitration where a party applies “ not later than the time when it enters appearance ”, or ot
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2. This suit was commenced by way of the Plaint dated 2/12/2024 filed through Messrs MKN & Co. Advocates in which the Plaintiffs sought Judgment against the Defendants for Specific Performance of Agreements of Sale/Lease of two properties described as Apartment No. A1806 and Apartment No. B301 situate in the development christened as “ 1870 West” located on title numbers Nairobi/Block 7/403 and L.R. No. 1870/IX//172 . There is no dispute that the properties are owned by the 1 st Defendant in which it has been constructing residential apartments and commercial spaces for sale to the public, with the 2 nd Defendant as its marketing agent. There is also no dispute that the parties entered into Agreements for sale by which the Plaintiffs were to purchase the two properties by way of reservation and payment, off-plan, pending construction in respect to which the Plaintiffs claim to have paid substantial deposits. The Plaintiff now avers that despite such payments, the Defendants moved to terminate the Agreements for Sale for alleged breach of contract and instead, offered the properties for sale to other persons.
3. Together with the Plaint, the Plaintiff also filed an Application seeking an interlocutory injunction pending hearing of the suit, to restrain the Defendants from, inter alia , re-selling the properties to other persons, which Application was then heard inter partes and granted by Mon’gare J by way of the Ruling rendered on 5/05/2026.
4. 4 months after the Ruling, the Defendants, through their Advocates, Messrs O&M LLP , returned with the Notice of Motion dated 8/102025 praying that said orders be reviewed and set aside, and the interlocutory injunction be discharged. It is also prayed that the suit be referred to Arbitration in accordance with Clause 8.9 and 8.10 of the subject Agreements for Sale dated 28/07/2022, and that alternatively, the suit be struck out for want of prosecution, the dispute being in respect to use, occupation, possession and ownership/title to land and as such, a dispute whose jurisdiction lies with the Environment & Land Court (ELC) . This, now, is the subject of this Ruling.
5. The Application is supported by the Affidavit sworn by Farhana Hassanali , who introduced herself as a director of both Defendants and justified the termination of the Agreements for Sale urging that the same was on account of default on the part of the Plaintiffs in making payments. She contended that the interim injunction issued on 5/052025 was founded on errors apparent on the face of the record because it was based on, inter alia , a finding of the establishment of a prima facie case and threat of “ irreparable harm ” despite clear evidence of non-payment on the part of the Plaintiffs, failure to recognize that damages were an adequate remedy in a commercial dispute, and reliance on Reservation Forms superseded and extinguished by subsequent formal Agreements for Lease, and as such, misapplication of settled principles on grant of injunctions, among others. She urged further that the injunction unlawfully restricts the Defendants’ contractual rights of rescission and resale, caused them economic prejudice, and was also obtained through material non-disclosure. She also cited several clauses of the Agreements, which, she insisted, required the initiation of consultations followed by Arbitration, arguing that, as such, the suit was prematurely instituted and should be stayed and referred to Arbitration or, alternatively, be struck out because the dispute concerned proprietary interests in the apartments, and therefore falls within the jurisdiction of the Environment and Land Court (ELC) .
6. In response, the Plaintiffs, through their Advocates, Messrs MKN & Co. , filed the Replying Affidavit sworn on 25/10/2025 by Njama Wambugu , who introduced himself as director of both Plaintiffs. He termed the Application as misconceived, repetitive and an afterthought, having followed the withdrawal of a similar Application, and that the Defendants are improperly seeking Review after already filing a Notice of Appeal. He contended that the impugned findings were judicial determinations based on material already before the Court and could only be challenged on appeal, not through Review. He asserted further that the Plaintiffs had paid over Kshs 20,000,000/- representing more than 80% of the purchase prices, while the Defendants were behind schedule and sought to terminate the transactions in order to re-sell the apartments at higher prices. On the issue of Arbitration, he contended that the Defendants had failed to pursue the consultations and had invoked Arbitration too late, after entering Appearance and participating in the injunction proceedings, thereby submitting to the Court’s jurisdiction.
7. The Defendants then filed the Supplementary Affidavit sworn on 19/11/2025, which was however, basically an unnecessary and pointless repetition of the same matters already presented. The deponent, the same Farhana Hassanali , however deponed that filing of a Notice of Appeal is merely a formal notification of an intention to appeal, does not by itself equate to formal filing of an Appeal, and as such, does not oust this Court’s jurisdiction hear the Application for Review. She thus insisted that there were “ sufficient reasons ” to review the Ruling.
8. The parties then filed written Submissions. The Defendant’s Submissions is dated 13/01/2026 while the Plaintiffs’ is dated 3/06/2026. Apart from citing of authorities, the Submissions basically restate the rival contentions and arguments already presented. The Plaintiff however raised the seemingly new issue that the Application is defective because the order sought to be reviewed has not been extracted and attached thereto.
Determination
9. Several issues arise for determination in this matter. Broadly, the same can be summarized as follows:
i) Whether the dispute falls within the jurisdiction of the Environment and Land Court, rather than the High Court.
ii) Whether filing of a Notice of Appeal by the Defendants against the same Ruling sought to be reviewed bars the instant Application.
iii) Whether failure to attach an extracted formal order arising from the Ruling sought to be reviewed renders the Application incompetent.
iv) Whether sufficient grounds have been established to justify review and setting aside of the impugned Ruling.
v) Whether the dispute herein should be stayed and referred to Arbitration.
10. Regarding the issue of jurisdiction, it is evident that the same was never brought up earlier by the Defendants until now. Neither in their Statement of Defence nor in their arguments preceding the Ruling of Mon’gare J of 5/05/2025 did the Defendants raise the issue. The raising of the issue at this stage is therefore obviously an afterthought. Nonetheless, it is generally accepted that a challenge to jurisdiction, considering its fundamental effect to the entire suit if upheld, can be raised at any point, even at Appeal in justifiable circumstances. It is also curious that the Plaintiffs have not responded, whether in their Replying Affidavit or Submissions, to this challenge on jurisdiction. I leave it to speculation whether this was deliberate or just an inadvertent omission.
11. I must therefore first determine the of jurisdiction issue in limine . This is because jurisdiction is a foundational matter that a Court must ascertain before proceeding to the merits, and this, in turn, is because if the Court upholds the challenge, then that would be the death-bed of the entire suit as this Court would have lose the mandate to venture into the area of merits of the suit or lack thereof. As affirmed in several cases, ranging from the Court of Appeal locus classicus case of Owners of the Motor Vessel “Lillian S” vs. Caltex Oil (Kenya) Ltd [1989] eKLR , to the Supreme Court decision in Samuel Kamau Macharia v Kenya Commercial Bank Ltd & 2 others [2012] eKLR , “ jurisdiction is everything. Without it, a court has no power to make one more step ” , and “ a court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction .”
12. In answering the challenge on jurisdiction, it must be recalled that the High Court is established under Article 165 of the Constitution of Kenya , and is clothed with unlimited original jurisdiction in civil and criminal matters. The Environment and Land Court (ELC) is, on its part, established under Article 162(2)(b) of the Constitution, and while holding the same status as the High Court, possesses specialized, exclusive jurisdiction to hear and determine disputes relating, in summary, to environmental planning, protection, and the use, occupation, and title to land. The ELC operates under the Environment and Land Court Act No. 19 of 2011 , Section 13 whereof extends that Court’s mandate to, inter alia , resolving conflicts over land tenure, boundaries, registration, and title deed cancellations, handling cases related to climate change, pollution (such as noise and/or waste), riparian areas, and forest depletion, adjudicating state property takeovers for public infrastructure and compensation payouts, managing public, private, and community land usage contracts, rates, rents, and official valuations, and also reviewing decisions and appeals emanating from subordinate Courts or specialized tribunals handling land matters.
13. In answering the question of the boundary between the jurisdiction of the High Court and the ELC , I must say that merely because land, an apartment or a title document feature in a transaction is not, by itself, conclusive reason to declare the dispute an ELC case. The Court must identify the true cause of action and the “ dominant ” or “ predominant issue ” requiring determination. In affirming this principle, the Court of Appeal, in the case of Co-operative Bank of Kenya Ltd v Patrick Kangethe Njuguna & 5 others [2017] KECA 79 (KLR) , held that the mere existence of an instrument creating an interest in land does not automatically transform an accounting or commercial dispute into a land-use dispute. As such, the Court focused on the dominant issue and the legal relationship from which the claim arose. The jurisdictional boundary between the ELC and the High Court over commercial disputes is therefore defined by the “ core subject matter of the dispute ” rather than the mere mention of land in the dispute. The High Court (specifically the Commercial and Tax Division) therefore only retains jurisdiction if the dispute stems primarily from a “ commercial transaction ”, even if an interest in land is involved as a secondary element.
14. A related formulation was advanced in the case of Suzanne Achieng Butler & 4 others v Redhill Heights Investments Limited & another [2016] KEHC 1313 (KLR ) in which Prof. Ngugi J (as he then was) held that where a transaction contains both a sale of land and the provision of construction, goods or services, the Court considers its “ predominant purpose ” and the “ predominant issue ” disclosed by the pleadings. Jurisdiction would thus lie in the Court constitutionally assigned to the dispute’s real substance, not the Court suggested by the label placed on the instrument or the relief.
15. In this case, the Defendants’ contention that the dispute belongs to the ELC is based on the argument that the Plaintiffs are seeking specific performance and an injunction against resale on the strength of Agreements for Lease, which are instruments granting enforceable interests in land. I agree those considerations are relevant but I must also caution that they are, alone, not decisive. A Court must look beyond the remedy to the controversy that must be resolved before any remedy can be considered.
16. In this case, the parent parcels of land are identified and the 1 st Defendant’s ownership thereof is not disputed. No party is asking the Court to determine a boundary, or competing registered titles, or occupation of land, or tenancy, or validity of the parent titles. The Plaintiffs are also not asserting any existing registered title to the apartments against a rival registered proprietor. The pleaded controversy, as reflected in both the Application and the impugned Ruling, is whether the Plaintiffs complied with the agreed payment arrangements, whether the Defendants could demand varied prices, whether termination or rescission of the Agreements was contractually valid; and whether the Defendants may resell the two off-plan units before those contractual questions are tried. Those are basically questions of formation, interpretation, performance, breach, termination and contractual remedy. The apartments were being acquired off-plan in a development that was under construction. The dispute therefore contains both a property element and a substantial commercial and construction element. In the circumstances, the “ dominant issue ” is not the use, occupation or title to land but the parties’ reciprocal commercial obligations under the purchase arrangements and the legal effect of the alleged default and termination, if any. As aforesaid, jurisdiction of the ELC is in respect to the matters set out under Article 162 of the Constitution , Section 13 of the Environment and Land Court Act , and Section 150 of the Land Act . None of those provisions extends to the determination of commercial obligations under purchase agreements. The present dispute therefore does not therefore necessarily only fall within the scope of the ELC’s jurisdiction. Accordingly, the Defendants’ objection on jurisdiction is dismissed.
17. On whether filing of the Notice of Appeal by the Defendant bars the Application for Review, it is true that the remedy of review is only available to a party who has a right to appeal but has not appealed, or a party to whom the right of appeal is not available. Put differently, a party cannot exercise both the right to appeal and review at the same time as such would amount to an abuse of the process of the Court. This position was affirmed by the Court of Appeal in the case of Yani Haryanto vs. E. D. & F. Man. (Sugar) Limited Civil Appeal No. 122 of 1992 as follows :
“The facility of review under Order 44 of the Civil Procedure Rules is available to a person who is aggrieved by an order or decree which is appealable but from which no appeal has been preferred or from which no appeal is allowed, and who from the discovery of new and important matter or evidence or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review. A notice of appeal apart from manifesting a desire to appeal, appears to have a two-fold purpose; one of the purposes is apparent from the rules that follow up to and including rule 79. The other purpose is to enable the High Court to entertain an application for stay of execution before the appeal is filed …….. What rule 4(1) of Order 41 of the Civil Procedure Rules prescribes for is an exception to the rule relating to the actual filing of the appeal which is rule 81(1) of the Court of Appeal Rules. The exception is the deeming of the appeal to be filed for the purposes of rule 4 of Order 41 only on the giving of the notice of appeal. Therefore, despite the lodging of a notice of appeal the court has jurisdiction to entertain an application for review …….... An appeal is not instituted in the Court of Appeal until the record of appeal is lodged in its registry, fees paid and security lodged as provided in rule 58 and the inclusion of a memorandum of appeal ”.
18. I am aware that the same Court of Appeal of Kenya did however in the case of Kisya Investments Ltd v Attorney General & Another (Civil Appeal No. 31 of 1995) hold the contrary position that a party who has filed a Notice of Appeal is barred from filing an Application for Review. While the Kisya Investments Ltd case adopted such rigid interpretation, it represents a point of historical conflict in jurisprudence since in other decisions, most notably Yani Haryanto v E.D. & F. Man (Sugar) Limited , the same Court of Appeal took the opposite stance that a mere Notice of Appeal is simply a statement of intent and does not constitute an active appeal that would block a review. It is however evident that in modern Kenyan jurisprudence, the High Court frequently leans toward the Yani Haryanto precedent, viewing a Notice of Appeal as only a formal notification rather than a “preferred” appeal. I, too, am persuaded with Yani Haryanto .
19. In light of the foregoing, I hold that the Court of Appeal is not yet seized of any Appeal arising from the filed Notice of Appeal, and as such, mere filing of the Notice of Appeal by the Defendants did not in any way bar the Application for Review. As such, I reject the Plaintiffs’ contention that the option of Review is no longer available to the Plaintiffs merely because the Plaintiffs already filed a Notice of Appeal against the same Ruling they are seeking review against. This is because a Notice of Appeal is by itself not equal to filing a substantive Appeal.
20. The Plaintiffs next submit that the Application is incompetent because the Defendants did not attach an extracted copy of the formal order arising from the Ruling of 5/05/2025. It is indeed true that several decisions of the High Court have previously held that failure to attach the extracted order renders the Application for review defective . However, the Court of Appeal, in the case of in Sheikh Ali Taib v George Ellam Wekesa & another [2017] KECA 611 (KLR) , guided that:
“A reading of section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules which confer the review jurisdiction of the High Court do not have any requirement that in an application for review, an Applicant must attach to the application an order that he or she seeks the court to review. In saying this, we are not stating anything new. In Sadrudin Kurji & Another v. Shalimar Ltd & 2 Others , CA No 64 of 2006 this Court noted that there was no legal provision requiring inclusion of the order in an application for review. With great respect, the ruling of the High Court in Stephen Munga Maingi v. The Government of the United States of America & Another (supra), does not stand for the proposition the learned judge assigned it. ……….”
21. Failing to attach an extracted formal order or decree to a review application cannot therefore render it fatally defective. In line with the provisions of Article 159 of the Constitution , which favours substance over procedural technicality, as long as the challenged decision is in the record and sufficiently identified, the Application is viable. In this matter, there is no uncertainty over the order challenged. The Ruling of 5/05/2025 is exhibited and is also in the Court’s own record. The Plaintiffs fully understood the order under challenge and answered the Application on its merits, and as such, no prejudice or ambiguity has been demonstrated. The failure to attach an extracted formal order to the Application does not therefore render it fatally defective.
22. On whether sufficient grounds have been established to justify review and setting aside of the impugned Ruling, it must be recalled that Order 45 of the Civil Procedure Rules , recognizes 3 circumstances under which an order for review can be made. The first is where there has been “ discovery of new and important matter or evidence ”, the second is where there has been “ a mistake or error apparent on the face of the record ”, and the third is “ for any other sufficient reason ”. The Defendants have come under the ground of “ mistake or error apparent on the face of the record ”. The question therefore is whether they have successfully brought themselves within that ground.
23. The phrase “ an error apparent on the face of the record ”, was described by the Court of Appeal, in the case of Muyodi -v- Industrial and Commercial Development Corporation & Another (2006) 1 EA 243 , in the following terms:
“……... in Nyamogo & Nyamogo -v- Kogo (2001) EA 174 this Court said that an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. There is real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by long drawn process of reasoning or on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error or wrong view is certainly no ground for a review although it may be for an appeal ……..”
24. The phrase was also described in the Tanzanian case of Chandrakhant Joshibhai Patel -v- R [2004] TLR, 218 as one that “ must be such as can be seen by one who runs and reads, that is, an obvious and patent mistake and not something which can be established by a long drawn process of reading on points on which may be conceivably be two opinions .’
25. There is also the case of National Bank of Kenya Limited v Ndungu Njau [1997] eKLR , in which the Court of Appeal had the following to say:
“A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another Judge could have taken a different view of the matter. Nor can it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be a ground for review.
In the instant case the matters in dispute had been fully canvassed before the learned Judge. He made a conscious decision on the matters in controversy and exercised his discretion in favour of the respondent. If he had reached a wrong conclusion of law, it could be a good ground for appeal but not for review. Otherwise, we agree that the learned Judge would be sitting in appeal on his own judgment which is not permissible in law. An issue which has been hotly contested as in this case cannot be reviewed by the same court which had adjudicated upon it.”
26. It is therefore clear that “ an error apparent on the face of record ” must be one that is obvious to the eye, and self-evident. It must be one which when considered, would not yield two results, and does not require to be established by way of elaborate arguments. As was also affirmed by the Court of Appeal in the case of Stephen Gathua Kimani v Nancy Wanjira Waruingi t/a Providence Auctioneers [2019] KECA 594 (KLR) , the remedy of review cannot be invoked merely to contest a judge’s reasoning or the manner in which judicial discretion was exercised. And as stated in the case of Multichoice (Kenya) Ltd v Wananchi Group (Kenya) Limited & 2 Others [2020] KECA 633 (KLR) , the phrase “error apparent” means an error or mistake which is evident from the record and does not require examination or further scrutiny. Where establishing the alleged error requires detailed scrutiny of facts, construction of contractual clauses, comparison of competing evidence, or selection between reasonably arguable legal positions, the complaint ordinarily belongs to the appellate jurisdiction.
27. In this case, the first “error” alleged is that the Court attached significance to the Reservation Forms despite the “entire-agreement” provision in clause 8.2.2 of the Agreements for Lease. This argument clearly misconceives what the Ruling stated as the Court only recognised that the initial offers were later reduced into formal agreements. It did not finally hold that the Reservation Forms superseded the Agreements for Lease, or that the formal agreements were legally irrelevant. Being at an interlocutory stage, the Court only identified the factual controversy over the prices and payment terms and found the existence of an arguable claim. Whether clause 8.2.2 extinguished every reliance on the Reservation Forms, whether the forms remained relevant as part of the transactional history, and whether the alleged price variation was authorised under the formal Agreements are questions of contractual interpretation. Those questions require legal arguments as they require the Court to read the instruments as a whole, consider the cases cited by the parties and determine the legal effect of the “entire-agreement” clause. Even if the Defendants were to be ultimately proved right on construction of the wording of that clause, that would demonstrate a possible error of law or merits, not an error that is manifest without analysis. For such error, the proper forum for challenge can only be an appeal, not review.
28. The second alleged “error” alleged concerns the Plaintiffs’ payment performance and the validity of rescission. The Defendants argue that “undisputed” evidence shows default and lawful termination. However, the description ‘undisputed” is inconsistent with the record since the Plaintiffs did dispute default, cited the “agreed” schedules, asserted substantial performance, and cited reminders, notices and contractual default provisions. The Ruling did not also finally determine the payment account, or the legality of termination. It simply found that the competing positions disclosed a prima facie case. To reverse that finding, the Court would have to re-assess the payment records, construe the schedules, determine when sums fell due, consider any cure payments, and evaluate the termination notices. That is a merits exercise, not correction of an obvious error.
29. The third “error” alleged is the Judge’s application of the Giella and Nguruman principles. The Defendants contend that damages are adequate remedy because the dispute is commercial. Whether damages are adequate is not determined by placing a dispute in the broad category “commercial”. The inquiry is fact-sensitive and may include the uniqueness of the subject matter, location, replacement cost, market availability, the extent of part performance, and the practical ability to restore the claimant if the property is sold to a third party. Clearly, it is also not for review but appeal.
30. The fourth “error” alleged concerns the balance of “ convenience ” and “ commercial prejudice ”. The Defendants submit that the Court inadequately weighed the cost of holding the apartments and the loss of an opportunity to resell. That submission expressly invites a fresh balancing exercise. The weight assigned to competing prejudice is quintessentially a matter for appeal, absent a patent omission such as reliance on a non-existent party or an arithmetical impossibility.
31. It is therefore clear that the Defendants have failed to establish the existence of any error apparent on the face of the record. Every contractual instrument, payment record, termination notice and allegation of non-disclosure on which they rely was available when the injunction application was heard.
32. The ground of “ other sufficient reason’ does not also assist the Defendants. “ Other sufficient reason” must remain a reason sufficient within the limited corrective purpose of review. It cannot convert review into a re-hearing whenever an interlocutory order causes commercial inconvenience, or a party believes that the Judge should have reached a different conclusion. As affirmed in the case of Sadar Mohamed v. Charan Singh and Another (1963) EA 557 , the phrase “ other sufficient reason ” cannot be used as an open-ended excuse to re-argue a case, and Courts have consistently held that the phrase is tied to the ejusdem generis rule , meaning that it must be a reason analogous to the other two specific grounds: “ the discovery of new evidence ” or “ an error apparent on the face of the record ”. The Defendants have therefore clearly failed to demonstrate that there is any “ sufficient reason ” to warrant the review.
33. On whether these proceedings should be stayed and the dispute referred to Arbitration, Section 6 of the Arbitration Act provides that:
“ a court before which proceedings are brought in a matter which is the subject of an arbitration agreement shall, if a party so applies, not later than the time when that party enters appearance or otherwise acknowledges the claim against which the stay of proceedings is sought, stay the proceedings and refer the parties to arbitration ” ( Emphasis added )
34. The existence of an Arbitration clause in this matter is not disputed since Clauses 8.9 and 8.10 contemplate good-faith consultations followed, if necessary, by Arbitration. The Court recognizes the constitutional and statutory policy supporting consensual alternative dispute resolution, and as such, parties should ordinarily be held to their valid Arbitration agreement. However, Section 6(1) allows the Court to stay proceedings and refer the parties to Arbitration where a party applies “ not later than the time when it enters appearance ”, or ot
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