1. This is a Ruling on a Preliminary Objection raised by the 1 st Respondent.
2. The Applicants commenced these proceedings by way of the Notice of Motion dated 30/10/2025 filed through Messrs MAK & Partners Advocates . The Motion, defying basic rules of proper drafting of pleadings, is supported by an unnecessarily very lengthy, repetitive, voluminous and verbose list of up to 26 grounds. With a little bit of brevity, the grounds could have been easily reduced to not more than 5 at most. Be that as it may, the Application is brought under, inter alia , Section 7 of the Arbitration Act , and seeks orders as follows:
“1. [................] spent
2. THAT pending the inter partes hearing and determination of this suit and the Arbitration proceedings, the Honorable Court be pleased to issue:
a) An interim Injunction restraining the 1 st and 2 nd Respondents whether by themselves, their agents, employees and/or servants or any person claiming through them from selling, alienating, or dealing in any manner whatsoever with all that property known as Land Reference Number 209/5990/13 Grant Number 1 8295/9.
b) An order for Specific performance of the Lease Agreement dated 29th December 2017.
c) A declaration that the 1 st Respondent should procure the release of the Partial Discharge of Charge and registration of the Sub-lease in favour of the Applicants as per the terms of the Lease within 14 days upon service of the order upon it.
d) An order compelling the 2 nd Respondent to immediately and unconditionally deliver to the Applicants, the signed Partial Discharge of Charge and all accompanying documents for registration of the Sub-lease in the names of the Applicants.
3. THAT in the alternative to (a), (b), (c) and (d) above, restitution of the Lease Premium plus interest from December 2017, additional costs, stamp duty and interest on the above at Court rates until payment in full
4. THAT this Honourable Court awards the Applicants damages to be ascertained by the Court for the delayed discharge of Charge and registration of the Sub-Lease spanning over 7 years.
5. THAT this Honourable Court be pleased to give any such other of further order(s) as it may deem fit.
6. THAT the costs of this Application be borne by the Respondents.”
3. The Application is supported by the Affidavit sworn by the 1 st Applicant, Rosevel Pierre Louis , who basically deponed that Applicants (as purchasers) and the 1 st Respondent (as vendor) are parties to an Agreement for Lease dated 29/12/2017 in respect of the property described as Apartment No. C12, Duchess Park , located on Land Reference No. 209/5990/13 , for a Lease Premium of Kshs 27,500,000/-, which he claims that the Applicants have paid in full. He deponed that despite this, the 1 st Respondent has failed to submit the documents for registration, blaming the 2 nd Respondent, its financier, for failing to release a Partial Discharge of Charge over the Apartment . He deponed that the Lease contains a tiered dispute resolution mechanism in that Clause 7.15 requires disputes to be first resolved by consultation and, failing that, by Arbitration under Clause 7.16 , which nonetheless reserves to either party the right to “ seek preliminary injunctive relief or interim or conservatory measures from a court in Kenya of competent jurisdiction pending the final decision or award of the arbitrator .” He averred further in view thereof, they declared a dispute in October 2022 and, following unsuccessful consultations, commenced arbitral proceedings culminating in the filing of a Statement of Claim on 4/12/2023 but the arbitral proceedings has not proceeded to any meaningful extent to date and has stalled because the 1 st Respondent did not file its Statement of Defence within the timelines prescribed by the Arbitrator, did not appear before the Arbitrator, and also refused to pay its part of the deposit requested by the Arbitrator.
4. The 1 st Respondent has opposed the Application by way of the Replying Affidavit filed through Messrs T.N. Ogwoka & Osili Advocates , and sworn on 27/01/2026 by one Daniel Ojijo , who introduced himself as the 1 st Respondent’s Managing Director. Mr. Ojijo deponed basically, that the Application has been overtaken by events since the Partial Discharge has since been released, that prayer 2(a) falls within the jurisdiction of the Environment and Land Court (ELC ), and that the remaining prayers seek final orders at interlocutory stage, which orders, in any event, only the Arbitrator, not this Court, may grant, the parties having agreed on Arbitration as the choice of forum for resolving their disputes. He thus described the Application as offending the doctrine of “ exhaustion ”, and that even on merits, the Application should be refused since the subject matter is under no threat.
5. I have not come across any filed formal Notice of Preliminary Objection but it appears that the parties had, before I took over the matter from my sister, Mongare J , seemingly agreed to first canvass the aforesaid points of law as a Preliminary Objection before proceeding to the merits, if the Preliminary Objection is not upheld. There is also no indication that the 2 nd Respondent has ever participated in the matter before this Court.
6. The parties also filed written Submissions on the Preliminary Objection. The Applicants’ Submissions is dated 5/06/2026, while the 1 st Respondent’s is dated 27/01/2026.
7. In his Submissions, the Applicants’ Counsel basically contended that the Preliminary Objection does not meet the threshold set in the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 because it is founded on contested facts, and that the doctrine of “ exhaustion ” is not absolute and will not apply if the alternative forum is not effective or has broken down. He also submitted that in this case, the arbitration process has broken down as a result of the acts of the 1 st Respondent as already set out, urging that a party cannot frustrate Arbitration and then turn around and claim that the Court lacks jurisdiction as that will amount to an abuse of the Court process. He also denied that the Applicants are seeking final orders, asserting that the same are only interim and preservatory in nature. He then cited several authorities to buttress the several limbs of his arguments.
8. On his part, Counsel for the 1 st Respondent basically reiterated and restated its arguments made in the Replying Affidavit as already recounted. He too, cited several authorities in support of the several limbs of his arguments.
Determination
9. The issues for determination in this matter are evidently the following:
i) Whether the issue of the doctrine of “ exhaustion ”, and the issue of lack of jurisdiction, meet the threshold of a Preliminary Objection.
ii) Whether the dispute falls within the jurisdiction of the Environment and Land Court (ELC) and, as such, whether this Court lacks the jurisdiction to entertain the same.
iii) Whether these proceedings offend the doctrine of “exhaustion” and, as such, whether this Court lacks the jurisdiction to entertain the dispute.
10. In answering the first issue, it must be recalled that a Preliminary Objection must raise a pure point of law and must not require the ascertainment of any disputed fact. This time-honoured principle was established in the celebrated case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, cited with approval by the Supreme Court in Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 Others [2014] eKLR as follows:
“A preliminary objection consists of a 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 contract giving rise to the suit to refer the dispute to arbitration… A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained, or if what is sought is the exercise of judicial discretion.”
11. Applying the above principles, I find that both the issue of lack of jurisdiction, and the issue of the doctrine of “ exhaustion ” easily meet the threshold of a Preliminary Objection as both arise by clear implication out of the pleadings, facts relating to each are basically uncontested and do not therefore require presentation of further facts or determination thereof. Further, if argued as a preliminary point, each has the potential to fully dispose of these proceedings. I will therefore proceed to determine the same as Preliminary points of law.
12. Regarding the second issue, namely, whether the correct forum to resolve the dispute is the ELC , it must also be recalled that 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 objection, then that would be the death-bed of the entire suit as this Court would have then lost the mandate to venture into the area of merits of the dispute. 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 .”
13. In answering the issue of the jurisdiction of the ELC , 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 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.
14. 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.
15. 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.
16. In this case, 1 understand the 1 st Respondent’s contention to be that the dispute belongs to the ELC because the Applicants are seeking specific performance and an injunction against interference with ownership of the Apartment, on the strength of an Agreement for Lease, which is an instrument granting an enforceable interest in land. I agree those considerations are relevant but I must also caution that they, alone, are not decisive. A Court must look beyond the remedy to the controversy that is to be resolved before the remedy can be considered.
17. In this case, the parent parcel of land as well as the subject Apartment are identified, and the Applicants’ beneficial ownership or claim thereof and payment of the purchase price 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 title. The Applicants are also not asserting any claim of title to the Apartments against a rival registered claimant. The pleaded controversy; is whether the 1 st Respondent has breached the commercial contract, and if so, what remedies are available to the Applicants for the breach. Those are basically questions of interpretation, performance, breach, and contractual remedy. 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, 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 . As the dispute herein clearly also attracts the determination of commercial obligations under purchase agreements, the jurisdiction to determine the dispute does not necessarily rest exclusively with only the ELC . Accordingly, this challenge on jurisdiction or reference to the ELC is dismissed.
18. In regard to the third issue, namely, the issue of the doctrine of “ exhaustion ”, Section 7 of the Arbitration Act , 1995 provides as follows:
“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.”
19. The parties' own Agreement dated 29/12/2017, also adopts this statutory position as the final sentence of Clause 7.16 expressly reserves to either party the right to “ seek preliminary injunctive relief or interim or conservatory measures from a Court in Kenya of competent jurisdiction pending the final decision or award of the arbitrator ”, notwithstanding the parties' choice of Arbitration as the mode of final dispute resolution. Far from ousting the jurisdiction of this Court therefore, the contract, read together with Section 7 aforesaid, expressly preserves jurisdiction of the Court for that limited, protective purpose.
20. The above circumstances clearly distinguishes this case from the line of authorities relied upon by the 1 st Respondent in pushing the doctrine of “ exhaustion ”, such as the case of Speaker of the National Assembly v Karume [1992] KECA 42 (KLR) , the case of Dickson Mukwe Lukeine v Attorney General & 4 Others [2012] KLR , the case of Geoffrey Muthiga Kabiru & 2 Others v Samuel Munga Henry & 1756 Others [2015] eKLR , the case of Obonyo v Nyanchwa Adventist Mission Hospital Board [2025] KEELRC 1535 (KLR) , and the case of Lilande v Heri Development Limited & 2 Others [2024] KEELC 13261. This is because in those cases, a party filed, or sought to maintain an ordinary suit or claim on the merits without any resort at all to the agreed or contractually agreed alternative mechanism of Arbitration, thus correctly prompting the Court to decline jurisdiction in light of the existence of an Arbitration clause. The circumstances here are different. The Applicants did resort to Arbitration as required by the subject contract. They declared a dispute in October 2022, engaged in the contractually mandated consultation, and eventually filed a Statement of Claim before a duly constituted Arbitrator in December 2023. What is before this Court is therefore not a substitute suit filed in place of Arbitration, but simply an Application, brought squarely under Section 7 , for interim protective measures pending that very Arbitration, a remedy the Arbitration Act and the parties' own contract expressly contemplate as compatible with, not a departure from, the arbitration clause. Clearly, the “ exhaustion ” doctrine, as canvassed in the authorities cited by the 1 st Respondent, does not, without more, apply to oust the Court's Section 7 jurisdiction in these circumstances. Prayer 2(a) is therefore properly before this Court but only in seeking protective orders, in the interim, pending hearing and determination of the ongoing Arbitration proceedings
21. Be that as it may, the jurisdiction under Section 7 is nonetheless limited. This Court cannot, under the guise of Section 7 , exceed its mandate by also granting what is in substance final relief fully determining the dispute, as that would amount to usurping the Arbitrator's mandate. This position was affirmed by Nyamu JA in the Court of Appeal case of Safaricom Limited v Ocean View Beach Hotel Limited & 2 Others, [2010] KECA 346 (KLR) , as follows:
“Interim measures of protection in arbitration take different forms, and it would be unwise to regard the categories of interim measures as being in any sense closed (say restricted to injunctions, for example), and what is suitable must turn or depend on the facts of each case before the court or the tribunal — such interim measures include measures relating to preservation of evidence, measures aimed at preserving the status quo, measures intended to provide security for costs, and injunctions. Under our system of the law on arbitration, the essentials which the court must take into account before issuing the interim measures of protection are:”
1. The existence of an arbitration agreement.
2. Whether the subject matter of arbitration is under threat.
3. In the special circumstances, which is the appropriate measure of protection after an assessment of the merits of the application?
4. For what period must the measure be given, especially if requested before the commencement of the arbitration, so as to avoid encroaching on the tribunal's decision-making power as intended by the parties?”
22. Section 7 , as also adopted by the parties’ own agreement at Clause 7.15 and 7.16 , is therefore merely intended to assist in preserving the subject matter of Arbitration without at all straying into also determining the merits of the dispute. Consequently, the doctrine of “ exhaustion ” of remedies does not ousts the jurisdiction of the Court under Section 7 to issue an interim protective injunction pending Arbitration.
23. The above cannot however be also said of prayers 2(b), (c), (d) , and also prayers 3, 4 and 5 of the Application, which seek such far-reaching orders as specific performance, restitution and damages, respectively. Each of those prayers calls upon this Court to determine liability on merits at an interlocutory stage, before the Arbitrator has had the opportunity to do that he was appointed to; to determine the dispute on merits. To determine these prayers would be a clear usurpation of the Arbitral jurisdiction as was also cautioned by Nyamu JA in the same Safaricom v Ocean Beach case (supra) in the following manner:
“In the matter before us, the court went on to make orders which undermined the arbitration and the outcome of the arbitration contrary to section 17 of the Arbitration Act. A court of law when asked to issue interim measures of protection must always be reluctant to make a decision that would risk prejudicing the outcome of the arbitration.”
24. To the above extent, this Court lacks the jurisdiction under Section 7 of the Arbitration Act , and also under Clause 7.15 and 7.16 of the parties own Agreement, to determine prayers 2(b), (c), (d) , and also prayers 3, 4 and 5 of the Application herein, as those are substantive prayers exclusively reserved for the Arbitration, and in respect to which this Court’s jurisdiction is expressly ousted.
25. Before I conclude, I observe that the Applicants’ Counsel seems to have “thrown his hands up the air in despair” or surrendered seemingly erroneously believing that he no longer has any options in the Arbitration simply because the 1 st Respondent has allegedly “deliberately” “frustrated” the arbitral process causing it to stall. Far from it, the drafters of the Arbitration Act being aware of the possibility of difficult parties who may come all out to frustrate the arbitral process, wisely inserted various provisions into the Act giving an Arbitrator wide powers to take pre-emptive action against any such party who dishonestly deliberately seeks to frustrate or stall the process, or one who is unjustifiably unwilling to participate. The Act even contains provisions empowering the Arbitrator to proceed ex parte if necessary, after according the “offending” party sufficient time to “mend his ways”, and an ex parte Award given under such circumstances is fully valid provided the Arbitrator has followed the due process. The Applicant thus only seeks to read through the Act, identify the relevant powers, and move the Arbitrator to invoke those powers if necessary.
Final Orders
26. For the above reasons, the Preliminary Objection partially succeeds, only to the following extent: follows:
i) The objection that the instant Application dated 30/10/2025 falls entirely within the exclusive jurisdiction of the Environment and Land Court (ELC) is dismissed.
ii) The objection that this Court lacks jurisdiction by reason of the Arbitration agreement, under the doctrine of “ exhaustion ” of remedies, to grant protective orders of injunction pending Arbitration is dismissed. Prayer 2(a) of the Application is accordingly found to be properly before this Court
iii) The objection that prayers 2(b), (c), (d) , and also prayers 3, 4 and 5 of the Application offend the doctrine of “ exhaustion ” of remedies is however upheld as the orders sought under those prayers, are of the nature that is exclusively reserved for determination in the Arbitration. The said prayers are consequently struck out.
iv) The Court shall now proceed to determine only the remaining Prayer 2(a) of the Application.
vi) Costs of the Preliminary Objection shall be in the Cause.
DELIVERED, DATED AND SIGNED AT NAIROBI THIS 14TH DAY OF AUGUST 2026
.................................
WANANDA JOHN R. ANURO
JUDGE
Delivered in the presence of:
Ms. Syengo for the Applicants
Mr. Nyamagwa for the 1 st Respondent
N/A for the 2 nd Respondent
Court Assistant: Amos Boso
Milimani HCCOMMMISC/E1215/2025
2. The Applicants commenced these proceedings by way of the Notice of Motion dated 30/10/2025 filed through Messrs MAK & Partners Advocates . The Motion, defying basic rules of proper drafting of pleadings, is supported by an unnecessarily very lengthy, repetitive, voluminous and verbose list of up to 26 grounds. With a little bit of brevity, the grounds could have been easily reduced to not more than 5 at most. Be that as it may, the Application is brought under, inter alia , Section 7 of the Arbitration Act , and seeks orders as follows:
“1. [................] spent
2. THAT pending the inter partes hearing and determination of this suit and the Arbitration proceedings, the Honorable Court be pleased to issue:
a) An interim Injunction restraining the 1 st and 2 nd Respondents whether by themselves, their agents, employees and/or servants or any person claiming through them from selling, alienating, or dealing in any manner whatsoever with all that property known as Land Reference Number 209/5990/13 Grant Number 1 8295/9.
b) An order for Specific performance of the Lease Agreement dated 29th December 2017.
c) A declaration that the 1 st Respondent should procure the release of the Partial Discharge of Charge and registration of the Sub-lease in favour of the Applicants as per the terms of the Lease within 14 days upon service of the order upon it.
d) An order compelling the 2 nd Respondent to immediately and unconditionally deliver to the Applicants, the signed Partial Discharge of Charge and all accompanying documents for registration of the Sub-lease in the names of the Applicants.
3. THAT in the alternative to (a), (b), (c) and (d) above, restitution of the Lease Premium plus interest from December 2017, additional costs, stamp duty and interest on the above at Court rates until payment in full
4. THAT this Honourable Court awards the Applicants damages to be ascertained by the Court for the delayed discharge of Charge and registration of the Sub-Lease spanning over 7 years.
5. THAT this Honourable Court be pleased to give any such other of further order(s) as it may deem fit.
6. THAT the costs of this Application be borne by the Respondents.”
3. The Application is supported by the Affidavit sworn by the 1 st Applicant, Rosevel Pierre Louis , who basically deponed that Applicants (as purchasers) and the 1 st Respondent (as vendor) are parties to an Agreement for Lease dated 29/12/2017 in respect of the property described as Apartment No. C12, Duchess Park , located on Land Reference No. 209/5990/13 , for a Lease Premium of Kshs 27,500,000/-, which he claims that the Applicants have paid in full. He deponed that despite this, the 1 st Respondent has failed to submit the documents for registration, blaming the 2 nd Respondent, its financier, for failing to release a Partial Discharge of Charge over the Apartment . He deponed that the Lease contains a tiered dispute resolution mechanism in that Clause 7.15 requires disputes to be first resolved by consultation and, failing that, by Arbitration under Clause 7.16 , which nonetheless reserves to either party the right to “ seek preliminary injunctive relief or interim or conservatory measures from a court in Kenya of competent jurisdiction pending the final decision or award of the arbitrator .” He averred further in view thereof, they declared a dispute in October 2022 and, following unsuccessful consultations, commenced arbitral proceedings culminating in the filing of a Statement of Claim on 4/12/2023 but the arbitral proceedings has not proceeded to any meaningful extent to date and has stalled because the 1 st Respondent did not file its Statement of Defence within the timelines prescribed by the Arbitrator, did not appear before the Arbitrator, and also refused to pay its part of the deposit requested by the Arbitrator.
4. The 1 st Respondent has opposed the Application by way of the Replying Affidavit filed through Messrs T.N. Ogwoka & Osili Advocates , and sworn on 27/01/2026 by one Daniel Ojijo , who introduced himself as the 1 st Respondent’s Managing Director. Mr. Ojijo deponed basically, that the Application has been overtaken by events since the Partial Discharge has since been released, that prayer 2(a) falls within the jurisdiction of the Environment and Land Court (ELC ), and that the remaining prayers seek final orders at interlocutory stage, which orders, in any event, only the Arbitrator, not this Court, may grant, the parties having agreed on Arbitration as the choice of forum for resolving their disputes. He thus described the Application as offending the doctrine of “ exhaustion ”, and that even on merits, the Application should be refused since the subject matter is under no threat.
5. I have not come across any filed formal Notice of Preliminary Objection but it appears that the parties had, before I took over the matter from my sister, Mongare J , seemingly agreed to first canvass the aforesaid points of law as a Preliminary Objection before proceeding to the merits, if the Preliminary Objection is not upheld. There is also no indication that the 2 nd Respondent has ever participated in the matter before this Court.
6. The parties also filed written Submissions on the Preliminary Objection. The Applicants’ Submissions is dated 5/06/2026, while the 1 st Respondent’s is dated 27/01/2026.
7. In his Submissions, the Applicants’ Counsel basically contended that the Preliminary Objection does not meet the threshold set in the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 because it is founded on contested facts, and that the doctrine of “ exhaustion ” is not absolute and will not apply if the alternative forum is not effective or has broken down. He also submitted that in this case, the arbitration process has broken down as a result of the acts of the 1 st Respondent as already set out, urging that a party cannot frustrate Arbitration and then turn around and claim that the Court lacks jurisdiction as that will amount to an abuse of the Court process. He also denied that the Applicants are seeking final orders, asserting that the same are only interim and preservatory in nature. He then cited several authorities to buttress the several limbs of his arguments.
8. On his part, Counsel for the 1 st Respondent basically reiterated and restated its arguments made in the Replying Affidavit as already recounted. He too, cited several authorities in support of the several limbs of his arguments.
Determination
9. The issues for determination in this matter are evidently the following:
i) Whether the issue of the doctrine of “ exhaustion ”, and the issue of lack of jurisdiction, meet the threshold of a Preliminary Objection.
ii) Whether the dispute falls within the jurisdiction of the Environment and Land Court (ELC) and, as such, whether this Court lacks the jurisdiction to entertain the same.
iii) Whether these proceedings offend the doctrine of “exhaustion” and, as such, whether this Court lacks the jurisdiction to entertain the dispute.
10. In answering the first issue, it must be recalled that a Preliminary Objection must raise a pure point of law and must not require the ascertainment of any disputed fact. This time-honoured principle was established in the celebrated case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, cited with approval by the Supreme Court in Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 Others [2014] eKLR as follows:
“A preliminary objection consists of a 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 contract giving rise to the suit to refer the dispute to arbitration… A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained, or if what is sought is the exercise of judicial discretion.”
11. Applying the above principles, I find that both the issue of lack of jurisdiction, and the issue of the doctrine of “ exhaustion ” easily meet the threshold of a Preliminary Objection as both arise by clear implication out of the pleadings, facts relating to each are basically uncontested and do not therefore require presentation of further facts or determination thereof. Further, if argued as a preliminary point, each has the potential to fully dispose of these proceedings. I will therefore proceed to determine the same as Preliminary points of law.
12. Regarding the second issue, namely, whether the correct forum to resolve the dispute is the ELC , it must also be recalled that 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 objection, then that would be the death-bed of the entire suit as this Court would have then lost the mandate to venture into the area of merits of the dispute. 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 .”
13. In answering the issue of the jurisdiction of the ELC , 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 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.
14. 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.
15. 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.
16. In this case, 1 understand the 1 st Respondent’s contention to be that the dispute belongs to the ELC because the Applicants are seeking specific performance and an injunction against interference with ownership of the Apartment, on the strength of an Agreement for Lease, which is an instrument granting an enforceable interest in land. I agree those considerations are relevant but I must also caution that they, alone, are not decisive. A Court must look beyond the remedy to the controversy that is to be resolved before the remedy can be considered.
17. In this case, the parent parcel of land as well as the subject Apartment are identified, and the Applicants’ beneficial ownership or claim thereof and payment of the purchase price 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 title. The Applicants are also not asserting any claim of title to the Apartments against a rival registered claimant. The pleaded controversy; is whether the 1 st Respondent has breached the commercial contract, and if so, what remedies are available to the Applicants for the breach. Those are basically questions of interpretation, performance, breach, and contractual remedy. 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, 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 . As the dispute herein clearly also attracts the determination of commercial obligations under purchase agreements, the jurisdiction to determine the dispute does not necessarily rest exclusively with only the ELC . Accordingly, this challenge on jurisdiction or reference to the ELC is dismissed.
18. In regard to the third issue, namely, the issue of the doctrine of “ exhaustion ”, Section 7 of the Arbitration Act , 1995 provides as follows:
“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.”
19. The parties' own Agreement dated 29/12/2017, also adopts this statutory position as the final sentence of Clause 7.16 expressly reserves to either party the right to “ seek preliminary injunctive relief or interim or conservatory measures from a Court in Kenya of competent jurisdiction pending the final decision or award of the arbitrator ”, notwithstanding the parties' choice of Arbitration as the mode of final dispute resolution. Far from ousting the jurisdiction of this Court therefore, the contract, read together with Section 7 aforesaid, expressly preserves jurisdiction of the Court for that limited, protective purpose.
20. The above circumstances clearly distinguishes this case from the line of authorities relied upon by the 1 st Respondent in pushing the doctrine of “ exhaustion ”, such as the case of Speaker of the National Assembly v Karume [1992] KECA 42 (KLR) , the case of Dickson Mukwe Lukeine v Attorney General & 4 Others [2012] KLR , the case of Geoffrey Muthiga Kabiru & 2 Others v Samuel Munga Henry & 1756 Others [2015] eKLR , the case of Obonyo v Nyanchwa Adventist Mission Hospital Board [2025] KEELRC 1535 (KLR) , and the case of Lilande v Heri Development Limited & 2 Others [2024] KEELC 13261. This is because in those cases, a party filed, or sought to maintain an ordinary suit or claim on the merits without any resort at all to the agreed or contractually agreed alternative mechanism of Arbitration, thus correctly prompting the Court to decline jurisdiction in light of the existence of an Arbitration clause. The circumstances here are different. The Applicants did resort to Arbitration as required by the subject contract. They declared a dispute in October 2022, engaged in the contractually mandated consultation, and eventually filed a Statement of Claim before a duly constituted Arbitrator in December 2023. What is before this Court is therefore not a substitute suit filed in place of Arbitration, but simply an Application, brought squarely under Section 7 , for interim protective measures pending that very Arbitration, a remedy the Arbitration Act and the parties' own contract expressly contemplate as compatible with, not a departure from, the arbitration clause. Clearly, the “ exhaustion ” doctrine, as canvassed in the authorities cited by the 1 st Respondent, does not, without more, apply to oust the Court's Section 7 jurisdiction in these circumstances. Prayer 2(a) is therefore properly before this Court but only in seeking protective orders, in the interim, pending hearing and determination of the ongoing Arbitration proceedings
21. Be that as it may, the jurisdiction under Section 7 is nonetheless limited. This Court cannot, under the guise of Section 7 , exceed its mandate by also granting what is in substance final relief fully determining the dispute, as that would amount to usurping the Arbitrator's mandate. This position was affirmed by Nyamu JA in the Court of Appeal case of Safaricom Limited v Ocean View Beach Hotel Limited & 2 Others, [2010] KECA 346 (KLR) , as follows:
“Interim measures of protection in arbitration take different forms, and it would be unwise to regard the categories of interim measures as being in any sense closed (say restricted to injunctions, for example), and what is suitable must turn or depend on the facts of each case before the court or the tribunal — such interim measures include measures relating to preservation of evidence, measures aimed at preserving the status quo, measures intended to provide security for costs, and injunctions. Under our system of the law on arbitration, the essentials which the court must take into account before issuing the interim measures of protection are:”
1. The existence of an arbitration agreement.
2. Whether the subject matter of arbitration is under threat.
3. In the special circumstances, which is the appropriate measure of protection after an assessment of the merits of the application?
4. For what period must the measure be given, especially if requested before the commencement of the arbitration, so as to avoid encroaching on the tribunal's decision-making power as intended by the parties?”
22. Section 7 , as also adopted by the parties’ own agreement at Clause 7.15 and 7.16 , is therefore merely intended to assist in preserving the subject matter of Arbitration without at all straying into also determining the merits of the dispute. Consequently, the doctrine of “ exhaustion ” of remedies does not ousts the jurisdiction of the Court under Section 7 to issue an interim protective injunction pending Arbitration.
23. The above cannot however be also said of prayers 2(b), (c), (d) , and also prayers 3, 4 and 5 of the Application, which seek such far-reaching orders as specific performance, restitution and damages, respectively. Each of those prayers calls upon this Court to determine liability on merits at an interlocutory stage, before the Arbitrator has had the opportunity to do that he was appointed to; to determine the dispute on merits. To determine these prayers would be a clear usurpation of the Arbitral jurisdiction as was also cautioned by Nyamu JA in the same Safaricom v Ocean Beach case (supra) in the following manner:
“In the matter before us, the court went on to make orders which undermined the arbitration and the outcome of the arbitration contrary to section 17 of the Arbitration Act. A court of law when asked to issue interim measures of protection must always be reluctant to make a decision that would risk prejudicing the outcome of the arbitration.”
24. To the above extent, this Court lacks the jurisdiction under Section 7 of the Arbitration Act , and also under Clause 7.15 and 7.16 of the parties own Agreement, to determine prayers 2(b), (c), (d) , and also prayers 3, 4 and 5 of the Application herein, as those are substantive prayers exclusively reserved for the Arbitration, and in respect to which this Court’s jurisdiction is expressly ousted.
25. Before I conclude, I observe that the Applicants’ Counsel seems to have “thrown his hands up the air in despair” or surrendered seemingly erroneously believing that he no longer has any options in the Arbitration simply because the 1 st Respondent has allegedly “deliberately” “frustrated” the arbitral process causing it to stall. Far from it, the drafters of the Arbitration Act being aware of the possibility of difficult parties who may come all out to frustrate the arbitral process, wisely inserted various provisions into the Act giving an Arbitrator wide powers to take pre-emptive action against any such party who dishonestly deliberately seeks to frustrate or stall the process, or one who is unjustifiably unwilling to participate. The Act even contains provisions empowering the Arbitrator to proceed ex parte if necessary, after according the “offending” party sufficient time to “mend his ways”, and an ex parte Award given under such circumstances is fully valid provided the Arbitrator has followed the due process. The Applicant thus only seeks to read through the Act, identify the relevant powers, and move the Arbitrator to invoke those powers if necessary.
Final Orders
26. For the above reasons, the Preliminary Objection partially succeeds, only to the following extent: follows:
i) The objection that the instant Application dated 30/10/2025 falls entirely within the exclusive jurisdiction of the Environment and Land Court (ELC) is dismissed.
ii) The objection that this Court lacks jurisdiction by reason of the Arbitration agreement, under the doctrine of “ exhaustion ” of remedies, to grant protective orders of injunction pending Arbitration is dismissed. Prayer 2(a) of the Application is accordingly found to be properly before this Court
iii) The objection that prayers 2(b), (c), (d) , and also prayers 3, 4 and 5 of the Application offend the doctrine of “ exhaustion ” of remedies is however upheld as the orders sought under those prayers, are of the nature that is exclusively reserved for determination in the Arbitration. The said prayers are consequently struck out.
iv) The Court shall now proceed to determine only the remaining Prayer 2(a) of the Application.
vi) Costs of the Preliminary Objection shall be in the Cause.
DELIVERED, DATED AND SIGNED AT NAIROBI THIS 14TH DAY OF AUGUST 2026
.................................
WANANDA JOHN R. ANURO
JUDGE
Delivered in the presence of:
Ms. Syengo for the Applicants
Mr. Nyamagwa for the 1 st Respondent
N/A for the 2 nd Respondent
Court Assistant: Amos Boso
Milimani HCCOMMMISC/E1215/2025