https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10699

Mutonga v Planate Management Group Africa Limited (Miscellaneous Civil Application E007 of 2025) [2026] KEHC 10699 (KLR) (16 July 2026) (Ruling) Neutral citation: [2026] KEHC 10699 (KLR) Republic of Kenya In the High Court at Kibera Miscellaneous Civil Application E007 of 2025 DR Kavedza, J July 16, 2026 Between Eric Gathogo Mutonga Applicant and Planate Management Group Africa Limited Respondent Ruling 1.The applicant filed the application dated 18th December 2025 seeking review of the ruling delivered on 12th November 2025 by Hon. P.W. Mbulikah (Principal Magistrate) in Dagoretti MCCC No. E030 of 2025, Eric Gathogo Mutonga v Planate Management Group Africa Limited. The impugned ruling upheld the respondent's preliminary objection and dismissed the applicant's suit. The applicant seeks an order setting aside that decision, reinstatement of the suit for hearing on the merits, and costs. 2.The application is premised on the contention that the trial court improperly upheld a preliminary objection by determining contested factual issues contrary to the settled principles governing preliminary objections. The applicant further contends that the court wrongly declined jurisdiction by directing the parties to pursue alternative dispute resolution, thereby denying him his constitutional right of access to justice. 3.The application is supported by the applicant's affidavit sworn on 18th December 2025, reiterating that his claim was dismissed without being heard on its merits. 4.The respondent opposes the application through the replying affidavit of Lily Ngetich sworn on 11th May 2026. It is deponed that Clause 18 of the Consultancy Agreement expressly requires disputes to be resolved through negotiation and, where unsuccessful, by mediation and thereafter binding arbitration under the Chartered Institute of Arbitrators. The respondent maintains that the applicant instituted the suit without exhausting the agreed dispute resolution mechanism and that the trial court properly upheld the preliminary objection. 5.The application was canvassed by written submissions, which I have considered. 6.The sole issue for determination is whether the trial court erred in upholding the preliminary objection on the basis that the applicant had failed to exhaust the contractual dispute resolution mechanism. 7.The doctrine of exhaustion is firmly embedded in Kenyan law and gives effect to Article 159(2)(c) of the Constitution, which requires courts to promote alternative forms of dispute resolution, including mediation and arbitration. It recognises that where parties have agreed upon or legislation provides an effective dispute resolution mechanism, that mechanism ought to be pursued before the jurisdiction of the court is invoked. 8.In Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others [2015] eKLR, the Court of Appeal stated:“It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews... The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the courts... This accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution." 9.Equally, in Speaker of the National Assembly v Karume [1992] KLR 21, the Court of Appeal held:“Where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed." 10.The material placed before the Court shows that Clause 18 of the Consultancy Agreement provides a structured dispute resolution process requiring negotiation in the first instance and, failing agreement, mediation and binding arbitration under the Chartered Institute of Arbitrators. Unlike contractual clauses that permit one party to unilaterally determine disputes, the clause provides for an independent arbitral process recognised under the Arbitration Act. 11.The applicant has neither alleged nor demonstrated that the agreed mechanism is unlawful, ineffective, biased or incapable of affording an appropriate remedy. No evidence has been placed before this Court to show that the respondent frustrated or prevented the commencement of the agreed process. The mere existence of an arbitration clause does not infringe the constitutional right of access to justice. Rather, it represents the parties' voluntary choice of the forum through which disputes arising from their contract will be resolved. 12.The applicant argues that the trial court improperly entertained factual matters in determining the preliminary objection. I do not agree. The existence of Clause 18 and the applicant's failure to invoke the agreed dispute resolution mechanism were matters ascertainable from the pleadings and the contract itself. The objection therefore raised a pure point of law on the competence of the suit and was properly taken as a preliminary objection within the principles enunciated in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, where Law JA stated:“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." 13.The applicant has relied on authorities where courts declined to enforce contractual dispute resolution clauses because they vested the power of final determination in one of the contracting parties. Those authorities are distinguishable. In the present case, the agreed mechanism culminates in independent arbitration and/or meditation therefore satisfies the constitutional requirement of fairness, impartiality and procedural propriety. 14.I am therefore satisfied that the trial court correctly found that the suit had been prematurely instituted before exhaustion of the contractual dispute resolution mechanism. The applicant has not established any error apparent on the face of the record or any sufficient reason to warrant review of that decision. 15.Consequently, the application dated 18th December 2025 lacks merit and is hereby dismissed. The applicant shall bear the costs of the application.Orders accordingly. RULING DATED AND DELIVERED VIRTUALLY THIS 16TH DAY OF JULY 2026.................D. KAVEDZAJUDGEIn the presence of:Mr. Felix Momanyi for the ApplicantRespondents AbsentKarimi Court Assistant.