https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3163

**** **REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT NAIROBI MILIMANI LAW COURTS** **ELC CASE NO. E013 OF 2026** **SALOME NYAMBURA KAGOMBE...............................................PLAINTIFF/APPLICANT** **-VERSUS-** **JOSEPH KAMAU MWANGI.............................................1st RESPONDENT/DEFENDANT** **THE CHIEF LANDS REGISTRAR, NAIROBI(Sued through the Honourable Attorney General)……………………………………………………….………………2nd RESPONDENT** **RULING** **The Application** 1. This ruling concerns the Plaintiff/Applicant’s Notice of Motion dated 16th January 2026 brought pursuant to **Article 40(1) of the Constitution of Kenya, Sections 13(1), 13(2)(d), 13(2)(e), 13(5)(a), 18(c), 19 and 27 of the Environment and Land Court Act, Section 3A of the Civil Procedure Act, Order 40 Rules 1, 2 and 4 of the Civil Procedure Rules, paragraph 20 of the ELC Practice Directions, 2014 and Section 68 of the Land Registration Act.** 2. In the application, the Plaintiff/Applicant seeks temporary injunctive orders restraining the 1st Respondent/Defendant from alienating, transferring, leasing, charging, subdividing or in any manner dealing with Title Number NAIROBI/BLOCK 188/350 pending the hearing and determination of the application and the suit, an inhibition order against the suit property, and preservation of the sum of KES 3,000,000/= allegedly refunded to the Plaintiff/Applicant. 3. The application is premised on the grounds set out on its face and supported by the affidavit of SALOME NYAMBURA KAGOMBE sworn on 16th January 2026. The Plaintiff/Applicant depones that she entered into a Sale Agreement dated 2nd November2018 with the 1st Respondent/Defendant for the purchase of a portion of L.R. No. 11646/9 at a purchase price of KES 30,000,000/= and subsequently paid a deposit of KES 6,000,000/= in accordance with the agreement. She further depones that upon payment of the deposit, the 1st Respondent/Defendant granted her possession of the suit portion where she has remained in occupation and undertaken farming activities continuously and without interruption for over seven years. 4. The Plaintiff/Applicant further avers that the 1st Respondent/Defendant undertook the process of removing caveats, cautions and prohibitory orders affecting the mother title and thereafter subdivided the property resulting in the issuance of Title Number NAIROBI/BLOCK 188/350. 5. She states that despite confirming her readiness and ability to pay the balance of the purchase price amounting to KES 24,000,000/=, the 1st Respondent/Defendant failed to furnish the completion documents required under the Sale Agreement. Instead, on 6th January 2026, she allegedly received an unsolicited refund of KES 3,000,000/= through the 1st Respondent/Defendant’s advocates without issuance of any completion notice or rescission notice as stipulated under Clause 9.1 of the Sale Agreement. 6. It is the Plaintiff/Applicant’s contention that the actions of the 1st Respondent/Defendant amount to an unlawful repudiation of the Sale Agreement and an attempt to defeat her legal and equitable interests over the suit property despite her continued possession and performance of her obligations under the contract. 7. She contends that unless the orders sought are granted, she risks suffering irreparable loss and damage as the suit property may be alienated or transferred to third parties, thereby rendering her occupation and claim for specific performance nugatory. Consequently, she urges the Court to preserve the suit property pending the hearing and determination of the suit. **The Response** 1. The **1st Respondent/Defendant** opposes the application through the **Grounds of Opposition dated 10th February 2026.** It is contended that the present suit and application are premature, incompetent and bad in law for failure by the Plaintiff/Applicant to comply with the mandatory dispute resolution mechanism agreed upon by the parties under the **Land Sale Agreement dated 2nd November 2018.** The 1st Respondent/Defendant avers that the agreement expressly provides for arbitration as the primary mode of dispute resolution in respect of any dispute arising out of the contract. 2. The 1st Respondent/Defendant further contends that the Plaintiff/Applicant has failed, neglected and/or refused to exhaust the agreed arbitral mechanism contrary to the doctrine of exhaustion and established principles of law. It is argued that by virtue of the arbitration clause contained in the agreement, this Honourable Court lacks jurisdiction to entertain the dispute at this stage since the parties contractually reserved such disputes for arbitration in the first instance. 3. The 1st Respondent/Defendant therefore asserts that the institution of the present suit amounts to an abuse of the court process intended to circumvent the agreed arbitration process. It is further contended that the Plaintiff/Applicant has not demonstrated any exceptional circumstances warranting departure from the arbitral process and, consequently, the suit and application are misconceived, legally untenable and ought to be struck out or stayed pending reference of the dispute to arbitration. **Submissions** 1. The application was canvassed by way of written submissions. The matter came up for mention on 16th April 2026 to confirm compliance with directions on filing submissions. The Court noted that the Plaintiff/Applicant had already filed her written submissions dated 2nd March 2026. On the said date, counsel for the 1st Respondent/Defendant was granted leave to file and serve submissions within fourteen (14) days, but no submissions were subsequently filed. The Court therefore proceeded on the basis of the pleadings, affidavits, submissions and authorities on record. 2. In her written submissions, the Plaintiff/Applicant identified the following issues for determination by the Court: whether the Plaintiff/Applicant had established a primafacie case with a probability of success; whether she stood to suffer irreparable injury incapable of compensation by an award of damages; whether the balance ofconvenience tilted in her favour; whether the sum of KES 3,000,000/= allegedly refunded by the 1st Respondent/Defendant ought to be preserved in a joint escrow account; and whether the Grounds of Opposition founded on the arbitration clause were sustainable in law. 3. In support of the said issues, the Plaintiff/Applicant relied on the decisions in **Giella Vs Cassman Brown & Co. Ltd [1973] E.A. 358, Mrao Ltd Vs First American Bank of Kenya Ltd & 2 others [2003] eKLR, Muchoki v Powerlife Kardi EA Limited [2026] KEHC 322 (KLR), Mwangi Vs Gathecha & 2 others [2025] KEELC 5070 (KLR), Akol Vs Namu & another [2025] KEELC 8484 (KLR), Shah Vs Shah & another [2026] KEELC 839 (KLR)** and **Kandara Residence Association & another Vs Ananas Holdings Limited & 4 others; Director of Survey & 3 others (Interested Parties) [2020] KEELC 1238 (KLR).** **Analysis and Determination** 1. Having considered the application, the affidavits on record, the Grounds of Opposition, the submissions by counsel and the authorities cited, the issues arising for determination are: 2. Whether the arbitration clause contained in the Sale Agreement divests this Court of jurisdiction to entertain the present application and suit at this stage. 3. Whether the Plaintiff/Applicant has established a basis for grant of interim preservatory reliefs pending arbitration **Issue No:1 Whether the arbitration clause contained in the Sale Agreement divests this Court of jurisdiction to entertain the present application and suit at this stage.** 1. On the first issue, the Court has considered the Grounds of Opposition filed by the 1st Respondent/Defendant together with the Sale Agreement dated 2nd November 2018 produced by the Plaintiff/Applicant. It is not disputed that the parties entered into a Sale Agreement containing an arbitration clause governing the resolution of disputes arising therefrom. 2. In particular, **Clause 22** of the agreement provides that any dispute arising out of or in connection with the agreement shall be referred to arbitration. The dispute presently before Court arises from the parties’ respective obligations under the Sale Agreement, including completion of the transaction, transfer of the suit property and the consequences arising from the alleged breach thereof. 3. I am of the understanding that the Arbitration Act having provided for the mode for hearing and determination of arbitral disputes, the provisions of the Civil Procedure Rules are generally inapplicable to arbitral proceedings. I am guided by the position taken by the Court of Appeal in **Anne Mumbi Hinga Vs Victoria Njoki Gathara [2009] eKLR** wherein the Court observed that***:“...All the provisions including the Civil Procedure Act, and Rules do not apply to arbitral proceedings because Section 10 of the Arbitration Act makes the Arbitration Act a complete code and Rule 11 of the Arbitration Rules cannot override Section 10 of the Arbitration Act which states; ‘Except as provided in this Act no court shall intervene in matters governed by this Act.’”*** 4. The procedure and authority for referral of disputes to arbitration is provided for under **Section 6(1) of the Arbitration Act** which stipulates 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 unless it finds—*** 5. ***that the arbitration agreement is null and void, inoperative or incapable of being performed; or*** 6. ***that there is not in fact any dispute between the parties with regard to the matters agreed to be referred to arbitration.”*** 7. It is now settled that where there exists a valid and binding arbitration agreement, the Court is enjoined to stay proceedings unless the exceptions set out under Section 6(1) of the Arbitration Act are established. The underlying principle is that courts must respect and give effect to arbitration agreements as an expression of party autonomy. 8. In the present case, the existence and validity of the arbitration clause has not been challenged and the disputes raised by the parties arise directly from the Sale Agreement executed between them. The Court further notes that the 1st Respondent/Defendant invoked the arbitration clause at the earliest opportunity before taking further steps in the proceedings. In the circumstances, I am persuaded that the dispute herein falls within the scope of matters contemplated under Clause 22 of the Sale Agreement and is therefore amenable to arbitration in the first instance. **Issue No. 2: Whether the Plaintiff/Applicant has established a basis for grant of interim preservatory reliefs pending arbitration** 1. Having found that the dispute herein falls within the scope of the arbitration clause contained in the Sale Agreement, the Court must now determine whether the Plaintiff/Applicant has established a basis for grant of interim preservatory reliefs pending reference of the dispute to arbitration. 2. The jurisdiction of this Court to grant interim measures of protection is donated by **Section 7(1) of the Arbitration Act** which provides that*:* ***“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.”*** 3. The principles governing the grant of interlocutory injunctions are now well settled. In **Giella Vs Cassman Brown & Co. Ltd [1973] E.A. 358**, the Court held that an applicant must establish a prima facie case with a probability of success, demonstrate that he or she stands to suffer irreparable harm incapable of compensation by an award of damages and, where the Court is in doubt, determine the matter on a balance of convenience. 4. Further, in **Mrao Ltd Vs First American Bank of Kenya Ltd & 2 others [2003] eKLR**, a prima facie case was defined as a case which on the material presented to the Court demonstrates the existence of a right apparently infringed by the opposite party as to call for an explanation or rebuttal from the latter. 5. From the material placed before Court, it is not disputed that the parties executed the Sale Agreement dated 2nd November 2018 for the purchase of a portion of land arising from L.R No. 11646/9 at a consideration of KES 30,000,000/**=.** The Plaintiff/Applicant exhibited evidence showing payment of the agreed deposit of KES 6,000,000/= pursuant to the agreement and further demonstrated that she took possession of the suit portion pending completion of the transaction. 6. The material on record further shows that the subdivision process was undertaken culminating in the issuance of Title Number NAIROBI/BLOCK 188/350, which the Plaintiff/Applicant contends constitutes the suit property contemplated under the agreement. The Plaintiff/Applicant also exhibited correspondence demonstrating readiness to complete the transaction and alleging that despite such readiness, the completion documents were not furnished and a refund of KES 3,000,000/= was subsequently remitted to her account. Without making definitive findings at this interlocutory stage, the Court is satisfied that the Plaintiff/Applicant has established an arguable and prima facie claim deserving preservation pending arbitration. 7. On whether the Plaintiff/Applicant stands to suffer irreparable harm, the Court notes that the Plaintiff/Applicant asserts possessory and equitable interests over the suit property arising from the Sale Agreement and her occupation thereof. In the absence of preservatory orders, there exists the risk of alienation, transfer or further dealings with the suit property before the arbitral process is concluded, which may render the arbitral proceedings nugatory. The balance of convenience therefore tilts in favour of preserving the substratum of the dispute pending the determination of the arbitral proceedings. In the circumstances, the Court is satisfied that the Plaintiff/Applicant has met the threshold for grant of interim preservatory reliefs pending arbitration. **Disposition** 1. Accordingly, I find merit in the Plaintiff/Applicant’s Notice of Motion dated 16th January 2026 and make the following orders: 2. These proceedings are hereby stayed pending reference of the dispute to arbitration in accordance with Clause 22 of the Sale Agreement dated 2nd November 2018. 3. Pending the hearing and determination of the arbitral proceedings, a temporary injunction is hereby issued restraining the 1st Respondent/Defendant from dealing in any manner whatsoever with Title Number NAIROBI/BLOCK 188/350. 4. Pending the hearing and determination of the arbitral proceedings, an inhibition order is hereby issued against Title Number NAIROBI/BLOCK 188/350. 5. The sum of KES 3,000,000/= remitted to the Plaintiff/Applicant on 6th January 2026 shall be preserved in a joint interest earning account in the names of counsel for the parties pending the arbitral proceedings. 6. The parties shall take steps to commence the arbitral process within thirty (30) days from the date hereof. 7. Costs shall abide the outcome of the arbitral proceedings. **It is so ordered.** **DATED**, **SIGNED** and **DELIVERED** virtually at **NAIROBI** on this **25th** day of **May, 2026.** **MOHAMMED N. KULLOW** **JUDGE** **Ruling delivered in the presence of: -** **Mr. Wambu** for the Plaintiff/Applicant **Mr. Maina** for 1st Respondent **N/A** for 2nd Respondent **Philomena W.** Court Assistant