https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9018

**Republic of Kenya** **In the High Court at NAIVASHA** **HIGH COURT Civil CASE NO. E001 of 2022** **KAWA COMMERCIAL ENTERPRISE LTD-----------------AppLICant** **VERSUS** **LAIKIANA RESORT & LODGES LTD-------------------Respondent** **RULING** 1. This ruling is in respect of a preliminary objection raised by the respondent challenging the competence of the applicant’s Notice of Motion dated 7th November 2025. In the preliminary objection, the respondent invited this court to find that it lacked jurisdiction to hear and determine the application. The grounds anchoring the preliminary objection are reproduced verbatim hereunder: - 1. ***That the application offends the provisions of Section 10 and 18 of the Arbitration Act, No. 4 of 1995 and for that reason, the same is bad in law and incurably defective and should be dismissed with costs for being an abuse of the process of the Honourable Court.*** 2. ***That the Application offends the provisions of Section 6 of the Civil Procedure Act (Cap 21) Laws of Kenya, because this matter is pending publication of the award by Mr. R Billing, Chartered Arbitrator and parties are bound by the orders of this Honourable Court referring the matter to Arbitration as per their Agreement dated 26th December 2020, hence, the Application is Sub judice the matter pending before the Arbitral Tribunal.*** 3. ***The Honourable Court determined all applications before Mr. R. Billings was appointed by the parties and seized of the matter before him which has been heard and determined and what remains is only publication of the award after the parties have paid the Arbitrator's fees, which parties have not complied with and further, this present application offends provisions of Section 7 of the Civil Procedure Act and amounts to an abuse of the process and the Honourable Court lacks jurisdiction to handle the same and for that reason, the Application should be dismissed with costs, for being dead before arrival.*** 2. In the impugned application, the applicant seeks a review of this court’s order issued on 2nd August 2022, granting temporary injunction against it, its directors, agents, servants, managers or any other person from trespassing upon, entering, remaining on, evicting or interfering with and/or disrupting the respondent’s business, Hotel and Restaurant known as Fish Eagles Inn premised on land LR No. 404/2 and IR No. 3792, pending referral of the parties dispute to arbitration for hearing and determination. 3. The applicant further sought orders to compel advocates on record for the parties to open a joint interest earning account in which the respondent would be ordered to deposit rent arrears from March 2023 to date and all subsequent rents due under the lease dated 26th November 2020 and that in default of compliance, the applicant be at liberty to evict the respondent from the premises. 4. From the record, it is apparent that the applicant is the lawful and beneficial owner of LR 404/2 and I.R. No. 3792 (hereinafter the suit property) and vide an agreement dated 26th November 2020, it leased the suit property to the respondent. Thereafter, a dispute arose under the lease which culminated into institution of the instant suit. By an application dated 11th April 2022, the respondent approached this court seeking conservatory orders pending referral of the dispute to arbitration which orders the court granted in its ruling delivered on 28th July 2022. It is clear from the court record that the dispute was subsequently referred to arbitration for hearing and final determination. 5. In the application, the applicant contends that since the court issued the aforesaid conservatory orders, the respondent has continued to occupy the suit property without paying rent and the rent outstanding at the time of filing the application was in excess of Kshs. 39,900,000; that it was unable to recover the amounts owed due to existence of the conservatory orders hence the prayer seeking review of the said orders; that in filing the application, it was seeking to mitigate its losses pending conclusion of the matter. 6. The respondent opposed the application vide a replying affidavit sworn by its director, *Mr. James Kariuki Kinyua*, on 12th November 2025. Briefly, the deponent invited this court to find that the parties had submitted themselves to arbitration and the matter was heard to conclusion by the Arbitrator *Mr R. Billing* but the award was awaiting publication after payment of the arbitral fees; that the application should have been made before the Arbitral Tribunal under *Section 18* of the *Arbitration Act* ( the Act) and *Rule 35* of the *Arbitration Rules 2020* ; that under *Section 7* of the Act, the High Court can only issue interim orders before parties submitted themselves to arbitration. 7. Additionally, the respondent averred that *Section 10* of the Act barred this court from intervening in matters under the Act save for the exceptions set out in the Act. 8. On 13th November 2025, the court directed that the preliminary objection be prosecuted by way of written submissions. The respondent’s submissions dated 20th November 2025 were filed by its advocates on record *Ms. Abwuor & Co. Advocates* while those of the applicant dated 20th January 2026 were filed on its behalf by *Ms. WWM Advocates LLP.* 9. In its submissions, the respondent reiterated the averments made on its behalf in the replying affidavit and urged the court to find that since the matter was pending before the Arbitral Tribunal, pursuant to *Sections 10* and *Section 18* of the Act, the court lacked jurisdiction to hear and determine the application. For this proposition, reliance was placed on the case of ***Owners of Motor Vehicle Vessel V Caltex oil (Kenya) Ltd (1989) KECA 48 KLR***. 10. Further, the respondent submitted that considering that the party’s dispute had been heard and determined by the arbitrator as only publication of the award was pending, the application offended *Sections 6* and *Section 7* of the *Civil Procedure Act* which deal with the sub-judice Rule and the principle of res judicata respectively and was therefore bad in law and amounted to an abuse of the court process. 11. The applicant on its part, relying on the authority of ***Victoria Furniture Limited V Zadok Furniture Systems Ltd [2019] KEHC 12432 [KLR]*** argued that although applications for review were not provided for in the *Arbitration Act* and the *Rules* ,the application was properly before the court as it was brought under *Order 45* of the *Civil Procedure Rules 2010* which allows a court to review its orders for sufficient cause; that *Section 7* of the Act granted the court powers to issue interim reliefs with an obligation to review such reliefs; and, that the respondent had not demonstrated how the application offended *Section 10* and *Section 18* of the Act. 12. According to the applicant, the respondent had not satisfied the test set out by the Supreme Court of Kenya in ***Kenya National Commission on Human Rights vs Attorney General, Independent Electoral & Boundaries Commissions & 16 Others (Interested Parties) [2020] eKLR*** and ***John Florence Maritime Services Limited & another vs Cabinet Secretary Transport & Infrastructure & 3 Others [2021]*** regarding the application of the doctrine of sub judice and res judicata. 13. Lastly, the applicant argued that res judicata was a matter of fact as the Court had to examine previous court proceedings and arbitral tribunal proceedings to make a determination whether or not the matter was res judicata; that for this reason, the preliminary objection failed to satisfy the test set out in the cases of ***Oraro V Mbaja [2005] KEHC 3182 (KLR)***, ***Ngugi V County Government of Muranga*** and ***National Land Commission & 4 others [2022] KEELC 2540 (KLR***) and ought to be dismissed with costs. 14. On the date the preliminary objection was fixed for highlighting of submissions, only *Ms. Okoth*, learned counsel for the applicant attended the court. There was no representation for the respondent, though duly served. In her oral submissions, in addition to re-iterating the applicant’s written submissions, *Ms. Okoth* gave a background of the suit and the context in which the application was filed. 15. I have carefully considered the preliminary objection and the rival written submissions made on behalf of the parties as well as the authorities cited. Having done so, I find that the only issue for my determination is whether the preliminary objection was merited. 16. The law on what in law constitutes a preliminary objection is well settled. In the *locus classicus* case of ***Mukisa Biscuit Company V West End Distributors Ltd [1969] EA 696***, Sir Charles Newbold defined a preliminary objection in the following terms; ***“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.”*** 1. The Supreme Court in [***Aviation & Allied Workers Union Kenya v Kenya Airways Limited & 3 others***](https://new.kenyalaw.org/akn/ke/judgment/kesc/2015/23)***[2015] eKLR*** weighed in on the subject by citing with approval the ***Mukisa Biscuit case (supra)*** and proceeded to observe as follows; ***“Thus a preliminary objection may only be raised on a ‘pure question of law’. To discern such a point of law, the court had to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prime facts presented in the pleadings on record.”*** 1. It is trite that when the jurisdiction of a court is challenged, it must be determined at the earliest possible opportunity for as stated in the case of ***Owners of Motor Vessel “Lilian S” v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR****);* ***“….Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds that it is without jurisdiction.”*** 1. In this case, there is no doubt that the preliminary objection raises a jurisdictional issue, a preliminary point of law which was capable of disposing of the applicant’s application summarily. In the premises, I am satisfied that the preliminary objection meets the threshold of a preliminary objection as defined in law. 2. In determining whether or not the preliminary objection was merited, this court must consider the undisputed facts concerning the impugned application. The uncontested facts are that both parties have submitted themselves to arbitration; a sole Arbitrator, *Mr R. Billing,* heard and determined their dispute but is yet to publish the arbitral award as the parties are yet to settle his fees - See the Arbitrator’s letter dated 28th May 2025. This means that the arbitral proceedings are still active. 3. The question that now begs an answer is whether the court has jurisdiction to review the orders made in its ruling dated 28th July 2022 after the parties had submitted themselves to arbitration under the *Arbitration Act*. *Section 10* of the *Arbitration Act* states that: - ***“Except as provided in this Act, no court shall intervene in matters governed by this Act.”*** 1. The Supreme Court in the case of ***Nyutu Agrovet Limited v Airtel Networks Kenya Limited; Chartered Institute of Arbitrators-Kenya Branch [2019] KESC 11 (KLR)*** interrogated the import of *Section 10* of the Act and juxtaposed it to the Model Law and stated as follows : - ***“ 57. Thus, it is reasonable to conclude that just like article 5, Section 10 of the Act was enacted, to ensure predictability and certainty of arbitration proceedings by specifically providing instances where a court may intervene. Therefore, parties who resort to arbitration, must know with certainty instances when the jurisdiction of the Courts may be invoked. According to the Act, such instances include, applications for setting aside an award, determination of the question of the appointment of an arbitrator and recognition and enforcement of arbitral awards amongst other specified grounds.”*** 1. Further, the Court of Appeal in ***Owner of Motor Vessel “Mirembe Judith” v Jade International Shipping Line DMC [2023] KECA 452 (KLR)*** held that: - ***“ 67. We are therefore of the view that the proceedings before the High Court were not brought pursuant to section 7 of the Arbitration Act. Being substantive action, the High Court ought not to have entertained or continued to entertain the said proceedings once the parties brought to its attention the existence of the arbitral proceedings. Section 10 of the Arbitration Act bars the court from intervening in matters governed by that Act. This position was affirmed by this court in East African Power Management Limited v Westmont Power (Kenya) Limited civil appeal No 55 of 2006 where the court expressed itself as follows:*** ***“The intention of the parties to refer any dispute to arbitration is clearly expressed in the clause and as held by the superior court it was not only necessary to give effect to the intention of the parties but it was a mandatory duty on the part of the court. Again it has not been demonstrated that there is no agreement at all to refer to arbitration or that it is not valid. Thus, the court’s limited role in intervening where parties have agreed to refer a matter to arbitration is set out in section 10 of the Arbitration Act as follows: “except as provided in this Act no court shall intervene in matters governed by this Act.” The equivalent to article 6 of the Model Law upon which the Kenyan provision is based reads: “In matters governed by this law, no court shall intervene except where so provided by this Law.” In short, the role of the court as captured in the 1995 Act is a facilitative role. Thus, in the (ICC Publication, 1993) an English Judge, Lord Mustill in “Comments and Conclusions” in Conservatory & Provisional Measures in International Arbitration 9th Joint Colloquium” has described the relationship between the courts as follows: “ideally, the handling of arbitral disputes should resemble a relay race. In the initial stages, before the arbitrators are seized of the dispute, the baton is in the grasp of the court; for at that stage there is no other organization which could take steps to prevent the arbitration agreement from being ineffective. When the arbitrators take charge, they take over the baton and retain it until they have made an award. At this point, having nolonger a function to fulfil, the arbitrators hand over the ‘baton so that the court can in case of need lend its coercive powers to the enforcement of the award.” Going by the above, the issues which have been raised...are all well within the ambit of a future arbitrator appointed under the agreement in question. Thus, whether or not there is a dispute is a matter the arbitrator can rule on. Similarly, whether or not the arbitrator to be appointed has jurisdiction to rule on his jurisdiction is beyond question. He would be entitled to rule on his jurisdiction.”*** ***68. In our view, the proceedings commenced before the High Court were not expressed to be facilitative in nature but were completely separate proceedings. We accordingly find that one cannot commence or maintain proceedings which run concurrently with arbitral proceedings. To do so amounts to an abuse of the process.”*** 1. As stated earlier, in the pending application, besides the court being asked to review its orders of temporary injunction restraining the applicant from interfering with the respondent’s quiet occupation of the suit property, the applicant was in addition seeking orders to compel the advocates on record to open a joint interest earning account and to compel the respondent to deposit in the account to be opened outstanding rent arrears and all rents due as per terms of their lease at the pain of eviction. 2. The above is despite the fact that the interpretation of the aforesaid lease, the rent payable and amounts owed as rent arrears constituted a substantial part of the dispute that was referred to the arbitral tribunal for determination. As the arbitral award is yet to be published, it’s impossible to tell whether the orders sought in the application on issues related to the outstanding rent arrears or rent payment for the suit property are issues which have been addressed in the arbitral award and if so, in which way. 3. Although I agree in principle with the holding in ***Victoria Furniture Limited V Zadok Furniture Systems Ltd [2019] KEHC 12432 [KLR]*** , I find that the authority is distinguishable from the current one as in the ***Victoria Furniture Limited*** case, the court was being asked to review its decision on an application which had sought setting aside of the arbitral award under *Section 35* (1) of the Act. This means that the arbitral proceedings had been finally concluded and the arbitral award had been published unlike in this case where the arbitral award had not been published. I find that the application with regard to the prayers touching on rent arrears and rent payment cannot be entertained by the court at this point in time given that the arbitral award is unknown and determining the application may give rise to parallel decisions which may create confusion and embarrass the two different resolution forums. 4. Secondly and without making any finding, the order seeking review of the conservatory orders issued by this court pending referral of the dispute for arbitration has apparently been overtaken by events. 5. In view of the foregoing and considering the explicit provisions of *Section 10* of the *Arbitration Act*, I have come to the inevitable conclusion that this court lacks jurisdiction to hear and determine the application dated 7th November 2025. 6. Having found as I have above, I find that this court does not have any basis to consider whether or not the application was sub judice or res judicata. 7. For all the above reasons, I find merit in the preliminary objection and it is hereby upheld. The application dated 7th November 2025 is consequently struck out with costs to the respondent. 8. It is so ordered. **DATED, SIGNED** and **DELIVERED** at NAIVASHA this 19th June of 2026 **C. W GITHUA** **JUDGE** **In the Presence of:** *Ms. Okoth* for the Applicant *Ms. Chepkosgei* for the respondent *Hannah Mbugua*, Court Assistant