https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8652

Michael & another v Breakfast and Business Group Ltd & 6 others (Miscellaneous Application E1186 of 2025) [2026] KEHC 8652 (KLR) (Commercial and Tax) (19 June 2026) (Ruling) Neutral citation: [2026] KEHC 8652 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Miscellaneous Application E1186 of 2025 JWW Mong'are, J June 19, 2026 Between Maina Michael 1st Applicant Muli Erick Kinyowe 2nd Applicant and Breakfast And Business Group Limited Respondent and Odyssey Capital Limited (Under Administration) 1st Interested Party Odyssey Capital 2nd Interested Party Peter Kimari Kihara 3rd Interested Party Adedaji Oluwaseum 4th Interested Party Akindele Akiotye Adeoye 5th Interested Party Ladkoo Girish Rao 6th Interested Party Ruling Introduction and Background 1.The Applicants filed the Originating Summons dated 24th November 2025 under inter alia sections 7 and 17(6) of the Arbitration Act seeking to stay all further arbitral proceedings between the parties that are before Mr. Anthony Milimu Lubulellah and set aside the Arbitrator's ruling delivered on 4th November 2025 and allow the Applicants' application dated 2nd October 2025 that was dismissed by the Arbitrator. The application is supported by the supporting affidavit of the 1st Applicant sworn on 24th November 2025. 2.The Applicants also filed the Notice of Motion dated 18th December 2025 seeking to stay the arbitral proceedings before the Arbitrator pending the hearing and determination of their other application, which prayer was granted on 22nd December 2025. In response to the applications, the Respondent filed the Notice of Preliminary Objection dated 19th January 2026 seeking to strike out the applications on grounds that the matter was already properly determined by the Arbitrator and there is no recourse for an appeal under the Arbitration Act. Therefore, the Court lacks jurisdiction to hear the applications. 3.The Respondent further contends that the Applicants' earlier application to the Arbitrator dated 2nd October 2025 and the Arbitrator's Ruling dated 4th November 2025 were not jurisdictional applications or objections and they do not fall within the scope of sections 7 and 17(6) of the Arbitration Act. The Objection has been canvassed by way of written submissions which I have considered and I will be making relevant references to the same in my analysis and determination below. Analysis and Determination 4.As submitted by the Respondent, the leading decision on Preliminary Objections is that of the predecessor of the Court of Appeal in Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd. (1969) EA 696 and the decision has since been affirmed by the Supreme Court in Joho & another v Shahbal & 2 others [2014] KESC 34 (KLR)]. In Mukisa(supra) Law J.A., and Newbold P. respectively at 700 and 701, held as follows:Law, JA.:“So far as I am aware, a Preliminary Objection consists of a pure point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued ass a preliminary point may dispose of the suit. Examples are an objection on 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.”Newbold, P.:“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. The improper raising of points by way of Preliminary Objection does nothing but unnecessarily increases costs and, on occasion, confuse the issues. This improper practice should stop.” 5.In summary, for one to succeed in putting up a Preliminary Objection, the facts pleaded by the other party are assumed to be correct; it must be a matter of law which is capable of disposing off the suit; it must not be blurred by factual details calling for evidence; it must not call upon the Court to exercise discretion. The Objection challenges inter alia the jurisdiction of this court. An objection to the jurisdiction of the court has been cited as one of the preliminary objections that consists a point of law. This is so because ‘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 tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.’ (See Nyarangi JA., in The Owners of Motor vessel Lillian ‘S’ v Caltex Kenya Limited [1989] KECA 48 (KLR)]. It is therefore my finding that the challenge on the jurisdiction of this court is a point of law that can be brought by way of a preliminary objection. 6.The Respondent submits that the Applicants' application before the Arbitrator sought to have a consent adopted and proceedings terminated and this was not an application challenging the Arbitrator's jurisdiction because by filing it, the Applicants actually acquiesced to the Arbitrator's jurisdiction. It submits that the Arbitrator's ruling dated 4th November 2025 was a final ruling on a matter within his authority and the Arbitration Act does not allow an appeal against such an interlocutory ruling. It states that the Applicants are trying to mount an impermissible appeal that offends the finality principle enshrined in the Arbitration Act. 7.The Respondent submits that section 17(6) only allows court intervention where an arbitrator has ruled on his substantive jurisdiction as a preliminary question. That in this case, the Arbitrator never doubted his jurisdiction as he ruled on the effect of a settlement agreement, a procedural and substantive determination within his mandate. That section 7 deals with interim measures of protection not challenging an arbitrator's ruling and the Applicants are not seeking interim protection but are seeking substantive review and reversal of the Arbitrator's decision. 8.In their response, the Applicants submit that the non-intervention principle under section 10 of the Arbitration Act has exceptions and that courts may intervene where the Act expressly provides and sections 7 and 17(6) are such exceptions. That section 17(6) permits a party aggrieved by an arbitral tribunal's ruling affirming its jurisdiction to apply to this Court within 30 days and that the Applicants' application to the Arbitrator dated 2nd October 2025 challenged the Arbitrator's jurisdiction to hear matters that had been compromised by the consent dated 2nd July 2024. They submit that in the Arbitrator’s ruling dated 4th November 2025, he expressly held that notwithstanding the existence of a consent compromising the dispute, he retained jurisdiction to proceed with the hearing and that this finding went to the very root of the tribunal's jurisdiction. That once parties validly compromised the dispute referred to arbitration, the substratum of the reference was extinguished and the tribunal cannot assume jurisdiction over a dispute that no longer exists. 9.Section 17(6) of the Arbitration Act provides that “Where the arbitral tribunal rules as a preliminary question that it has jurisdiction, any party aggrieved by such ruling may apply to the High Court, within 30 days after having received notice of that ruling, to decide the matter.” I have gone through the Arbitrator’s ruling of 4th November 2025 and I note his findings that under section 31(1) of the Arbitration Act, all parties are required to agree to the consent and that he cannot record a settlement under the said provision when any party objects or does not request the Arbitrator to adopt the consent. I find this is to be a procedural determination under section 31 and not a ruling on whether he had power to hear the dispute. 10.The Arbitrator further found that the consent dated 2nd July 2024 arose during proceedings before the late Arbitrator, and section 16(2) requires the new Arbitrator to hear the matter afresh and I find this to be an interpretation of section 16 not a ruling on jurisdiction. The Arbitrator also ruled that the consent may be received as evidence but is liable to be challenged by any party which I find to be an evidentiary ruling and a decision made within his jurisdiction, not about his jurisdiction. At no point did the Arbitrator doubt his power to hear the underlying dispute and he exercised that very authority to determine that a consent award was inappropriate at the time. The tenor of the Arbitrator’s ruling is that he addressed how the proceedings should be conducted, that is, by hearing the dispute afresh, with the consent as potential evidence, not whether he had the power to conduct them at all. 11.The Arbitrator never ruled on his substantive jurisdiction as a preliminary question as no party challenged his jurisdiction to hear the dispute. The Applicants' application dated 2nd October 2025 asked for adoption of the consent and termination of the proceedings which is a merits request, not a jurisdictional challenge. The ruling was within his mandate and the Arbitrator's decision to reject the consent award and proceed to hearing was an exercise of his jurisdiction, not a ruling about his jurisdiction. As stated, section 17(6) is narrow as it only applies where the arbitrator expressly rules on his own jurisdiction as a preliminary question. In this matter, the Arbitrator made no such separate preliminary ruling. 12.I am therefore in agreement with the Respondent that the Applicants are trying to treat the Arbitrator’s ruling as a jurisdictional ruling to create a right of appeal that the Arbitration Act does not give them at this stage. Conclusion and Disposition 13.For these reasons, I uphold the Objection and strike out the applications dated dated 24th November 2025 and 18th December 2025 with costs. DELIVERED VIRTUALLY AT NAIROBI THIS 19TH DAY OF JUNE 2026............................................................................J.W.W. MONGAREJUDGEIn The Presence OfMs. Musau for the Applicants.N/A for the Respondents.Amos- Court Assistant