Pumwani Riyadha Mosque Committee & another v Gikomba Business Centre Limited (Civil Appeal E965 of 2024) [2025] KECA 1257 (KLR)
The bottom line
#Kenya's Court of Appeal struck out a lease dispute filed in the High Court, ruling it belonged in the Environment and Land Court, and confirmed arbitration rights are waived if not invoked promptly.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the respondent's suit ought to have been dismissed for failing to disclose material facts
- 2.Whether the arbitration clause in the parties' agreement ousted the High Court's jurisdiction
- 3.Whether the dispute between the parties fell within the jurisdiction of the High Court
Key legal issues
#Material non-disclosure as a ground for striking out a suit
The ground fails where the allegedly undisclosed matters were disclosed in a replying affidavit and were not material because one suit had been withdrawn and the other stayed
The respondent's director's affidavit of 28th October 2024 disclosed the Magistrate's Court suit and its withdrawal, and averred that the BPRT proceedings had been stayed; these averments were unchallenged. Even if not disclosed in the plaint, the matters were not material to the suit before the High Court, so the ground fails.
Effect of an arbitration clause on the High Court's jurisdiction and on abuse-of-process claims
An arbitration clause does not oust the High Court's jurisdiction; the statutory route under section 6(1) of the Arbitration Act must be invoked at entry of appearance, and failure to do so amounts to waiver
Relying on Niazsons, Corporate Insurance and Adrec, the Court held the right to a stay and reference to arbitration arises only on a prompt application under section 6(1) made at entry of appearance, before taking further steps such as filing a defence. The appellants actively participated without such an application, waiving the right. Dock Workers Union was distinguished because section 6(1) never featured there. Hence the suit was not abusive.
Competing jurisdiction of the High Court and the Environment and Land Court over a commercial lease dispute
The dispute, though commercial in character, concerned the use and occupation of land under a 35-year lease and fell within the exclusive jurisdiction of the Environment and Land Court; the High Court lacked jurisdiction
Applying the predominant test, the Court acknowledged the dispute was contractual but held that the lease granted the respondent occupation and use of the suit property for economic activities, including putting up structures. Land use means activities practised on land to yield economic or social benefits. Unlike the chargee/chargeor relationship in Co-operative Bank v Njuguna, here the land was genuinely being used as contemplated by Article 162(2)(b), so the ELC, not the High Court, had jurisdiction.
Alleged breach of stare decisis by the learned Judge
Republic v Chengo did not lay down any binding principle on the specific ELC/High Court jurisdictional question, so the Judge committed no error in applying the predominant test
Co-operative Bank v Njuguna was decided later than Chengo and specifically addressed ELC versus High Court jurisdiction, whereas Chengo generally addressed judges sitting in courts to which they were not appointed in a criminal appeal. There was therefore no stare decisis from Chengo binding the Judge on the question before him, and the dominant-issue principle is recognized.
Legal principles established
#- A party who wishes to rely on an arbitration clause after suit is filed must, at the time of entering appearance or otherwise acknowledging the claim, apply under section 6(1) of the Arbitration Act for a stay and reference to arbitration; the right is lost by taking further steps such as filing a defence, and mere existence of an arbitration clause does not oust the court's jurisdiction
- The 'predominant test'/'dominant issue' principle is a recognized tool for resolving competing jurisdiction between the High Court and specialized courts under Article 162(2)
- Land use means the activities practised on land to yield economic or social benefits; a lease of land for economic activities and occupation engages the 'use of land' jurisdiction of the Environment and Land Court under Article 162(2)(b) and section 13(2)(a) of the Environment and Land Court Act
Court orders
#- 1.The ruling dated 5th December 2024 by Mabeya J. is set aside on the ground that the High Court had no jurisdiction, the dispute falling within the jurisdiction of the Environment and Land Court
- 2.The respondent's plaint dated 8th October 2024 is struck out
- 3.Costs of the suit to the appellants
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- null (ruling of 5th December 2024; plaint dated 8th October 2024)
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Constitution and Court of Appeal statute; the underlying dispute turns on Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act
Relief refused
#Finding of material non-disclosure against the respondent
The matters said to be undisclosed (Nairobi MCELC No. E369 of 2024 and BPRT/E922/2024) were disclosed in the respondent's replying affidavit; one had been withdrawn and the other stayed, so they were not material
Holding that the suit was an abuse of court process for failing to pursue arbitration first
Once a suit is filed, the remedy of a party invoking an arbitration clause is an application under section 6(1) of the Arbitration Act; the existence of an arbitration clause does not render the suit abusive
Costs
The respondent's plaint dated 8th October 2024 is struck out with costs to the appellants
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Consequently, the ruling dated 5th December 2024 is hereby set aside and the respondent's plaint dated 8th October 2024 is struck out with costs to the appellants.
In our view, the dispute herein is one which fell within the jurisdiction of the Environment and Land Court pursuant to the provisions of Article 162(2)(b) of the Constitution and section 13(2)(a) of the Environment and Land Court Act.
A party desirous of activating an arbitration clause where a suit has been filed in court is duty- bound to activate section 6(1) of the Arbitration Act.
The “dominant issue” principle or the “predominant test” principle as referred to by the learned Judge is therefore a recognized principle and the learned Judge cannot be faulted for invoking it.
To borrow from Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR), jurisdiction is everything, without which a court has no power to make one more step and a court of law should down its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.
In essence, land use can simply be defined as activities practised on land to yield economic or social benefits.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Miano & 2 others v Mbaka t/a Branden Junior School (Land Case Appeal E003 of 2025) (Environment and Land) [2026] KEELC 4019 (KLR)[2026] KEELC 4019 (KLR)2 Jul 2026
- Cytonn Investment Partners Sixteen LLP & another v Official Receiver (Civil Appeal E836 of 2024) [2025] KECA 1954 (KLR)[2025] KECA 1954 (KLR)21 Nov 2025followed
Cite this brief
#Cite this brief
Caselaw, "Pumwani Riyadha Mosque Committee & another v Gikomba Business Centre Limited (Civil Appeal E965 of 2024) [2025] KECA 1257 (KLR)", Case Analysis (2025). Civil Appeal (ruling dated 5th December 2024 in High Court suit; memorandum of appeal dated 11th December 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1257/eng@2025-07-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.