Greystones Development Limited v Peter Trasilla Wangari & another [2017] KEELC 520 (KLR)
The bottom line
#Kenya's Environment and Land Court, not the High Court, handles arbitration-related injunctions in land disputes.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Environment and Land Court over applications under Section 7 of the Arbitration Act concerning land disputes
The ELC has jurisdiction because the dispute concerns use and occupation of land, and reference to the High Court in the Arbitration Act must be construed, pursuant to Article 262(7), as reference to the ELC in land and environment matters
The court held the dispute is essentially about use and occupation of land, over which the ELC has jurisdiction under Article 162(2)(b) and Section 13 of the ELC Act. The Arbitration Act predates the 2010 Constitution, and Article 262(7) obliges construing pre-existing law with alterations necessary to conform to the Constitution. Accordingly, references to the High Court in the Arbitration Act, in land and environment matters, are read as references to the ELC. Section 150 of the Land Act also vests land disputes jurisdiction in the ELC.
Whether injunctive relief should issue to preserve the subject matter of impending arbitration
It is in the interest of justice to preserve the subject matter of the application pending the impending arbitral proceedings, the parties having agreed a dispute exists and having agreed on an arbitrator
From the correspondence exchanged between the advocates, the parties agreed a dispute exists over the subject matter and agreed on the need to appoint an arbitrator, indeed an arbitrator had been agreed upon. Given the applicant's apprehension of eviction which would render the arbitral process academic, the court found it in the interest of justice to preserve the subject matter pending arbitration, while clarifying that the orders would not affect the parties' rights under the existing lease agreements.
Legal principles established
#- In matters concerning land and environment, references to the High Court in the Arbitration Act, a pre-2010 statute, should be construed as references to the Environment and Land Court by virtue of Article 262(7) of the Constitution
Court orders
#- 1.A temporary injunction to restrain the respondents from interfering with the applicant's quiet enjoyment and possession of the properties known as Land Reference Numbers 5173/6, 5173/10, 6338/2 and 6338/4 pending the resolution of the dispute between the parties through arbitration
- 2.A temporary injunction to restrain the respondents from trespassing on, leasing or selling to any third party, constructing on, alienating or otherwise interfering or dealing with the said properties pending the resolution of the dispute through arbitration
- 3.The plaintiff be at liberty to apply for such further or other orders and directions as the Court may deem fit and just to grant
- 4.The orders issued shall not affect the rights of the parties under the existing lease agreements
- 5.Costs of the application to abide the outcome of the arbitral proceedings
- Jurisdiction invoked
- Article 162(2)(b) as read with Article 262(7) of the Constitution of Kenya, 2010; Sections 13 and 150 of the Environment and Land Court Act, 2011 and the Land Act, 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Greystones Development Limited v Peter Trasilla Wangari & another [2017] KEELC 520 (KLR)", Case Analysis (2017). Not stated in the judgment (chamber summons dated 29th May, 2017 in the instant suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/520/eng@2017-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.