Basil & another v Safari Leisure Motels Ltd & 5 others
The bottom line
#A Kenyan court refused to send a land dispute to arbitration because the applicant waited over three years past the legal deadline to ask.
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 court should refer this matter to arbitration in accordance with the provisions of Section 6 of the Arbitration Act of 1995
- 2.Whether the parties are entitled to the relief sought
- 3.Who will bear the costs of the application
Key legal issues
#Whether the court should stay proceedings and refer the dispute to arbitration under Section 6(1) of the Arbitration Act
The application was incompetent: it was filed over three years after the 4th Defendant entered appearance, well outside the mandatory window, and no dispute existed between the Plaintiffs and the 4th Defendant capable of referral
Section 6(1) requires an application not later than entry of appearance. The 4th Defendant filed a Memorandum of Appearance on 27th January 2021 but only moved the court on 3rd March 2023. Further, only the Plaintiffs and the 1st Defendant were parties to the Sale Agreement containing the arbitration clause; the 4th Defendant was not a party and could not invoke it. Removal of caveats, the real dispute, is for the Court and Registrar, not arbitrators.
Whether there is in fact a dispute between the parties with regard to matters agreed to be referred to arbitration
No dispute capable of arbitration was disclosed; the materials showed no dispute as to the parties' obligations and rights under the sale agreement
Section 6(1)(b) requires that there be a dispute with regard to matters agreed to be referred. The court, applying UAP Provincial Insurance v Michael John Beckett, examined whether a genuine dispute existed. The Plaintiffs' claims concern caveat removal, declarations and damages against multiple defendants who are not parties to the arbitration agreement, and an arbitrator could not grant the reliefs sought in the plaint.
Costs of the application
Costs follow the event; the unsuccessful 4th Defendant to bear the Plaintiffs' costs
Under Section 27(1) of the Civil Procedure Act costs follow the event. The application was unsuccessful, so the Plaintiffs who defended it are entitled to costs.
Legal principles established
#- A party who does not apply for stay and referral to arbitration not later than the time of entering appearance loses the right to seek such orders
- Jurisdiction over removal of caveats is exercisable by the Registrar and the Court, not by arbitrators
- An application for stay of proceedings cannot succeed where there is no genuine dispute between the parties with regard to matters agreed to be referred to arbitration
Court orders
#- 1.The Notice of Motion dated 3rd March 2023 is found to lack merit and is dismissed entirely
- 2.The matter be set down for hearing and concluded, with witnesses availed, within Ninety (90) days from delivery of the ruling, being 5th October 2023
- 3.Costs of the application awarded to the Plaintiffs/Respondents, to be borne by the 4th Defendant/Applicant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution (Environment and Land Court); application under Order 46 and 51 Rule 1 of the Civil Procedure Rules 2010 and Section 6 of the Arbitration Act 1995
Relief refused
#Stay of the suit and referral of the dispute to arbitration
Application filed over three years after entering appearance, outside the mandatory window in Section 6(1) of the Arbitration Act, and no dispute between the parties capable of referral
Costs
Costs of the application awarded to the Plaintiffs/Respondents, to be borne by the 4th Defendant/Applicant
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.
the prevailing jurisprudence is that a party who does not comply with the timelines set out in Section 6 (1) of the Arbitration Act loses the right to seek stay and referral orders
Clearly, it is caught up by laches. The orders of stay and referral are therefore unavailable at this stage of the proceedings
It is well established that the jurisdiction on removal of Caveats is only exercisable by the 5th Defendant and Court pursuant to the provision of Sections 57 (1), (2), (3), (3), (4), (5), (6), (7), (8), (9) and (10) of the Registration of Titles Act, Cap. 281 and certainly not by Arbitrators
In the absence of a dispute, an application for stay of proceedings would not succeed.
That the Notice of Motion dated 3rd March, 2023 is hereby found to lack merit and the same is dismissed entirely.
That the Costs of the application to be awarded to Plaintis/Respondents to be bore by the 4th Defendant/Applicant.
Issues in the judgment
#Court frames three issues but states it will determine 'the two issues', leaving issue (b) unaddressed
Hearing date direction inconsistent with ruling date
Duplicate listing of the same Mlagui authority under different spellings
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Basil & another v Safari Leisure Motels Ltd & 5 others", Case Analysis (2023). Environment & Land Case 229 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18926/eng@2023-07-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.