Gowi v Waweru & another (Environment & Land Miscellaneous Case E303 of 2024) [2025] KEELC 4939 (KLR)
The bottom line
#The High Court struck out a property injunction request because the applicant filed it without first opening a court suit, as arbitration rules require.
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 application herein is properly before the Court, given that it is not premised on a suit as required under Rule 2 of the Arbitration Rules 1997
Key legal issues
#Whether an application under Section 7 of the Arbitration Act must be anchored on a suit
Yes; Rule 2 of the Arbitration Rules 1997 mandatorily requires that applications under Sections 6 and 7 be made by summons in the suit, and non-compliance renders the application fatally defective.
The court reproduced Section 7(1) of the Arbitration Act and Rule 2 of the Arbitration Rules 1997, and relied on the Court of Appeal decision in Scope Telematics, which held that Rule 2 is mandatory and that Article 159 does not cure procedural non-compliance. Since the applicant's Chamber Summons was not premised on any suit, the preliminary objection was upheld and the application struck out.
What constitutes a proper preliminary objection
A preliminary objection must be on a pure point of law, not blurred with factual details requiring proof.
The court adopted the classic statement of Law JA in Mukisa Biscuits that a preliminary objection consists of a point of law which, if argued as a preliminary point, may dispose of the suit, and Ojwang J's formulation in Oraro v Mbaja that an assertion bearing factual aspects calling for proof is not a true preliminary objection. The defect complained of here was purely legal.
Legal principles established
#- An application for an interim measure of protection under Section 7 of the Arbitration Act must be made by summons in a suit, per Rule 2 of the Arbitration Rules 1997, which is couched in mandatory terms
- Failure to comply with a mandatory statutory procedure cannot be cured by Article 159 of the Constitution (the overriding objective/technicality provision)
Court orders
#- 1.The preliminary objection dated 16th February 2025 is upheld
- 2.The application dated 20th December 2024 is struck out
- 3.Costs to the Respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 7(1) of the Arbitration Act, 1995 (application for an interim measure of protection from the High Court before or during arbitral proceedings)
Relief refused
#Interim order of injunction restraining the Respondents from transferring, letting, disposing of or dealing with Apartment Number BD4 erected on L.R No. 330/667 pending arbitral proceedings
The application was fatally defective because it was not anchored on a suit as mandatorily required by Rule 2 of the Arbitration Rules 1997
Costs
Costs of the application to the Respondents
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 application dated 20th December 2024 is hereby struck out with costs to the Respondents.
I find that the preliminary objection is merited and the same is hereby upheld.
it is crystal clear that the procedure for the grant of an interim order requires that the application must be made within a suit. Rule 2 of the Arbitration Rules is couched in mandatory terms.
Issues in the judgment
#The Respondents' Notice of Preliminary Objection is dated 16th February 2025, the same date as their submissions, which is unusual but not internally contradictory
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gowi v Waweru & another (Environment & Land Miscellaneous Case E303 of 2024) [2025] KEELC 4939 (KLR)", Case Analysis (2025). Not stated in the judgment (Chamber Summons dated 20th December 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4939/eng@2025-06-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.