Miathu & 3 others v Stuart & 2 others (Land Case E057 of 2024) [2025] KEELC 5814 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out a land dispute because the sale agreement required arbitration, reinforcing that signed arbitration clauses will be enforced.
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 Preliminary objection meets the threshold of objections based on Law and Precedents
- 2.Whether the Notice of Preliminary objection dated 5th December, 2024 is merited
- 3.Who bears the Costs of the Notice of Preliminary objection dated 5th December, 2024
Key legal issues
#Whether the objection on jurisdiction based on an arbitration clause qualifies as a preliminary objection on a pure point of law
Yes; an objection going to jurisdiction is a point of law and must be dealt with in limine.
The court reviewed the Mukisa Biscuits definition and subsequent authorities including Oraro v Mbaja, Nitin Properties, United Insurance Co v Odera and Attorney General v Andrew Mwaura Githinji, all of which define a preliminary objection as a pure point of law argued on the assumption that the pleaded facts are correct. Because the objection challenged the court's jurisdiction founded on the arbitration clause of the sale agreement, it qualified as a pure point of law requiring determination first.
Whether the court lacked jurisdiction because of the arbitration clause (Clause 16.2) in the sale agreement
Yes; the court lacks jurisdiction as parties chose arbitration, and the suit violates Section 6 of the Arbitration Act.
Applying the party autonomy principle, the exhaustion doctrine, Article 159(2)(c) of the Constitution and Section 6(1) of the Arbitration Act, the court held that parties who consensually choose arbitration must be held to that choice. The 1st Defendant raised the arbitration point promptly, satisfying the Section 6(1) timeline, and the court would not rewrite the parties' sale agreements. Jurisdiction accordingly vested in the arbitral tribunal, not the court.
Costs of the preliminary objection
Costs follow the event; the successful 1st Defendant is entitled to costs of both the objection and the struck out plaint.
Guided by Section 27(1) of the Civil Procedure Act and the authorities of Harun Mutwiri v Nairobi City County Government, KUCFAW v Bidco Africa and Hussein Muhumed Sirat v Attorney General, the court reaffirmed that costs follow the event and the successful party is typically entitled to costs absent compelling reasons. The 1st Defendant having succeeded entirely, costs were awarded to him.
Legal principles established
#- A preliminary objection must be raised on a pure point of law, on the assumption that all facts pleaded by the other side are correct, and cannot be raised where facts must be ascertained or judicial discretion exercised.
- Where parties to a contract have consensually agreed on arbitration as their dispute resolution forum, courts are obliged to give effect to that agreement, and proceedings must be stayed and referred to arbitration under Section 6(1) of the Arbitration Act where the application is made at or before entry of appearance.
Court orders
#- 1.The Notice of Preliminary objection by the Defendant dated 5th December, 2024 is found to have merit and is allowed entirely
- 2.As between the Plaintiffs and Defendants, their choice of forum is arbitration and there is a dispute to be determined through arbitration
- 3.The Court lacks jurisdiction to hear and determine the dispute in the Plaintiffs' suit dated 13th September, 2024 and the suit is struck out
- 4.The proceedings are stayed and the dispute referred to Arbitration under Clause 16.2 of the Sale Agreement under Section 6 of the Arbitration Act
- 5.The 1st Defendant shall have the costs of the struck out Plaint and the Notice of Preliminary objection
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Environment and Land Court jurisdiction under the ELC Act read with Article 159(2)(c) of the Constitution and Section 6 of the Arbitration Act, No. 4 of 1996
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.
That the Notice of Preliminary objection by the Defendant dated 5th December, 2024 be and is hereby found to have merit and the same is allowed entirely.
That the instant proceedings are stayed and the dispute is referred to Arbitration under Clause 16.2 of the Sale Agreement by the Parties under Section 6 of Arbitration Act.
That the Honourable Court finds that as between the Plaintifis and Defendants, they have their choice of forum as arbitration and there is a dispute to be determined through arbitration.
Jurisdiction is everything. Without it, a court has no power to make one more step.
This court will not rewrite the terms of the parties' Sale Agreements.
Issues in the judgment
#Contradiction on the date of the sale agreement: the court elsewhere states the transaction was made on 7th August, 2023 vide a sale agreement dated 7th December, 2023.
The text refers to 'Section 27 [1] of the Civil Procedure Rules Cap. 21' although the costs provision is in the Civil Procedure Act, Cap. 21.
The judgment truncates a passage on alternative dispute resolution mid-word.
The case number, neutral citation and full names of the Plaintiffs and of the 2nd and 3rd Defendants are not stated anywhere in the ruling.
The judgment records that only the 1st Defendant's submissions were filed, yet proceeded to rule on its own merit.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Miathu & 3 others v Stuart & 2 others (Land Case E057 of 2024) [2025] KEELC 5814 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5814/eng@2025-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.