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ELCDismissedNot stated in the judgment as provided

Gogo v Atancha (Environment and Land Case E460 of 2024) [2025] KEELC 8398 (KLR)

Environment and Land Court
2 December 2025
1,774 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed it can protect property in dispute while arbitration proceeds, dismissing a seller's attempt to halt a land buyer's case.

What this practically means

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Executive summary

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The Plaintiff sued by plaint dated 5th November 2024 seeking a declaration that the Defendant breached the agreement for sale of Plot No. K5 of Nairobi Block 136/Drumville by terminating it without settling the dispute, and an order compelling the Defendant to authorise the Chairperson of the Chartered Institute of Arbitrators to select an arbitrator, together with interim relief. The Defendant raised a preliminary objection contending that the court lacked jurisdiction because Clause 13 of the Sale Agreement dated 16th November 2023 mandated arbitration, that the suit was premature for failure to exhaust that mechanism, and that the plaintiff came to equity with unclean hands. The plaintiff countered that she had complied with the arbitration clause by notifying the defendant and initiating steps to appoint an arbitrator, and that her application was brought under Section 7(1) of the Arbitration Act for interim measures, consistent with Article 159(2)(c) of the Constitution. Relying on Mukisa Biscuits, Geofirey Muthinja, Yes Housing, Safaricom v Ocean View and Itabuild Imports, the court held that it is not incompatible with an arbitration agreement for a court to grant interim measures before or during arbitral proceedings. Noting the plaintiff had paid Kshs. 500,000/-, that the defendant was not shown to dispute matters of title, and that the defendant had raised the purchase price to Kshs. 2,800,000/-, the court found a prima facie case warranting interim measures to protect the substratum of the arbitration. The preliminary objection was dismissed with costs on 2nd December 2025.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Notice of Preliminary Objection dated 24th March 2024 is merited

Key legal issues

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01

Whether the court lacks jurisdiction over a dispute subject to an arbitration clause where the plaintiff has initiated steps to appoint an arbitrator and seeks interim measures

Holding

The preliminary objection fails; the court may grant interim measures under Section 7 of the Arbitration Act notwithstanding the arbitration agreement, and the plaintiff's compliance with the arbitration clause defeats the prematurity objection

Reasoning

The court found that Clause 13 of the Sale Agreement required disputes to be referred to arbitration, but the plaintiff had notified the defendant of the dispute and initiated steps to appoint an arbitrator. Section 7(1) of the Arbitration Act permits a party to request interim measures from the court before or during arbitral proceedings, consistent with Article 159(2)(c). The defendant had not shown any arbitrator had granted interim orders, and the facts showed payment of the purchase price and a threatened increase of price, warranting protective measures.

p. 4

Legal principles established

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  • It is not incompatible with an arbitration agreement for a party to request interim measures of protection from the court before or during arbitral proceedings
  • A plaintiff who has initiated steps to commence arbitration may still seek interim protective measures from the court under Section 7 of the Arbitration Act where there is need to protect the substratum of the arbitral proceedings

Court orders

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  1. 1.Notice of Preliminary Objection dated 24th March 2024 dismissed
  2. 2.Costs of the preliminary objection awarded to the Plaintiff
  3. 3.Interim measures granted pending determination of the arbitral proceedings to protect the substratum of the dispute

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Wrote the judgment

Jurisdiction invoked
Section 7(1) of the Arbitration Act; Article 159(2)(c) of the Constitution of Kenya

Relief refused

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Defendant's preliminary objection seeking to halt the suit for want of jurisdiction and prematurity

The Court found the objection unmerited because the Plaintiff had complied with the arbitration clause and the Court has jurisdiction under Section 7 of the Arbitration Act to grant interim measures

p. 4

Costs

Preliminary objection dismissed with costs to the Plaintiff

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the circumstances, I find the Notice of Preliminary Objection dated 24th March 2024 unmerited and will dismiss it with costs.
p. 4Dismissal of preliminary objection
I find that the Plaintifi has indeed established a prima facie case to warrant the grant of interim measures as envisaged under section 7 of the Arbitration Act as there is clearly a need to protect the substratum of the arbitral proceedings.
p. 4Grant of interim measures under Section 7 of the Arbitration Act
It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked
p. 2Exhaustion of alternative dispute resolution (as stated in Geofirey Muthinja, cited)
It may be necessary for an arbitral tribunal or a national court to issue orders intended to preserve evidence, to protect assets, or in some other way to maintain the status quo pending the outcome of the arbitration proceedings themselves.
p. 3Purpose of interim measures pending arbitration (Safaricom v Ocean View, cited)

Issues in the judgment

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minor

The Notice of Preliminary Objection is dated 24th March 2024, which predates the plaint dated 5th November 2024, an apparent chronological inconsistency

minor

Judgment dated 2nd December 2025 whereas the status quo order was granted on 2nd December 2024; also paragraph numbering repeats (multiple paragraphs numbered 38)

minor

The judgment states the Defendant 'does not deny he is not the registered proprietor of the said land', an ambiguous double negative that may be a typographical error

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Gogo v Atancha (Environment and Land Case E460 of 2024) [2025] KEELC 8398 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8398/eng@2025-12-02

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.