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ELCAllowedNot disclosed in the ruling

Aristocrats Concrete Limited v Concrete Construction Company Limited (Environment and Land Case E037 of 2025) [2026] KEELC 613 (KLR)

Environment and Land Court
10 February 2026
2,816 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan land dispute was sent to arbitration as agreed in the sale contract, and the seller was blocked from selling the land until arbitration finishes.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Machakos (Koross, J) determined the plaintiff's notice of motion dated 20/03/2025, brought under Articles 40 and 159 of the Constitution, the Civil Procedure Act, Sections 6 and 7 of the Arbitration Act and Order 40 of the Civil Procedure Rules. The plaintiff sought referral to arbitration under clause 13.0 of a sale agreement dated 14/12/2021 and an interim injunction restraining dealings with L.R. NO. 22133 pending arbitration. The plaintiff relied on a supporting affidavit of Thomas Masaki showing payment of Kshs. 18,000,000, an addendum dated 18/02/2022 treating the deposit as full payment for a 3-acre portion, and an alleged intention by the defendant to sell the land to a third party. The defendant opposed through grounds of opposition only, contesting the court's jurisdiction, alleging the sale agreement was a nullity and denying any intention to sell, but filed no replying affidavit and no submissions. On the first issue, the court found clause 13.0 a valid and enforceable arbitration agreement, separable from the main contract, and applied Section 6 of the Arbitration Act and the Supreme Court's decision in Synergy Industrial Credit v Cape Holdings to refer the dispute to arbitration. On the second issue, applying Safaricom v Ocean View Beach Hotel and Section 7 of the Arbitration Act, the court held the plaintiff's unrebutted allegations established a prima facie case and warranted preservation of the property. The motion was allowed with each party bearing their own costs, the dispute was referred to arbitration and a temporary injunction was issued restraining any dealing with the suit property pending arbitration.

Questions the Court framed

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

  1. 1.Whether this matter should be referred to arbitration
  2. 2.Whether an injunction should issue pending the determination of the arbitration proceedings

Key legal issues

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01

Whether the matter should be referred to arbitration under clause 13.0 of the sale agreement

Holding

The arbitration clause was valid and enforceable, the plaintiff approached the court promptly, and the matter was referred to arbitration.

Reasoning

The court examined clause 13.0 of the agreement dated 14/12/2021 and found that the parties consented to the arbitration seat, location and applicable law. Applying Article 159(2)(c) of the Constitution and Section 6 of the Arbitration Act, and following Synergy Industrial Credit and Blue Limited v Jaribu Credit Traders, it held the clause separable and enforceable absent evidence of fraud or misrepresentation, leaving validity disputes to the arbitrator.

p. 5
02

Whether an injunction should issue pending arbitration under Section 7 of the Arbitration Act

Holding

Interim relief was granted because the plaintiff's assertions were unrebutted and established a prima facie case warranting preservation of the suit property.

Reasoning

Guided by Safaricom v Ocean View Beach Hotel, the court applied the arbitration-specific criteria rather than the Giella v Cassman Brown strictures. The plaintiff produced the agreements, a subdivision scheme, proof of Kshs. 18,000,000 payment and correspondence demanding possession. The defendant responded only with grounds of opposition and no replying affidavit, so the allegations went unchallenged and the property required preservation.

p. 6

Legal principles established

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  • The presence of an arbitration clause in an agreement does not exclude the court's authority; instead, proceedings should be stayed in accordance with Section 6 of the Arbitration Act.
  • An arbitration clause is a distinct and separable agreement; a party cannot question the validity of the overall agreement to challenge the arbitration clause.
  • Where a supporting affidavit is not rebutted by a replying affidavit, the averments are taken as true and unchallenged.

Court orders

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  1. 1.This matter be and is hereby referred to an arbitrator pursuant to clause 13 of the agreements for sale, dated 14/12/2021
  2. 2.Pending the hearing and determination of the arbitration proceedings, an order of temporary injunction restraining the defendant, its agents, servants or legal representatives from transacting, selling, charging, alienating or in any way interfering with or dealing with L.R. NO. 22133
  3. 3.Each party shall bear their respective costs of the notice of motion dated 20/03/2025
  4. 4.A mention date to be given for purposes of updating the court on the arbitral process

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Articles 40 and 159 of the Constitution of Kenya 2010; Sections 1A, 1B and 3A of the Civil Procedure Act; Sections 6 and 7 of the Arbitration Act; Order 40 Rules 1 and 2 and Order 51 Rule 1 of the Civil Procedure Rules

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.

This matter be and is hereby referred to an arbitrator pursuant to clause 13 of the agreements for sale, dated 14/12/2021.
p. 6final orders - reference to arbitration
That pending the hearing and determination of the arbitration proceedings, an order of temporary injunction is hereby issued restraining the defendant by itself, its agents, servants or legal representatives from transacting, selling, charging, alienating and or in any way whatsoever interfering with or otherwise dealing with the property known as land parcel number L.R. NO. 22133.
p. 6final orders - interim injunction
After examining clause 13.0 of the said agreements, it is clear that the arbitration agreement is valid and enforceable.
p. 5validity of the arbitration clause
The absence of a replying affidavit rebutting the assertions in the supporting affidavit is construed to mean that the defendant has no claim against the plaintiff.
effect of unrebutted affidavit evidence

Issues in the judgment

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minor

The ruling is dated 10th February 2026 in the disposal clause but recites considering submissions dated 11/11/2025 'at the time of writing this ruling'; the internal chronology is not clarified.

minor

The case number and full party names of the suit are not disclosed anywhere in the ruling.

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, "Aristocrats Concrete Limited v Concrete Construction Company Limited (Environment and Land Case E037 of 2025) [2026] KEELC 613 (KLR)", Case Analysis (2026). Not disclosed in the ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/613/eng@2026-02-10

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