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ELCDismissedOriginating Summons dated 29th April 2024

Gakibe v M Dalmar Trading Company Limited (Arbitration Suit E034 of 2024) [2026] KEELC 1398 (KLR)

High Court of Kenya
26 February 2026
995 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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The High Court in Kajiado refused to stop an arbitration, confirming that arbitrators decide their own jurisdiction first under Kenyan law.

What this practically means

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Executive summary

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The Applicant moved the High Court at Kajiado by Originating Summons dated 29th April 2024 under Section 17 of the Arbitration Act, seeking a stay of arbitral proceedings and setting aside of an interim ruling/award in which the arbitral tribunal dismissed a preliminary objection and affirmed its own jurisdiction over a dispute arising from a lease agreement. The Applicant argued that the arbitration was solely court-referred by the Chief Magistrate's Court and extinguished when those orders were discharged; that the arbitrator was irregularly appointed by the Chairman of the Chartered Institute of Arbitrators (Kenya Branch) contrary to Order 46 of the Civil Procedure Rules; that court-referred arbitration requires continuous court supervision; and that the dispute had been litigated before several forums. The Respondent countered that the lease contained a valid arbitration clause, that the appointment complied with the clause and section 12 of the Act, that Order 46 does not apply to contractual arbitration, and that previous proceedings were dismissed for want of jurisdiction without determining the merits. Justice Judy Omange distilled five issues and resolved each against the Applicant: the tribunal properly exercised jurisdiction under the kompetenz-kompetenz principle in section 17; the appointment followed the parties' agreed procedure and was lawful; the court referral and its discharge did not extinguish the arbitration agreement; minimal judicial intervention applies; and prior dismissals for want of jurisdiction never addressed the merits. The Originating Summons was dismissed, the interim award upheld, arbitral proceedings to continue on the merits, with costs abiding the arbitrator's determination.

Questions the Court framed

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

  1. 1.Whether the arbitral tribunal had jurisdiction
  2. 2.Whether the appointment of the arbitrator was lawful
  3. 3.Whether the court referral and subsequent discharge affected the arbitral mandate
  4. 4.Whether the tribunal properly dismissed the preliminary objection
  5. 5.Whether previous litigation ousted arbitration

Key legal issues

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01

Jurisdiction of the arbitral tribunal

Holding

The tribunal properly assumed and exercised jurisdiction; the preliminary objection on jurisdiction was properly dismissed

Reasoning

Section 17 embodies kompetenz-kompetenz. The tribunal entertained and determined the preliminary objection within statutory authority. Courts should exercise restraint and allow the tribunal the first opportunity to determine its jurisdiction, per Anne Mumbi Hinga and Safaricom. The court found no basis under section 17 to interfere.

p. 2
02

Lawfulness of the arbitrator's appointment

Holding

Appointment by the Chairman of the Chartered Institute of Arbitrators (Kenya Branch) was lawful, complying with the lease's arbitration clause and section 12 of the Arbitration Act

Reasoning

The lease clause provided that in default of agreement within 14 days, appointment would be by the CIArb Kenya Branch Chairman. That procedure was followed. Section 12 gives primacy to the parties' agreed procedure, and Order 46 CPR applies only to court-mandated arbitration absent a clause.

p. 2
03

Effect of court referral and discharge on the arbitral mandate

Holding

The referral by the Chief Magistrate's Court and its discharge did not extinguish the arbitration agreement contained in the lease

Reasoning

The lease contained an arbitration clause within section 4 of the Arbitration Act. Court referral was an incidental step; the parties' agreement to arbitrate subsisted independently, and its discharge on 6th November 2023 could not extinguish the contractual mandate.

p. 2
04

Whether previous litigation ousted arbitration

Holding

No; prior suits in various forums were dismissed for want of jurisdiction and never determined the merits

Reasoning

The prior matters before the BPRT, Magistrates' Court, ELC and Court of Appeal were dismissed for want of jurisdiction and none addressed the substantive dispute under the lease. They therefore did not bar arbitration, which remained the parties' agreed dispute resolution mechanism.

p. 3

Legal principles established

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  • Section 17 of the Arbitration Act embodies the kompetenz-kompetenz doctrine, empowering an arbitral tribunal to rule on its own jurisdiction first, with courts exercising restraint
  • Section 12 of the Arbitration Act gives primacy to the parties' agreed appointment procedure; Order 46 of the Civil Procedure Rules applies only where there was no arbitration clause but court-mandated arbitration
  • A court referral and subsequent discharge of that referral does not extinguish a valid arbitration agreement between the parties
  • Prior proceedings dismissed for want of jurisdiction do not address the merits and do not oust arbitration of the substantive dispute

Court orders

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  1. 1.The Originating Summons dated 29th April 2024 is dismissed
  2. 2.The interim ruling/award of the arbitral tribunal affirming jurisdiction is upheld
  3. 3.The arbitral proceedings shall proceed to hearing and determination on the merits
  4. 4.Costs shall abide the outcome of the Arbitral Tribunal's determination

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Section 17 of the Arbitration Act

Relief refused

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Order staying arbitral proceedings

No basis under section 17 of the Arbitration Act to interfere with the tribunal's jurisdictional determination

p. 3

Setting aside of the interim ruling/award on jurisdiction

Tribunal properly assumed and exercised jurisdiction; award upholding jurisdiction upheld

p. 3

Costs

Costs shall abide the outcome of the Arbitral Tribunals determination.

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.

The Originating Summons dated 29th April 2024 is hereby dismissed.
p. 3disposition
The interim ruling/award of the arbitral tribunal afirming jurisdiction is upheld.
p. 3disposition
The arbitral proceedings shall proceed to hearing and determination on the merits.
p. 3disposition
Costs shall abide the outcome of the Arbitral Tribunals determination.
p. 3costs
Section 17 of the Arbitration Act embodies the doctrine of kompetenz-kompetenz and expressly empowers an arbitral tribunal to rule on its own jurisdiction.
p. 2kompetenz-kompetenz
The Arbitration Act deliberately limits judicial intervention.
p. 2minimal judicial interference

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, "Gakibe v M Dalmar Trading Company Limited (Arbitration Suit E034 of 2024) [2026] KEELC 1398 (KLR)", Case Analysis (2026). Originating Summons dated 29th April 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1398/eng@2026-02-26

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