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ELCDismissedELC Misc No E366 of 2025

Waithaka v Nanjero & another (Environment and Land Miscellaneous Case E366 of 2025) [2026] KEELC 2389 (KLR)

Environment and Land Court
29 April 2026
949 words in judgment
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The bottom line

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A Kenyan court ruled you cannot use an arbitration clause to stall enforcement of a judgment that has already settled the dispute.

What this practically means

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Executive summary

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The applicants moved the Environment and Land Court by notice of motion dated 3rd December 2024 seeking a stay of all proceedings in ELC Misc No E366 of 2025 pending arbitration, contending that the parties were bound by an arbitration clause (clause 22) in a sale agreement dated 4th June 2015 and that the proceedings had been filed prematurely. The applicants relied on section 6(1) of the Arbitration Act and cited Eunice Soko Mlagui v Suresh Parmar & 4 others (2017) eKLR. The respondent opposed, sworn in a replying affidavit of 13th February 2026, that a judgment in High Court Civil Suit No 12 of 2017 (delivered 26th April 2024) had already determined the parties' rights: the respondent was to remit accrued interest, which she did, and the applicants were to release completion documents, which they have not. The respondent argued the pending application seeks to enforce the court decree, not a dispute under the agreement, and arbitration cannot be used to stop implementation of a court order. The court framed a single issue: whether the applicants met the conditions for a stay. It found the arbitration clause overtaken by events since the rights over the property had been established, and that the respondent's application concerned enforcement of the decree, not the sale agreement. Section 6(1), though mandatory, excepts matters where there is no dispute referable to arbitration. The application was dismissed with costs in the cause.

Questions the Court framed

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

  1. 1.Whether the Applicants have met the conditions set to stay the proceedings and refer the parties to arbitration under section 6 of the Arbitration Act

Key legal issues

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Whether a stay of proceedings pending arbitration can be granted where the rights under the agreement containing the arbitration clause have already been determined by a court judgment

Holding

Stay cannot be granted; there is no dispute under the agreement capable of being referred to arbitration, and the pending application seeks enforcement of a court decree, not resolution of a dispute under the sale agreement

Reasoning

The court examined clause 22.1 of the sale agreement providing for dispute resolution, then considered section 6(1) of the Arbitration Act. Although mandatory, the provision applies only where a dispute exists under the arbitration agreement. Here a judgment dated 26th April 2024 had already determined the parties' rights and obligations; the respondent's application sought to compel enforcement of the decree. The applicants were in default of the court order having failed to surrender completion documents. Arbitration could not be invoked to stall implementation of a court order.

p. 2

Legal principles established

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  • Section 6(1) of the Arbitration Act is mandatory but subject to exceptions where the arbitration agreement is null and void, inoperative or incapable of being performed, or where there is no dispute between the parties on matters agreed to be referred to arbitration

Court orders

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  1. 1.The notice of motion dated 3rd December 2025 is not merited and is hereby dismissed
  2. 2.Costs of the application be in the cause

The bench

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

Wrote the judgment

Jurisdiction invoked
Section 6 of the Arbitration Act No. 4 of 1995

Relief refused

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Stay of all proceedings in miscellaneous application ELC Misc No E366 of 2025 pending arbitration

The arbitration clause had been overtaken by events as the rights over the property had already been determined by the court's judgment dated 26th April 2024, and the respondent's application sought enforcement of the decree, not a dispute under the sale agreement

p. 3

Costs

Costs of the application be in the cause.

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 respondents through their application are seeking for orders to compel the enforcement of the decree emanating from the judgement and is not in any way related to the sale agreement and therefore section 6 of the Arbitration Act cannot sufice.
p. 2Arbitration clause inapplicable to decree enforcement
1. The notice of motion dated 3rd December 2025 is not merited and is hereby dismissed. 2. Costs of the application be in the cause.
p. 3Final orders

Issues in the judgment

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minor

The judgment refers inconsistently to the date of the sale agreement, describing it first as 'dated 4th June 2015' in the supporting affidavit and later as 'the sale agreement dated 4th July 2015' in the analysis

minor

The application is described as dated 3rd December 2024 in the introduction but referred to as dated 3rd December 2025 in the final orders

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, "Waithaka v Nanjero & another (Environment and Land Miscellaneous Case E366 of 2025) [2026] KEELC 2389 (KLR)", Case Analysis (2026). ELC Misc No E366 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2389/eng@2026-04-29

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