Waithaka v Nanjero & another (Environment and Land Miscellaneous Case E366 of 2025) [2026] KEELC 2389 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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
#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
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
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.
Legal principles established
#- 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
#- 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
The bench
#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
#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
Costs
Costs of the application be in the cause.
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.
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.
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.
Issues in the judgment
#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
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.