Tana Salt Ltd v Kurawa Salt Industries Ltd & Philip K. Murgor, SC, MCIArb (as Arbitrator)
The bottom line
#Kenya's Environment and Land Court struck out Tana Salt's bid to overturn an arbitrator's interim order, ruling the company should first finish the same challenge already pending before the arbitral tribunal.
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 Environment and Land Court lacks jurisdiction over matters statutorily reserved to the High Court under the Arbitration Act
- 2.Whether the Originating Summons and Summons are parallel proceedings to the application dated 14th January 2026 pending before the Arbitral Tribunal
- 3.Whether Section 37 of the Arbitration Act is inapplicable where there is no proceeding before court for recognition or enforcement of an arbitral award
Key legal issues
#Jurisdiction of the ELC over challenges to arbitral interim measures concerning land
The ELC has jurisdiction in so far as the matter relates to possession of land, lease renewal and interpretation of the lease; the references to the High Court in the Arbitration Act should be read subject to Article 162(2)(b)
Applying the dominant issue test from Co-operative Bank v Njuguna, the court found that although the proximate trigger was a perceived procedural defect, enforcement of the impugned order has direct consequences in rem concerning possession of land, lease renewal and lease interpretation, engaging Article 162(2)(b) and Section 13(1) of the ELC Act.
Parallel proceedings and exhaustion
The OS and Summons are an abuse of court process because a replica application dated 14th January 2026 remains pending and undetermined before the Tribunal and should have been exhausted first
The applicant did not deny the pendency of the application dated 14th January 2026 before the Tribunal; the grounds supporting it are the same as those in the OS. The court held it imprudent to supervise the Tribunal while the Tribunal had neither granted nor declined the setting-aside application, and found the suit abusive on multiplicity grounds per Muchanga Investments.
Applicability of Section 37 of the Arbitration Act
Section 37 is inapplicable to interim orders made before a final award; it governs refusal of recognition or enforcement of final arbitral awards
The court examined the structure of the Act: Section 37 sits in Part VII on Recognition and Enforcement of Awards, following Part VI on Recourse to the High Court Against Arbitral Award, and operates against the backdrop of Section 36 dealing with the final award. It cannot be invoked to cure minor procedural defects before a final award.
Legal principles established
#- A suit filed without jurisdiction is dead on arrival and cannot be remedied
- The ELC's jurisdiction over contracts must be understood within the context of disputes connected to use of land; such contracts must be incidental to the use of land
- Section 37 of the Arbitration Act applies to final arbitral awards in the context of recognition and enforcement, not to interim orders or minor procedural defects before a final award
- Multiplicities of action on the same matter between the same parties constitute an abuse of process even absent malice
Court orders
#- 1.The Originating Summons and the Summons both dated 16th January 2026 are struck out
- 2.Costs of the applications awarded to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act
Relief refused
#Setting aside of the arbitrator's ruling dated 9th January 2026 and orders of 13th January 2026
Parallel application dated 14th January 2026 pending before the Tribunal; institution of the OS was an abuse of court process
Inhibition order under Section 68(1) of the Land Registration Act inhibiting registration of the Tribunal's order
Struck out with the OS
Declarations on the arbitrator's jurisdiction, lease renewal and excess of mandate
Substantive merits-based issues exclusively within the jurisdiction of the Tribunal; OS struck out
Costs
Costs to the respondents
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.
Consequently, the Originating Summons and the Summons both dated 16th January 2026 are lacking in merit and the same are struck out with costs to the respondents.
Consequently, I decline to hold that this court lacks jurisdiction to hear and determine the Summons and the OS solely on the basis of the express reference to the High Court made in the Arbitration Act.
It is that application currently pending before the arbitral tribunal that ought to have been exhausted prior to the present applicant approaching this court.
Section 37 has been enacted by the legislature with the final arbitration award in mind rather than minor procedural mishap.
Jurisdiction is primordial in every suit. It has to be there when the suit is filed in the first place.
Issues in the judgment
#Judgment refers to 'the hearing on 9/9/2026' when the events concern 9th January 2026
First respondent's affidavit refers to orders 'issued on 30th January 2026' though the impugned orders are dated 13th January 2026
Case number styled E003 OF 2026 (OS) yet ruling dated 28th September 2026 with reference to a hearing on 20th February 2026
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tana Salt Ltd v Kurawa Salt Industries Ltd & Philip K. Murgor, SC, MCIArb (as Arbitrator)", Case Analysis (2026). ELC Case No. E003 of 2026 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5990/eng@2026-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.