The Court of Appeal has overturned a High Court ruling that allowed Gikomba Business Centre Ltd to proceed with a commercial lease dispute against Pumwani Riyadha Mosque Committee and its Registered Trustees.
In a judgment delivered by a three-judge bench comprising Justices Kiage M’Inoti, Lydia Achode, and Weldon Korir on Friday, July 11, 2025, the appellate court held that the dispute over a 35-year lease agreement for Land Reference No. 209/19680 should have been heard by the Environment and Land Court (ELC), not the High Court.
In Civil Appeal No. E965 of 2024, the appellants, Pumwani Riyadha Mosque Committee and its Registered Trustees, challenged a December 5, 2024, ruling by High Court Judge Alfred Mabeya, who had declined to strike out the suit filed by Gikomba Business Centre Ltd.
Court of Appeal Overturns High Court Ruling in Gikomba Business Centre Lease Dispute
The suit concerned a 35-year lease over Land Reference No. 209/19680, signed in 2015, which the respondent claimed the mosque trustees had breached.
The High Court had dismissed the appellants’ motion, arguing a lack of jurisdiction, ruling instead that the dispute was commercial in nature, thus falling under the High Court’s purview. It also held that the appellants had waived their right to arbitration by actively participating in the proceedings without applying for a stay and referral to arbitration.
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However, the three Court of Appeal judges found that the High Court had no authority to hear the case from the beginning.
Applying the “predominant test”, the appellate court concluded that the core issue in the dispute was the use and occupation of land, which places it squarely under the jurisdiction of the Environment and Land Court, as outlined in Article 162(2)(b) of the Constitution and Section 13 of the ELC Act.
“The respondent had leased the land and put up structures for subletting, which constitutes land use as contemplated by Article 162(2)(b). The dispute, therefore, fell within the jurisdiction of the Environment and Land Court,” the court stated.
Lease Agreement Dispute Belongs in Environment and Land Court, Judges Rule
On the arbitration issue, the Court of Appeal upheld the High Court’s view that the appellants had waived their right to arbitration by not seeking a stay of proceedings at the time of entering appearance, as required under Section 6(1) of the Arbitration Act.
The court also dismissed claims of material non-disclosure and abuse of court process, stating that the respondent had disclosed all relevant proceedings in its affidavit and that the existence of an arbitration clause alone was insufficient to invalidate the suit.
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Although the appellate judges agreed with the High Court on some minor issues, they stressed that jurisdiction is crucial, and because the High Court lacked it, the entire case and its decisions were invalid.
As a result, the Court of Appeal:
- Set aside the High Court ruling delivered on December 5, 2024
- Struck out the respondent’s plaint dated October 8, 2024
- Awarded costs to the appellants
The appellants were represented by lawyer Nelson Havi, while Issa Mansur acted for the respondent.
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