Pumwani Mosque wins appeal in Gikomba land dispute

Court gavel/FREEPIK

The Court of Appeal has handed a major victory to the Pumwani Riyadha Mosque Committee and its Registered Trustees in a long-running legal battle against Gikomba Business Centre Ltd over a disputed land lease.

The three-judge bench, comprising Justices Kathurima M’Inoti, Lydia Achode and Weldon Korir, ruled that the High Court lacked jurisdiction to entertain the dispute and struck out the respondent’s plaint, effectively ending the case in favour of the mosque.

The case revolved around a 35-year lease agreement dated September 9, 2015, over Land Reference Number 209/19680.

The respondent, Gikomba Business Centre Ltd, had leased the property from the mosque trustees to construct and operate the Gikomba Business Centre, a commercial hub in Nairobi.

However, the mosque committee later terminated the lease, prompting the respondent to file a suit in the High Court seeking specific performance of the lease and alleging breach of contract.

In a ruling delivered on December 5, 2024, High Court Judge Alfred Mabeya had dismissed the mosque committee’s application to strike out the suit, declaring that the matter was commercial in nature and therefore within the High Court's jurisdiction.

He also held that the mosque committee had waived its right to arbitration by actively participating in the proceedings without applying for a stay.

But the Court of Appeal disagreed.

In a judgment delivered on July 11, 2025, the Court of Appeal ruled that the case belonged in the Environment and Land Court, not the High Court.

“The dispute herein is one which fell within the jurisdiction of the Environment and Land Court pursuant to the provisions of Article 162(2)(b) of the Constitution and section 13(2)(a) of the Environment and Land Court Act,” the bench concluded.

The appellate judges emphasised that the dispute involved land use, tenure, and occupation, elements that fall squarely under the Environment and Land Court’s purview.

“From the plaint, some of the alleged particulars of breach are interfering with the business operations of the respondent and violation of the terms of the lease agreement,” they stated.

“The land was therefore being used in the terms contemplated by Article 162(2)(b) of the Constitution.”

Lawyer Nelson Havi, who represented the mosque committee, welcomed the ruling, terming it a vindication of constitutional boundaries between courts.

“Specialised courts exist for a purpose, and the High Court cannot expand its own jurisdiction through judicial craft,” he had argued during submissions.

The Court also addressed the issue of arbitration.

Although the lease agreement contained an arbitration clause, the mosque committee had not invoked it when entering an appearance in the High Court.

This led Justice Mabeya to conclude that they had waived the right to arbitration.

The Court of Appeal upheld that part of the High Court’s finding, stating that “the failure to seek a stay of proceedings and for reference at the appropriate time, coupled with the defendants’ active participation in the current proceedings, means that the defendants have waived their right to insist on arbitration at this stage.”

On the claim that Gikomba Business Centre had concealed material facts, the appellate court found no evidence to support the allegation.

“There is nothing to support the appellants’ assertion that there was material non-disclosure,” the ruling read, noting that one of the earlier suits cited had been withdrawn and another stayed.

Despite not winning on all grounds, the mosque committee's central argument, that the High Court lacked jurisdiction, was enough to overturn the lower court’s ruling.

“This appeal succeeds... The ruling by Mabeya, J. is for setting aside,” the judgment concluded.

“The respondent's plaint dated October 8, 2024, is struck out with costs to the appellants.”