Universal Double Tree Hotel Limited v Willstone Homes Limited (Environment and Land Case Civil Suit E002 of 2024) [2025] KEELC 7774 (KLR)
The bottom line
#The High Court dismissed a bid to send a land sale dispute to arbitration, because the defendant waited nearly two years without invoking the arbitration clause in time.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection meets the threshold of a pure point of law under the Mukisa Biscuit principles
The PO is not merited because whether the agreement contained an arbitration clause (clause M or clause 9(G)) is a factual issue requiring evidence
The defendant relied on an alleged clause M referring disputes to arbitration by the vendor's architect, while the plaintiff pointed to an alleged clause 9(G) providing for alternative dispute resolution. The competing versions of the alleged agreement mean facts must be ascertained. A PO cannot be sustained where facts are in dispute; it must assume all facts pleaded by the other side are correct.
Whether an arbitration clause ousts the court's jurisdiction and whether the defendant could invoke it at this stage
An arbitration clause does not preclude the court's jurisdiction, and Section 6(1) of the Arbitration Act requires a stay application no later than entry of appearance; the defendant never filed one and cannot raise arbitration nearly two years into the suit
The court observed that section 6(1) of the Arbitration Act obliges a court to stay proceedings only where a party applies no later than appearance, unless the agreement is null, void, inoperative or incapable of performance, or there is no dispute. The defendant filed a defence on 7/10/2023 and made no such application, so it cannot rely on the clause at this late stage.
Legal principles established
#- The existence of an arbitration clause in an agreement does not, of itself, preclude the court's jurisdiction
- A party who does not apply under Section 6(1) of the Arbitration Act no later than when entering appearance or acknowledging the claim cannot raise the arbitration clause at a later stage
Court orders
#- 1.The preliminary objection is dismissed with costs being in the cause
- 2.There shall be no further filings of applications in this matter unless with leave of the court
- 3.This matter shall be mentioned for purposes of pretrial directions
- Jurisdiction invoked
- Not expressly stated; the court exercises first-instance civil jurisdiction over a suit arising from a sale agreement, dealing with a preliminary objection under the Arbitration Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Universal Double Tree Hotel Limited v Willstone Homes Limited (Environment and Land Case Civil Suit E002 of 2024) [2025] KEELC 7774 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7774/eng@2025-11-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.