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ELCDismissedNot stated in the judgment· [2025] KEELC 7774 (KLR)

Universal Double Tree Hotel Limited v Willstone Homes Limited (Environment and Land Case Civil Suit E002 of 2024) [2025] KEELC 7774 (KLR)

High Court of Kenya (Machakos) – court not expressly named in the judgment
11 November 2025
973 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The defendant filed a preliminary objection seeking dismissal of a suit arising from an agreement of sale dated 14/10/2022, contending that the court lacked jurisdiction because the agreement contained an arbitration clause (allegedly clause M, referring disputes to the vendor's architect) and that the suit contravened that clause. The plaintiff opposed, pointing to an alleged clause 9(G) of the sale agreement providing for alternative dispute resolution first. The court applied the Mukisa Biscuit principles, as endorsed by the Supreme Court in the KNCHR case, that a preliminary objection must raise a pure point of law on the assumption that all facts pleaded by the other side are correct, and applied the IEBC v Cheperenger purposes of a PO. Applying three tests (pure point of law; correctness of facts; no need to ascertain facts), the court found the competing allegations about the agreement's clauses raised a factual issue requiring evidence, so the PO failed the threshold. The court further held that an arbitration clause does not of itself oust the court's jurisdiction, and that under Section 6(1) of the Arbitration Act a stay could only be granted on an application made no later than entry of appearance; the defendant had filed a defence on 7/10/2023 and never made such an application, and could not raise arbitration nearly two years into the suit. The PO was dismissed with costs in the cause, further applications were restricted to those filed with leave, and the matter was set for pretrial directions.

Key legal issues

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01

Whether the preliminary objection meets the threshold of a pure point of law under the Mukisa Biscuit principles

Holding

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

Reasoning

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.

p. 2
02

Whether an arbitration clause ousts the court's jurisdiction and whether the defendant could invoke it at this stage

Holding

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

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The preliminary objection is dismissed with costs being in the cause
  2. 2.There shall be no further filings of applications in this matter unless with leave of the court
  3. 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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.