Kiunga v Wellendorf (Environment and Land Case Civil Suit E005 of 2025) [2026] KEELC 491 (KLR)
The bottom line
#A Kenyan land buyer kept possession of a Diani property pending trial after the court granted her an injunction, but she lost her bid for specific performance because she had not paid.
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 Preliminary Objection dated 25th February, 2025 by the Plaintiff herein meets the threshold based on principles of Law and Precedents
- 2.Whether the Plaintiff has met the threshold for grant of a temporary injunction
- 3.Whether the Defendant's application to strike out the Plaint is merited
- 4.Whether the parties are entitled to the prayers sought in their various applications (including whether the dispute should be referred to arbitration)
- 5.Who bears the Costs of the Notice of Motion application dated 23rd January, 2025, Notice of Motion application dated 10th February, 2025 and Notice of Preliminary Objection dated 25th February, 2025
Key legal issues
#Whether the Plaintiff's preliminary objection raised pure points of law
It did not; it touched contested facts (validity of notices, breach, renovation costs) and was dismissed.
The Court applied the Mukisa Biscuits test and its progeny (Oraro v Mbaja, Nitin Properties, AG v Andrew Maina Kithinji), holding that where ascertaining facts such as whether notices were properly served, whether payments were made, or whether renovations exceeded agreed sums is required, the objection ceases to be a pure point of law and must await trial evidence.
Whether the Plaintiff established a prima facie case, irreparable injury and balance of convenience for a temporary injunction
Yes; the injunction was granted preserving the Plaintiff's possession pending trial.
Applying Giella v Cassman Brown and Nguruman, the Court found the Plaintiff's possession, renovations and allegations of unlawful rent demands and interference disclosed an arguable case. Damages would not adequately vindicate proprietary rights under Article 40, and eviction at the interlocutory stage would cause greater hardship than maintaining the status quo pending trial.
Whether the Plaint should be struck out as frivolous, vexatious and an abuse of process
No; the plaint raises triable issues and striking out is a draconian remedy.
Applying D.T. Dobie, Blue Shield and Crescent Construction, the Court held that contested questions - whether renovations beyond Kshs 1,000,000 can be offset against the purchase price, whether notices complied with Clause 5.2, and whether rent demands were lawful - cannot be determined summarily at the interlocutory stage and must be ventilated at full trial.
Whether the dispute should be referred to arbitration under the agreement's dispute resolution clause
No; the parties waived the arbitration clause by fully participating in court proceedings without promptly invoking Section 6 of the Arbitration Act.
Section 6(1) requires a stay application not later than entry of appearance. Both parties had extensively participated through applications, replying affidavits and submissions. Citing Niazsons v China Road & Bridge, the Court held such submission to the court's jurisdiction amounts to waiver, and the matter shall proceed before the Court on merits.
Whether the Plaintiff was entitled to specific performance at the interlocutory stage
No; she had not performed her contractual obligations, and damages remain open for trial.
The Plaintiff admitted she had not remitted any installment under Clause 3; Sections 97 and 98 of the Evidence Act bar extrinsic evidence to vary the written contract, and no deed of variation was exhibited. Applying the maxim he who comes to equity must do equity, and authorities barring re-writing of contracts, the Court found the remedy unavailable to her at that stage.
Legal principles established
#- A preliminary objection must raise a pure point of law; it fails where it requires ascertainment of contested facts.
- The three Giella v Cassman Brown conditions for an interlocutory injunction are sequential hurdles, not to be leap-frogged.
- Striking out a plaint is a drastic remedy exercised only in plain and obvious cases; triable issues require a full trial.
- The right to apply for a stay and referral to arbitration under Section 6(1) of the Arbitration Act is lost where a party takes procedural steps in the suit without promptly invoking the clause.
- Courts cannot rewrite contracts for parties; a purchaser who has not paid the consideration cannot invoke equity to compel specific performance.
Court orders
#- 1.The Plaintiff's Notice of Motion application dated 23rd January, 2025 seeking interlocutory injunction be and is hereby found to be meritorious thus allowed
- 2.An order of interlocutory injunction granted restraining the Defendant, his agents, servants, employees, or any persons acting under his authority from trespassing upon, interfering with, alienating, disposing of, or otherwise dealing with the suit property pending the hearing and determination of the main suit
- 3.The Defendant's Notice of Motion application dated 10th February, 2025 seeking to strike out the Plaint be and is hereby found to be without merit hence dismissed entirely; the Plaint discloses triable issues suitable for determination at full trial
- 4.The Plaintiff's Notice of Preliminary Objection dated 25th February, 2025 found not to raise pure points of law within the meaning of Mukisa Biscuit and is dismissed
- 5.The Plaintiff is not entitled to specific performance at this interlocutory stage, having failed to demonstrate performance of her contractual obligations; the question of damages remains open and shall be determined upon full trial
- 6.Although the sale agreement contained an arbitration clause, the parties' conduct in fully participating in these proceedings without promptly seeking referral to arbitration disentitles them from invoking Section 6 of the Arbitration Act; the matter shall proceed before the Court for determination on merits
- 7.Mention on 20th April, 2026 for Pre-Trial Conference and case management pursuant to Order 11 of the Civil Procedure Rules, 2010; hearing on 29th September, 2026 preferably through physical means
- 8.Costs of the Notice of Motion dated 23rd January, 2025, the Notice of Motion dated 10th February, 2025, and the Notice of Preliminary Objection dated 25th February, 2025 shall be in the cause
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 of Kenya, 2010 read with Section 13 of the Environment and Land Court Act
Relief refused
#Specific performance (at this interlocutory stage)
The Plaintiff admitted she had not remitted any of the contractual installments and the contract provided only Kshs 1,000,000 as renovation deposit; equity requires a party seeking specific performance to have performed or be ready and willing to perform
Strike-out of the Plaint
The Plaint raises triable issues that cannot be determined summarily at the interlocutory stage
Preliminary Objection against the Defendant's application and Counter-Claim
It did not raise a pure point of law, touching instead on contested factual matters (validity of notices, compliance with contract terms, alleged payments/renovations)
Referral of the dispute to arbitration
The parties fully participated in the interlocutory proceedings without promptly seeking referral, waiving reliance on the arbitration clause under Section 6 of the Arbitration Act
Costs
Costs of the Notice of Motion dated 23rd January 2025, the Notice of Motion dated 10th February 2025, and the Notice of Preliminary Objection dated 25th February 2025 shall be in the cause and abide the outcome of the main suit.
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.
a. That the Plaintifi's Notice of Motion application dated 23rd January, 2025 seeking interlocutory injunction be and is hereby found to be meritorious thus allowed.
That an order of interlocutory injunction do and is hereby granted restraining the Defendant, his agents, servants, employees, or any persons acting under his authority from trespassing upon, interfering with, alienating, disposing of, or otherwise dealing with the suit property pending the hearing and determination of the main suit.
That the Notice of Motion application dated 10th February, 2025 by the Defendant seeking to strike out the Plaint be and is hereby found to be without merit hence it is dismissed entirely. The Plaint discloses triable issues suitable for determination at full trial.
That the Notice of Preliminary Objection dated 25th February, 2025 by the Plaintifi be and is hereby found not to raise pure points of law within the meaning of "Mukisa Biscuit Manufacturing Co. Limited - Versus - West End Distributors Ltd (1969) EA 696" and is hereby dismissed.
h. That the costs of the Notice of Motion dated 23rd January, 2025, the Notice of Motion dated 10th February, 2025, and the Notice of Preliminary Objection dated 25th February, 2025 shall be in the cause.
It is so ordered accordingly.
A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct.
These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent.
Issues in the judgment
#The company name appears inconsistently as 'Madina Limited' and 'Madita Limited' throughout the judgment.
The date of the Rescission Notice is given inconsistently (17th January 2025 in the replying affidavit, 16th January 2025 in submissions and the analysis).
The judgment states the Plaintiff is the registered proprietor with original Certificates of Lease although the dispute is over a sale of shares in a company owning the property and the Defendant asserts the certificate of title.
The Defendant's pleadings are internally inconsistent on the gender of the deponent ('the Afiant was informed by her Advocates' for Dieter Wellendorf).
The particulars of breach refer to a 'Completion Notice dated the 4th December, 2025' although the notice is elsewhere dated 4th December 2024.
The case number and neutral citation are not stated anywhere in the judgment text provided.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiunga v Wellendorf (Environment and Land Case Civil Suit E005 of 2025) [2026] KEELC 491 (KLR)", Case Analysis (2026). Not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/491/eng@2026-01-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.