Dysara Investments Limited v Woburn Estate Limited & another (Environment & Land Case E0106 of 2024) [2025] KEELC 1117 (KLR)
The bottom line
#The Environment and Land Court struck out a service charge suit because the lease required the parties to settle such disputes through expert determination, not litigation.
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 is merited
- 2.Whether the application for injunction should be granted
- 3.Who should bear costs
Key legal issues
#Whether the preliminary objection on jurisdiction and res judicata was merited
The preliminary objection was upheld; the court lacked jurisdiction over the service charge dispute due to the contractual dispute resolution mechanism in clause 2.5, and the suit was also barred by constructive res judicata
The court applied the Mukisa Biscuits test and reviewed the litigation history between the parties. The Court of Appeal in Civil Appeal No. 20 of 2018 had definitively held that the ELC has no jurisdiction over disputes centred on service charge because clause 2.5 of the lease provides for expert determination. The new issues pleaded, including the agreement of 3rd November 2022 and the reversionary clause, were held to be tangential to the service charge issue and should have been raised earlier, engaging constructive res judicata.
Whether the application for injunction should be granted
The injunction application was not considered on its merits as it fell with the suit upon upholding the preliminary objection
Because the preliminary objection succeeded on jurisdiction and res judicata grounds, the pending injunction application was struck out together with the entire suit. The court did not reach the merits of the injunction.
Legal principles established
#- A preliminary objection consists of a pure point of law which, if argued, may dispose of the suit
- Where parties contractually agree on a dispute resolution mechanism for service charge disputes, the ELC has no jurisdiction over the amount of service charge payable
- Raising matters that should have been litigated in prior suits between the same parties attracts constructive res judicata
Court orders
#- 1.The preliminary objection is upheld to the extent that the pending application and the entire suit are struck out with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(b) and (3) of the Constitution of Kenya 2010; Section 13 of the Environment and Land Court Act 2011
Relief refused
#Application for injunction dated 9th October 2024
The court lacked jurisdiction over the service charge dispute, having regard to the internal dispute resolution mechanism in clause 2.5 of the lease and prior decisions of the Court of Appeal
Costs
Costs awarded to the defendants; the suit and pending application struck out with costs
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.
In conclusion, the preliminary objection is hereby upheld to the extent that the pending application and the entire suit are hereby struck out with costs.
Considering the cited precedents, we are still examining the service charge issue; this court does not have jurisdiction in view of the internal dispute resolution mechanism established by parties.
Arising from the foregoing, what is being raised in the current suit is not new; it should have been raised in the former suits – constructive res judicata sets in. I down tools.
A Preliminary Objection consists of a pure point of law which has been pleaded or which arises by clear implication out of pleading and which if argued as a Preliminary point may dispose of the suit.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dysara Investments Limited v Woburn Estate Limited & another (Environment & Land Case E0106 of 2024) [2025] KEELC 1117 (KLR)", Case Analysis (2025). Malindi ELC No. E106 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1117/eng@2025-03-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.