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ELCStruck OutMalindi ELC No. E106 of 2024

Dysara Investments Limited v Woburn Estate Limited & another (Environment & Land Case E0106 of 2024) [2025] KEELC 1117 (KLR)

Environment and Land Court
5 March 2025
3,966 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The plaintiff moved the Environment and Land Court at Malindi by a notice of motion dated 9th October 2024 seeking injunctive orders in a dispute with Woburn Estate Limited and others concerning service charge, an alleged agreement of 3rd November 2022 on service charge arrears, forcible entry and changing of locks, and a purported scheme to sell common areas contrary to the Sectional Properties Act. The defendants responded and raised a preliminary objection on two grounds: lack of jurisdiction over the service charge dispute and res judicata, citing a long line of prior litigation between the parties including Malindi ELC No. 51 of 2014, Court of Appeal Civil Appeal No. 20 of 2018, Malindi ELC Petition No. 6 of 2020, Supreme Court Petition No. 40 of 2018, and Malindi ELC No. E056 of 2023. Applying the Mukisa Biscuits test, and following the Court of Appeal's holding that clause 2.5 of Part B of the Fourth Schedule of the lease ousts the court's jurisdiction over the amount of service charge payable in favour of expert determination by a person appointed by the Chairman of the Institute of Surveyors of Kenya, Makori J held that the core of the suit remained the contested service charge over which the court had no jurisdiction. The new pleas, including the reversionary clause complaint, were held tangential and barred by constructive res judicata. The preliminary objection was upheld, the injunction application and the entire suit were struck out with costs to the defendants.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the preliminary objection is merited
  2. 2.Whether the application for injunction should be granted
  3. 3.Who should bear costs

Key legal issues

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01

Whether the preliminary objection on jurisdiction and res judicata was merited

Holding

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

Reasoning

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.

p. 7
02

Whether the application for injunction should be granted

Holding

The injunction application was not considered on its merits as it fell with the suit upon upholding the preliminary objection

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 1.The preliminary objection is upheld to the extent that the pending application and the entire suit are struck out with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

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

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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

p. 8

Costs

Costs awarded to the defendants; the suit and pending application struck out with costs

Quotable passages

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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.
p. 8Final orders - striking out suit
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.
p. 7Jurisdiction ouster by contractual dispute resolution clause
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.
p. 8Constructive res judicata
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.
p. 2Test for preliminary objection

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, "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.