Ndung’u & 5 others v Lesedi Homes Limited & 2 others (Land Case E017 of 2024) [2025] KEELC 3159 (KLR)

unit numbers 01,02,04,05,12 and 16 constructed or intended to be constructed pending the hearing and determination of this case. e. An order of injunction restraining the 1st Defendant/Respondent either by itself, its agents, servants, oficers and/or any other body or entity from transferring or undertaking or causing the transfer of the property comprised in title deed number Loc.5/Kabati/2413 to the 3rd Defendant; Boma Link Concepts Limited or its nominees or assigns pending the hearing and determination of this suit. e. Costs of this application provided for. 3. The motion is based on eight (8) grounds, and it is supported by two afidavits with four (4) annexures which are sworn by the first Plaintifi. The gist of the entire motion is as follows. Firstly, the 1st Plaintifi entered into a sale agreement with the 1st Defendant for purchase of unit number 01 constructed at Almasi Green Estate on LR. No. Loc.5/Kabati/2413. Secondly, the terms of the sale agreement required the 1st Defendant to construct and complete the house unit bought by the 1st Plaintifi within a period of one(1) year from the date of execution of the agreement. Thirdly, the 1st Plaintifi paid the full purchase price as per the agreement. Fourthly, despite making the full purchase price as agreed, the 1st Defendant did not complete the construction of the house unit that the 1st Plaintifi was purchasing. Fifthly, when the 1st Plaintifi wrote to the 1st Defendant through his advocate complaining of the breach, the 1st Defendant did not respond. Sixthly, the 1st Defendant which had bought the suit land from Evan Mbuthia Gitau at the time of the agreement did not pay the full price to him. Seventhly, the 1st Plaintifi has learnt that the 1st Defendant intends to transfer the suit land to the 3rd Defendant and unless the 1st Defendant is restrained, the 1st Plaintifi and other purchasers stand to sufier irreparable loss. In fact, the 3rd Defendant has already began ofiering the suit land for sale to third parties. For the above and other reasons, he prays for the orders as per the notice of motion dated 17-7-2024. 4. In opposing the motion and the entire suit, the 1st and 2nd Respondents have filed a notice of preliminary objection dated 24-9-2024 challenging the jurisdiction of this court to entertain the entire suit on the following grounds. Firstly, this court lacks jurisdiction to entertain the present suit owing to the doctrine of alternative dispute resolution. Secondly, there exists an Alternative Dispute Resolution clause in the impugned sale agreements being clause 10. Thirdly, the question of jurisdiction should be determined first before proceeding to determine the substantive issues. 5. The only submissions that I see on record and those by the Plaintifis’ Counsel. They are dated 6-11-2024. They raise the following issues. i. Whether the Plaintifis are entitled to the injunctive orders sought in the motion. ii. Whether the 1st and 2nd Defendants Preliminary Objection is merited. iii. Who bears the costs of the application. 6. I have carefully considered the motion in its entirety including the grounds, the two afidavits, the preliminary objection by the 1st and 2nd Defendants, the written submissions and the law cited therein . I make the following findings on the identified issues. 7. I find that the preliminary objection has no merit for the following reasons. Firstly, clause 10 of the sale agreement dated 28-2-2022 between the 1st Plaintifi and the 1st Defendant set timelines within which mediation was to commence and conclude. The time set for the mediation process to kick in is 29 days. There is evidence from the 1st Plaintifi to the efiect on 11th June 2024 his advocate wrote to the 1st Defendant declaring a dispute. Since then, the 1st Defendant has not https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3159/eng@2025-04-07 2

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responded to the said letter. The 1st Defendant is therefore out of the time set in clause 10 of the sale agreement. Secondly clause 10 IV of the sale agreement dated 28-2-22 provides as follows. “ Notwithstanding the above provisions of the clause, either party being aggrieved is entitled to seek preliminary or interim injunctive relief or conservatory measures from any court of competent jurisdiction pending the outcome of the mediation”. This means that even if there was an ongoing mediation, the Plaintifis would not be precluded from coming to court, like they did in this case. Thirdly, clause 12 of the sale agreement dated 28-2-2022 provides as follows. “ Time shall be deemed to be of essence for all the purposes of this Agreement”. Time being of essence and the 1st Defendant having failed to respond to the Plaintifis’ letters of 11th June 2024 declaring a dispute, the same Defendant cannot be heard to raise a preliminary objection such as the current one. Consequently and for the reasons already given, I find the agreement dated 28-2-2022 to be null and void owing to the delay occasioned by the 1st Defendant. 8. Regarding the issue of injunctive orders, I find that the Plaintifis have established a prima facie case with a probability of success because there is evidence that they paid the full purchase price for houses which have not been delivered to them. Secondly, it is deponed in the afidavit of 17-7-2024 that the same land on which the Plaintifis money was used is being ofiered for sale to third parties. This will be detrimental to the Plaintifis in that they have no guarantee of recovering their investments with the 1st and 2nd Defendants. There is no guarantee that the Defendants have the means to recompense the Plaintifis for their investments. The Plaintifis therefore stand to sufier loss that cannot be recovered from the Defendants. For the above stated reasons, I find merit in the motion dated 17-7-2024 and I allow it in terms of prayers (c) and (e). Costs in the cause. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 7TH DAY OF APRIL, 2025. M.N. GICHERU JUDGE. Delivered Online in the Presence of; Court Assistant – Mwangi Njonjo Plaintifis’ Counsel – Mr. Njenga 1st and 2nd Defendant’s Counsel – Mr Wambugu holding brief https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3159/eng@2025-04-07 3

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