1.This ruling is in respect to the Plaintiffs’ application dated December 14, 2022 and the Defendant’s preliminary objection dated January 27, 2023.
2.The Plaintiffs’ application sought the following:
i)Spent.ii)That pending the interparties hearing and determination of this application, a temporary order of injunction be and is hereby issued restraining the Defendant/Respondent whether acting in person or through her agents from selling the suit property to 3rd parties, putting up and or advertising the property for sale;iii)That pending the interparties hearing and determination of this application a temporary order of injunction be and is hereby issued to the Defendant/Respondent whether acting in person or through her agents from retaining 10% of the Purchase price and or charging any interest on balance of the Purchase price.iv)That this application be heard interparties on such a date and time as this Honourable Court may direct.v)That pending resolution of the dispute between the Parties by arbitration, a temporary order of injunction be and is hereby issued restraining the Defendant/ Respondent whether acting in person or through her agents from selling the suit property to 3rd parties, putting up and or advertising that Property for sale;vi)That pending resolution of the dispute between the Parties the Parties by arbitration, a temporary order of injunction be and is hereby issued restraining the Defendant/Respondent whether acting in person or through her agents from retaining 10% of the Purchase price and or charging any interest on balance of the Purchase price.vii)That costs of this Application be in the cause.
3.In opposition to the said application, the Defendant raised a Preliminary Objection in the following terms:
4.On February 2, 2023, the Court ordered that the preliminary objection be considered as a response to the application. The two applications be heard together by way of written submissions.
5.In submissions dated December 14, 2022, the Plaintiffs’ argued that the arbitration proceedings would be nugatory without preserving the property. It was further argued that since the process of appointment of an arbitrator was not a straight forward process the Court ought to take judicial notice and therefore move to preserve the suit property. Relying on the case of Mapema Holdings Limited v Thika Dairies Limited & 4 others  eKLR it was specifically argued that they were likely to suffer irreparable harm and were equally apprehensive of losing the property vide disposal by the Defendant to 3rd parties. On a balance of convenience, it was submitted that the Applicants were greatly inconvenienced by forfeit of the 10% deposit that was occasioned by the Defendant’s breach.
6.The Defendant submitted that parties were bound by the Sale Agreement in which Clause 18.2 expressly outlined arbitration as the appropriate dispute resolution mechanism. Relying on Nairobi Elc Case NO E418 OF 2022 Page 4 Article 159(2)(c) of the Constitution and Section 6(1) of the Arbitration Act, it was argued that the Court should find that parties were bound they their mutually agreed agreement and exhaust the given remedies with the Agreement.
7.I have considered the application, the preliminary objection filed, the respective written submissions and the authorities cited. The issues for determination are:
8.It is clear that a Preliminary Objection must be raised on a point of law as reiterated in the case of Mukhisa Biscuits Manufacturing Co Ltd v West-End Distributors Limited  EA 696. Having raised the objection on a specific provision of the law, the preliminary objection would be alive and within the jurisdiction of this court.
9.The Court of Appeal in Nitin Properties Ltd v Singh Kalsi & another  eKLR highlighted the principle when it stated:
10.In respect to the arbitration, Section 6 of the Arbitration Act stipulates as follows:
11.The tenets for granting of stay of proceedings are well established in the case of Esmaj v Mistry Shamji Lalji & Co  KLR, where the Court of Appeal considered the following: -a)The court is not bound to grant stay but has discretion to grant or not to grant.b)The discretion to grant should not be exercised when strong cause for doing so is shown.c)The burden of proving such strong cause is on the plaintiff.d)In exercising discretion, the court should take into account the circumstances of the particular case.e)A mere balance of convenience is not enough.12. This Court has considered that although the use of 'shall' places a mandatory action for reference to arbitration and consequent stay of proceedings, this is pegged upon a party’s swift action to present the given application. In the case Mt Kenya University v Step Up Holding (K) Ltd  eKLR , the Court of Appeal held that:
13.My perusal of Clause 18 of the Sale Agreement dated July 29, 2022, outlines the dispute resolution mechanisms firstly through negotiation and then arbitration as a mechanism to resolve 'any dispute, controversy or claim arising out of or in connection with this Agreement'. To my mind, this confirms that the parties did intend not only to be bound by the Agreement in its entirety but also adhere to their out of court settlement processes.
14.At this juncture, the Court is duty bound to down its tools and allow parties to exhaust remedies availed by the Sale Agreement. I find that the preliminary objection dated January 27, 2023 is merited and wholly extinguishes all interim prayers sought in the application dated December 14, 2022 as the suit stands struck out with no orders as to costs.
15.It is so ordered.