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ELCAllowedNot stated in the judgment· [2017] KEELC 1414 (KLR)

Omari Wafula Asman v John Tabalya Mukite [2017] KEELC 1414 (KLR)

High Court of Kenya
28 September 2017
2,958 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan High Court protected a tenant's possession pending arbitration, but only for 30 days, requiring parties to move fast to arbitration.

What this practically means

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Executive summary

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This is a ruling on the plaintiff's notice of motion dated 29/6/2017 seeking an injunction restraining the defendant from obstructing or interfering with the plaintiff's quiet use, enjoyment and occupation of L.R No. 2116/529/IV Kitale Municipality (part), pending arbitral proceedings under Clause 5 of a six-year lease dated 1/11/2016, brought under Section 7(1) of the Arbitration Act and Sections 3A and 63 of the Civil Procedure Act. The plaintiff alleged that the defendant requisitioned vacant possession in February 2017 ostensibly for two months of renovations at the plaintiff's expense, but then received Kshs.700,000/= from a third party with intent to re-let the premises. The defendant opposed, arguing the lease was unregistered, the plaintiff was in rent and utility arrears, had voluntarily surrendered possession and closed business, and that the relief sought was a mandatory injunction which could not issue. Mwangi Njoroge J held that the defendant's letter was not a termination of the lease and still recognized the plaintiff as tenant; that the relief sought was temporary rather than mandatory; and that Section 7(1) of the Arbitration Act applied, applying the Portlink line of authority on interim measures of protection rather than the Giella v Cassman Brown principles. Debatable issues of possession and arrears were left for trial or arbitration. The court allowed the application, granting an injunction to protect the subject matter, to last 30 days to enable institution of arbitral proceedings, failing which it would lapse automatically, with costs in the intended arbitration.

Key legal issues

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01

Whether the lease had been terminated

Holding

The court found no evidence of termination; the landlord's letter sought vacant possession only for renovations and still recognized the plaintiff as tenant.

Reasoning

The letter of 10/2/2017 sought vacant possession for renovations estimated at two months, to be at the plaintiff's expense, and was not expressed as a termination of the lease. It still recognized the plaintiff as a tenant. No other evidence showed the lease was terminated. The lease was subsequently registered, though the legal validity of registration after commencement of the suit was left for the main hearing.

p. 2
02

Nature of the injunction sought

Holding

Since possession was given up only for renovations under a subsisting lease, the relief sought was a temporary, not mandatory, injunction.

Reasoning

The court held that because the lease was not terminated and the defendant's stated intention was only to renovate at the plaintiff's expense, restraining interference with possession beyond such renovation works was merely a temporary injunction. Any interference with physical possession during the pendency of the lease, excluding the renovation works, would adversely affect the applicant's rights under the agreement.

p. 2
03

Applicability of Section 7(1) of the Arbitration Act

Holding

Section 7(1) applies, permitting a party to seek interim measures of protection from the court before or during arbitral proceedings.

Reasoning

Clause 5 of the lease required disputes to be referred to arbitration under the Arbitration Act 1995. The applicant sought protection pending such arbitral proceedings. The court adopted the approach in Portlink Ltd and Presbeta Investments, focusing on whether an arbitration agreement exists and whether the subject matter is under threat, rather than the Giella v Cassman Brown injunction principles.

p. 3
04

Whether the conditions for interim protection were met

Holding

Yes — the subject matter required protection; the respondent would suffer no prejudice since the lease subsisted and obligations remained enforceable.

Reasoning

The respondent did not deny requisitioning the premises for repairs to be done at the applicant's expense within two months. The applicant applied to court promptly. The allegations of surrender and rent arrears were debatable and could not be resolved at the interlocutory stage. Since the lease subsisted and the applicant remained liable under it, the respondent would suffer no prejudice if the orders issued.

p. 5

Legal principles established

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  • Where a lease containing an arbitration clause remains in existence, the court may grant an interim measure of protection under Section 7(1) of the Arbitration Act to preserve the subject matter pending arbitration.

Court orders

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  1. 1.An injunction restraining the defendant from obstructing or interfering with the plaintiff's quiet use, enjoyment and/or occupation of L.R No. 2116/529/IV Kitale Municipality (part), to protect the subject matter pending arbitration
  2. 2.The injunction to last only 30 days to enable the parties to institute arbitral proceedings, failing which the order shall automatically cease to operate
  3. 3.Costs in the intended arbitration

Authorities

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Legislation

  • Arbitration ActSection 7(1)
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 63(c) and (e)

Cases cited (4)

  • Safari Limited –vs- Ocean View Beach Hotel Ltd and 2 others
    2010 eKLR
  • Presbeta Investments Ltd & Another –vs- National Bank of Kenya & 2 Others
    2016 eKLR
  • Euro Water Services Ltd –vs- Peter Gatune
    2015 eKLR
  • Giella –vs- Cassman Brown
Jurisdiction invoked
Section 7(1) of the Arbitration Act 1995; Sections 3A and 63(c) and (e) of the Civil Procedure Act

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, "Omari Wafula Asman v John Tabalya Mukite [2017] KEELC 1414 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1414/eng@2017-09-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.