Omari Wafula Asman v John Tabalya Mukite [2017] KEELC 1414 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the lease had been terminated
The court found no evidence of termination; the landlord's letter sought vacant possession only for renovations and still recognized the plaintiff as tenant.
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.
Nature of the injunction sought
Since possession was given up only for renovations under a subsisting lease, the relief sought was a temporary, not mandatory, injunction.
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.
Applicability of Section 7(1) of the Arbitration Act
Section 7(1) applies, permitting a party to seek interim measures of protection from the court before or during arbitral proceedings.
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.
Whether the conditions for interim protection were met
Yes — the subject matter required protection; the respondent would suffer no prejudice since the lease subsisted and obligations remained enforceable.
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.
Legal principles established
#- 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
#- 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.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.Costs in the intended arbitration
- Jurisdiction invoked
- Section 7(1) of the Arbitration Act 1995; Sections 3A and 63(c) and (e) of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.