Tihan Limited v Sohan Singh Josh & Sons Limited [2019] KEELC 3177 (KLR)
The bottom line
#A Kenyan court protected a tenant from eviction pending arbitration, showing courts will safeguard leased property while disputes go to an arbitrator.
What this practically means
#Executive summary
#Key legal issues
#Existence of an arbitration agreement and reference of the dispute to arbitration
The Lease contained an arbitration clause (Clause 19) and, a dispute having arisen over alleged breach and termination of the Lease, the matter had to be referred to arbitration.
The court found that the Lease of 21st September 2016 contained Clause 19 referring disputes between Landlord and Tenant to an arbitrator appointed by the Chartered Institute of Arbitrators (Kenya Chapter). The Defendant's accusations of late payment of rent and unconsented transfer of shares gave rise to a dispute arising from the Lease, which therefore had to be referred to an arbitrator under the agreement.
Entitlement to interim measures of protection pending arbitration
The Plaintiff satisfied the principles for an interim protective order (existence of arbitration agreement and threat to subject matter), but the injunction issued on condition of payment of rent, which was not in dispute.
Relying on Safaricom Limited v Ocean View Beach Hotel Limited, the court applied the twin essentials: existence of an arbitration agreement and threat to the subject matter. The suit land was the subject matter of the arbitration; eviction would render the arbitration nugatory. Because the rent was admitted and not in dispute, the court conditioned the injunction on the Plaintiff paying the rent and service charge up to 1st May 2019 within sixty days.
Legal principles established
#- The essentials for granting interim measures of protection under Section 7 of the Arbitration Act are the existence of an arbitration agreement and whether the subject matter is under threat.
- It is not incompatible with an arbitration agreement for a party to seek interim protection from the High Court before or during arbitral proceedings.
Court orders
#- 1.An order of injunction restraining the Defendant, its servants, employees, nominees, assigns, agents and particularly the Xfor guards, from barring access by the Plaintiff's employees, agents or customers to Go-down No A2 in Wing B road on L.R. No. 12715/6242, from re-entering or taking away the Plaintiff's property, or interfering with the Plaintiff's quiet possession, pending the inter partes hearing of the suit and the arbitration
- 2.The matter referred to arbitration pursuant to Clause 19 of the Lease dated 21st September, 2016 within sixty (60) days from the date of the Ruling
- 3.Order 1 granted on condition that the Plaintiff pays the requisite rent and service charge to the Defendant up to and including 1st May, 2019 within sixty (60) days from the date of the Ruling
- 4.Each party to bear its own costs
- Jurisdiction invoked
- Section 7(1) of the Arbitration Act, allowing the High Court to grant interim measures of protection in support of arbitration
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tihan Limited v Sohan Singh Josh & Sons Limited [2019] KEELC 3177 (KLR)", Case Analysis (2019). Notice of Motion dated 20th March, 2018 (suit number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3177/eng@2019-05-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.