Peter Kabibi Kinyanjui v Kiambu Coffee Growers Cooperative Union Limited [2021] KEELC 3879 (KLR)
The bottom line
#A Kenyan High Court protected a leaseholder's property until arbitration begins, confirming agents with powers of attorney can sue without prior court approval.
What this practically means
#Executive summary
#Key legal issues
#Capacity of the Donee under a Power of Attorney to sue
The Donee has requisite locus to sue; failure to seek court approval under Order 9 Rule 1 did not deprive him of capacity absent prejudice.
The Power of Attorney authorised James Njoroge Kinyanjui together with others to sue on behalf of the donor. Although court approval under Order 9 Rule 1 was not sought, the Respondent demonstrated no prejudice. Following Edmund Mwangi Waweru v Gabriel Wanjohi Waweru, such failure does not render the act fatally defective.
Existence of an arbitrable dispute under Clause 3.2 of the Lease
There is a dispute between the parties covered by the arbitration clause, whether or not there is breach, so reference to arbitration is merited.
The court defined a dispute as a conflict or controversy and found the parties' conflicting averments over variation, breach and frustration of the lease constituted a dispute falling within Clause 3.2, which captures all disputes touching the lease, its construction or application.
Entitlement to interim injunctive protection under Section 7 of the Arbitration Act
The subject matter of the arbitration was under threat following the purported termination of the lease, entitling the Applicant to interim injunctive measures until arbitration commences.
Applying Safaricom Limited v Ocean View Beach Hotel Limited, the court found an arbitration agreement existed, the subject matter was under threat given the 30th March 2017 termination notice and development on the land, and interim protection was the appropriate measure, limited to avoid encroaching on the tribunal's decision-making power.
Legal principles established
#- Failure by a holder of a power of attorney to seek court approval before suing does not, absent prejudice, deprive him of capacity to sue.
- Where an arbitration agreement covers the dispute, the court should refer the matter to arbitration and grant only interim measures of protection without prejudicing the arbitration.
Court orders
#- 1.Pending the Commencement of the Arbitration proceedings, a temporary injunction be and is hereby issued restraining the Respondent whether by itself, its agents, employees, assigns, servants or any other person claiming under it whatsoever from evicting, threatening to evict, demolishing, selling, disposing of, charging, pledging, dealing, interfering with and or intermeddling in any manner whatsoever with the Applicant's quiet and peaceful enjoyment of the property known as Title Number Kabete/Kibichiko/755.
- 2.The dispute between the Applicant and the Respondent be referred to Arbitration for hearing and determination.
- 3.The costs of this Application be in cause.
- Jurisdiction invoked
- Section 7 of the Arbitration Act (interim measures by the High Court) and Clause 3.2 of the Lease Agreement
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Kabibi Kinyanjui v Kiambu Coffee Growers Cooperative Union Limited [2021] KEELC 3879 (KLR)", Case Analysis (2021). Chamber Summons dated 12th April 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3879/eng@2021-03-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.