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ELCDismissedChamber Summons Application dated 1st September 2021· [2022] KEELC 248 (KLR)

Gurvir Bhabra & another v John Mologo Nderitu [2022] KEELC 248 (KLR)

High Court of Kenya
20 April 2022
2,940 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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Kenya's High Court confirmed that courts can only grant temporary protective orders pending arbitration, not decide rent disputes themselves.

What this practically means

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Executive summary

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The Applicants, registered owners of unfurnished house No. 41 on LR 209/7153/42, leased it to the Respondent for two years from 1st July 2020 at a monthly rent of Kshs. 210,000. Alleging rent arrears of Kshs. 1,456,000 as at September 2021 and the Respondent's refusal to vacate despite a notice, the Applicants moved the court by chamber summons dated 1st September 2021 under Section 7 of the Arbitration Act, seeking orders for payment of arrears, continued payment of rent, liberty to re-enter and re-take possession on default, and police enforcement, pending arbitration proceedings which they had initiated by a letter appointing an arbitrator. The Respondent raised a preliminary objection on three grounds: want of jurisdiction in the first instance, sub-judice given pending Rent Restriction Tribunal Cause No. E020 of 2021, and abuse of process, further noting that the Applicants had since evicted the Respondent through Chief Magistrates' Court orders. The court framed two issues. On sub-judice, it held the doctrine was inapplicable because a prerequisite — pendency before a court of competent jurisdiction — was unmet, the Rent Restriction Tribunal lacking jurisdiction over premises with monthly rent of Kshs. 210,000; Section 7 of the Arbitration Act in any event sanctioned the application. On the second issue, the court held the reliefs sought were substantive rather than interim measures preserving the subject matter of arbitration: questions of arrears, breach, re-entry and eviction belong to the arbitrator. Following Alison Jean Louis v Rama Homes Ltd, the court dismissed the application with costs to the Respondent.

Key legal issues

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01

Whether the proceedings are barred by res sub-judice under Section 6 of the Civil Procedure Act given the pending Rent Restriction Tribunal Cause No. E020 of 2021

Holding

Not barred; one prerequisite of the doctrine — pendency before a court/tribunal of competent jurisdiction — was not met because the Rent Restriction Tribunal lacked jurisdiction over a tenancy with monthly rent of Kshs. 210,000

Reasoning

The court reproduced Section 6 and the Supreme Court's statement of the doctrine's prerequisites in Kenya National Commission on Human Rights v Attorney General. Since the Tribunal had no jurisdiction over the dispute (rent exceeding the statutory cap), the pendency of proceedings there could not render the present application sub-judice. Further, Section 7 of the Arbitration Act independently sanctioned approaching the High Court for interim protection.

p. 5
02

Whether the orders sought are interim measures under Section 7 of the Arbitration Act

Holding

The orders are substantive, not interim; the application was misconceived and was dismissed

Reasoning

Section 7 confines the court to injunctions or interim orders preserving the subject matter or maintaining the status quo pending arbitration. The reliefs sought — payment of accrued rent arrears of Kshs. 1,456,000, continued payment of rent, forfeiture/re-entry on default, and police enforcement — would determine substantive issues of arrears, breach and eviction reserved for the arbitrator. The court adopted the reasoning in Alison Jean Louis v Rama Homes Ltd and dismissed the application with costs.

p. 6

Legal principles established

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  • Res sub-judice under Section 6 of the Civil Procedure Act requires that both suits be pending before courts or tribunals of competent jurisdiction; pendency before a tribunal without jurisdiction does not bar subsequent proceedings.
  • Under Section 7 of the Arbitration Act, the court may grant only interim measures to preserve the subject matter of arbitration; substantive relief such as determination of rent arrears, breach, re-entry and eviction is for the arbitrator.

Court orders

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  1. 1.The Chamber Summons Application dated 1st September 2021 is dismissed
  2. 2.Costs of the application awarded to the Respondent

Authorities

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Legislation

  • Civil Procedure ActSection 6
  • Arbitration ActSection 7

Cases cited (2)

  • Kenya National Commission on Human Rights v Attorney General; Independent Electoral and Boundaries Commission & 16 Others (Interested Parties)
    (2020) eKLR
  • Alison Jean Louis v Rama Homes Ltd
    (2020) eKLR
Jurisdiction invoked
Section 7 of the Arbitration Act, 1995 (interim measures by court)

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, "Gurvir Bhabra & another v John Mologo Nderitu [2022] KEELC 248 (KLR)", Case Analysis (2022). Chamber Summons Application dated 1st September 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/248/eng@2022-04-20

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