Gurvir Bhabra & another v John Mologo Nderitu [2022] KEELC 248 (KLR)
The bottom line
#Kenya's High Court confirmed that courts can only grant temporary protective orders pending arbitration, not decide rent disputes themselves.
What this practically means
#Executive summary
#Key legal issues
#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
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
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.
Whether the orders sought are interim measures under Section 7 of the Arbitration Act
The orders are substantive, not interim; the application was misconceived and was dismissed
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.
Legal principles established
#- 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
#- 1.The Chamber Summons Application dated 1st September 2021 is dismissed
- 2.Costs of the application awarded to the Respondent
- Jurisdiction invoked
- Section 7 of the Arbitration Act, 1995 (interim measures by court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.