Roxborough Investments Limited v Monica Wanjiru Mburu & another [2022] KEELC 1373 (KLR)
The bottom line
#A Kenyan court protected a hotel tenant from eviction pending arbitration, but only because it agreed to deposit KES 1.2 million and start arbitration within 30 days.
What this practically means
#Executive summary
#Key legal issues
#Existence and validity of the arbitration agreement
The arbitration clause in the lease was valid since the Respondent did not argue it was null and void
The court noted the lease contained an arbitration clause and the Respondent did not challenge its validity, so disputes arising from the lease were properly reserved for arbitration. The court therefore declined to delve into the merits, confining itself to the statutory criteria for interim protection under Section 7 of the Arbitration Act.
Whether the subject matter of arbitration was under threat
Yes - the threatened termination of the lease and eviction put the subject matter under threat
The Applicant had received a notice purporting to terminate the offer to lease and the Respondent threatened re-entry and dispossession. The court found this sufficient to establish that the subject matter of the arbitration was under threat, satisfying the second Portlink/Safari criterion for interim protection.
Whether the appropriate measure of protection should be granted and on what terms
Interim protection was warranted but had to be on terms, balancing the Applicant's uncontroverted default in paying Ksh 100,000/- monthly towards rent arrears
Although the merits favoured granting protection given the threatened eviction, the court weighed the Respondent's interest, noting the Applicant had failed to honour its commitment to pay Ksh 100,000/- monthly towards arrears. It therefore granted interim protection conditional on a deposit and commencement of arbitration, preserving the subject matter while protecting the Respondent.
Legal principles established
#- A party may request and obtain interim measures of protection from the court before or during arbitral proceedings without breaching the arbitration agreement
- In determining an application for interim measures under Section 7 of the Arbitration Act, the court considers: existence of an arbitration agreement, whether the subject matter is under threat, the appropriate measure of protection after assessment of the merits, and the duration of the measure to avoid encroaching on the tribunal's mandate
- The court's role on an application for interim measures is restricted; it should not delve into the merits of the dispute reserved for the arbitral tribunal
Court orders
#- 1.Application dated 28th October 2021 allowed in terms of prayers (4) and (5)
- 2.Applicant to deposit Ksh 1,200,000/- in a joint interest-earning account in the names of the advocates for both parties within thirty (30) days
- 3.Arbitration in terms of the dispute resolution mechanism to commence within thirty (30) days
- 4.Interim protection orders to lapse automatically upon failure to comply with the deposit and arbitration conditions
- 5.Costs of the application to abide the outcome of the arbitration
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution of Kenya, 2010 read with Article 262(7); Sections 7(1) & (2) of the Arbitration Act, 1995; Sections 1A & 1B of the Civil Procedure Act; Orders 40 and 51 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Roxborough Investments Limited v Monica Wanjiru Mburu & another [2022] KEELC 1373 (KLR)", Case Analysis (2022). ELC Case (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1373/eng@2022-02-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.