Mussani v Rama Homes Limited (Environment and Land Miscellaneous Application E173 of 2021) [2022] KEELC 2496 (KLR)
The bottom line
#Kenya's High Court protected a property buyer's assets and tenancies with court injunctions while the underlying dispute waits to go to arbitration.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent was improperly joined so as to justify a preliminary objection
The preliminary objection failed; it was not a pure point of law and misjoinder cannot defeat a suit
The Respondent contended its rights and obligations had been extinguished by a Deed of Novation dated 13/01/2021, but whether there is no cause of action requires evidence and cannot be determined on a preliminary objection. Order 1 Rule 9 bars defeat of a suit for misjoinder, and Order 1 Rule 10(2) permits striking out at any stage on terms. Following Mukisa Biscuit and the Farmland Aviation decision, the objection was dismissed.
Whether interim measures of protection/injunctions should issue pending arbitration
Both applications succeeded in part; injunctions preserved the subject matter and the applicant's possession pending arbitration
The existence of the arbitration agreement was common ground. Whether the Respondent failed to deliver registered sub-leases was for the arbitral tribunal. However, the subject matter was under threat: one of the applicant's tenants had already been evicted and there was no guarantee the other would not be evicted. Preserving the status quo pending the intended arbitration was therefore necessary, with the relief adjusted for the eviction already effected.
Legal principles established
#- A preliminary objection must be a pure point of law; if it requires ascertainment of facts or exercise of discretion it cannot succeed
- Misjoinder or non-joinder of parties cannot defeat a suit
- Under Section 7 of the Arbitration Act the High Court may grant interim measures of protection pending arbitration, including where the subject matter is under threat
Court orders
#- 1.An order of injunction restraining the Defendant from transferring two Units in Jumeirah Heights Apartments valued at Kshs. 17,000,000/- and Kshs. 16,000,000/- on LR Number 209/5273 (I.R Number 14866) pending referral of the disputes to arbitration and determination thereof
- 2.A temporary injunction against the Defendant/Respondent, its servants or agents from harassing, evicting the Plaintiff/Applicant's other tenant, encroaching into, alienating and terminating the Plaintiff/Applicant's tenancy or lease, or interfering with quiet possession of the premises on LR Number 209/5273 (I.R Number 14866) pending hearing and determination of the suit
- 3.Costs of the application dated 23/09/2021 awarded to the Plaintiff/Applicant
- 4.Costs of the application dated 5/11/2021 awarded to the Plaintiff/Applicant
- 5.The Respondent's Notice of Preliminary Objection dated 10/12/2021 dismissed with costs to the Applicant
- Jurisdiction invoked
- Section 7 of the Arbitration Act, 1995; Sections 1A, 1B and 3A of the Civil Procedure Act; Order 40 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mussani v Rama Homes Limited (Environment and Land Miscellaneous Application E173 of 2021) [2022] KEELC 2496 (KLR)", Case Analysis (2022). Not stated in judgment (miscellaneous suit, Chamber Summons dated 23/09/2021 and 5/11/2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2496/eng@2022-05-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.