This ruling is in respect of the Notice of Motion application dated 27th December 2024 brought by the plaintiff/Applicant pursuant to the provisions of section 7 of the Arbitration Act Cap 59 and Rule 2 of the Arbitration Rules No. 58 of 1997, Order 51 Rule 1 of the Civil Procedure Rules.
The application seeks for orders that:
- pending the hearing and determination of any arbitration proceedings between the parties herein a temporary order of injunction be issued restraining the defendant/respondent and/or its agents and representatives from evicting, closing and or terminating the lease; or in any manner whatsoever interfering with the plaintiff’s /applicant’s hospital operations situated on land parcel number TIRIKI/SHAMAKHOKHO/1205.
- the Officer Commanding Station, Vihiga Police Station be directed to enforce compliance with the orders herein.
- cost of the application be borne by the defendant/respondent.
The grounds upon which the applicant was brought are that on or about 28th April 2023, the plaintiff/applicant, being the tenant, entered into a lease agreement with the defendant/respondent, being the landlord, concerning a premise located on land parcel number TIRIKI/SHAMAKHOKHO/1205 wherein the plaintiff/applicant took over the hospital operations previously set up by the defendant/respondent with further agreement that the plaintiff/applicant improves the facility including by providing additional medical equipment.
That the lease was for a period of 6 years commencing on 1st May 2023.
That on 3rd December 2024 the Defendant/Respondent issued the applicant with a 7 days’ notice of termination of lease contrary to the one-month termination notice as required in clause 12 of the lease agreement, on grounds of delayed/ accrued rent payment. That the plaintiff/applicant is keen on settling the accrued rent of Kshs. 680,460/- in four equal monthly instalments from January 30th January 2025 to 30th April 2025. That the accrued rent arrears arose due to delayed remittance to the plaintiff/applicant by Social Health Authority caused by the transition from the previous National Housing Insurance Fund (NHIF) now known as Social Health Insurance Fund (SHIF).
That the plaintiff/applicant risks being evicted from the lease property to its detriment and loss. That it is in the interest of justice that the application be allowed.
The application was supported by the averments in the Supporting Affidavit sworn by Protas Alukhava Makani on 27th December 2024 and the annextures thereto. The annextures to the Supporting Affidavit are; a copy of lease agreement dated 28th April 2023 and letter dated 23/12/2024 by Wekesa S. Wekesa & Company Advocates on termination of the lease agreement dated 28/4/2023.
The application was opposed vide the contents of the Replying Affidavit sworn by Josephat Juma on 7th January 2025. The respondent’s case is that the application has been overtaken by events as the applicant is no longer in use and/or occupation of the suit facility. That the applicant had changed the business name to MAGO CARE HOSPITAL without the consent of the board. That the applicant failed to honor the lease agreement and had fallen in arrears of the rent.
That the action to terminate the lease agreement was based on the report from KMPDU dated 10/12/2024 which threatened to down grade the facility and the applicant’s lack of capacity as cited by KMPDU. That the facility has already been handed over to a different tenant who is in occupation. That the application is an abuse of the court process and that the same was brought in bad faith.
The application was urged orally on 15/1/2025. It was submitted on behalf of the applicant that clause 10 of the agreement dated 28th April 2023 provided for arbitration in case of any dispute.
That clause 14 of the agreement lists the items installed for purposes of running of the hospital. That all those items had been locked up and are in control of the respondent. That the premises were locked on 3rd January 2025 after the court had issued orders.
Counsel relied on the decision in Safaricom Ltd vs Ocean view beach hotel Ltd & 2 others (2010) eKLR on the conditions for grant of interim protection pending arbitration.
Counsel submitted further that while the defendant gave the plaintiff seven (7) days’ notice of termination of tenancy, the agreement provided for 30 days and section 75 of Land Act provides for one (1) month notice of termination of tenancy. That there is no evidence that there is a new tenant in the premises and that the balance of convenience tilts in favor of the plaintiff who has items and property in the premises.
On behalf of the respondent, it was submitted that the applicant is not in possession of the premises. That there is another tenant already operating the hospital. That there is no arbitration agreement between the parties. That the applicant has never referred the matter to arbitration. That the application before court has been overtaken by events. Counsel urged the court to dismiss the application.
I have considered the application, the grounds in opposition thereof and the submissions made. The substantive order sought is for a temporary injunction pending arbitration proceedings. Section 7 of the Arbitration Act pursuant to which the application is brought provides:
“(1) It is not incompatible with an arbitration agreement for a party to request from the High Court, before or during proceedings an interim measure of protection and for the High Court to grant that measure.
Where a party applies to the High Court for an injunction or other interim order and the arbitral Tribunal has already ruled on any matter relevant to the application; the High Court shall treat the ruling or any finding of fact made in the course of the ruling as conclusive for the purpose of the application.”
Rule 2 of the Arbitration Rules, No.58 of 1997 provides for the procedure for making the application that;
“Applications under sections 6 and 7 of the Act shall be made by summons in the suit.”
These provisions envisage the existence of an arbitration agreement and arbitration proceedings. The court was referred to clause 10 of the tenancy agreement dated 28/4/2023 for the arbitration clause/agreement. Clause 10 of the agreement (a copy of which was annexed to the Supporting Affidavit) provided that:
“In case of any dispute or difference arising between the parties under this agreement, the dispute shall be referred to an arbitrator appointed by the parties herein and in case there is no agreement in respect of appointment of an arbitrator, the parties shall request the Institute of Chartered Arbitrators to appoint the arbitrator and the decision of the arbitrator will be final and binding.”
According to this clause of the tenancy agreement, the parties were, in case of a dispute or difference between them, to agree on an arbitrator or request the Institute of Chartered Arbitrators to appoint an arbitrator for them. No evidence has been placed before court that such a move has been made by both or either of the parties. So as at the date of presenting the application, there were no arbitration proceedings in place. No arbitrator had been appointed either by the parties herein or the Institute.
The law in section 7 of the Arbitration Act allows parties to request the court for interim protection before or during arbitration proceedings. The interim protection is meant to safeguard the party’s interest pending the arbitration proceedings.
From the grounds of the application, the applicant avers that it is no longer in the premises. That the premises were closed on 3/1/2025 after courts order had been issued. That all the items it had installed in the hospital were locked therein.
The respondent’s position is that the hospital faced downgrading by KMPDU while being run by the applicant and that the applicant was in arrears. Those allegations of fact were not denied by the applicant, the applicant only explained the cause of its nonpayment of rent and undertook to pay the outstanding arrears by four 4 equal monthly installments.
Indeed, the Respondent’s complaints as contained in the Replying Affidavit of Josephat Juma if proved, form valid grounds for termination of the tenancy. However, the process of termination ought to be in accordance with the tenancy agreement and the law. The parties agreed vide clause 10 of the agreement that a party desiring to terminate the agreement was to issue the opposite party 30 days’ notice. The Respondent does not deny that it did not abide by the agreement when issuing the notice of termination of the tenancy. The respondent only tries to explain and justify its action. Secondly, the agreement provided for the manner of resolution of any dispute or difference arising between the parties namely; by referring it to arbitration. It is clear that when the issues that the respondent is complaining about arose, the Respondent did not resort to the mode of resolution agreed but instead served the applicant with the 7 days’ notice of termination of tenancy.
The order prayed for in the application is a temporary injunction restraining the Respondent from evicting the applicants and/or closing the premises. The conditions for grant of temporary injunction are well settled as set out in the case of Giella vs Cassman Brown Co. Ltd (1973) 358 that the Applicant must demonstrate a prima facie case with a probability of success, an interlocutory injunction will not normally be granted unless the Applicant would suffer irreparable injury which would not adequately be compensated in damages and that when the court is in doubt, it will decide the application on a balance of convenience.
It was common ground that the actions sought to be stopped namely; eviction of the applicant from the suit premises and closure of the same premises had already taken place as at the time of filing the application. An order of temporary injunction is meant to restrain an illegal action from happening. No other prayer was sought by the applicant. The applicant is bound by its pleadings and the court cannot grant that which has not been prayed for. The Respondent averred that the hospital on the suit premises is currently being run by a third party.
I find that the relief sought has been overtaken by events. The application is declined. No order as to costs.
Orders accordingly.
Ruling, dated and signed at Vihiga, read virtually this 14th February 2025 through Microsoft Teams Online Application.
E. ASATI,
JUDGE.
In the presence of:
Ajevi- Court Assistant.
Okumu for the Plaintiff/Applicant.
Wekesa for the Defendant/Respondent.