Fenley Ngairah Desouza t/a H.G Mark Theodosis Georgios v Presiding Bishop, Orthodox Diocese of Kisumu & all Western Kenya [2021] KEBPRT 476 (KLR)

REPUBLIC OF KENYA

IN THE BUSINESS PREMISES RENT TRIBUNAL AT NAIROBI

BPRT CASE NUMBER 71 OF 2020 (KAKAMEGA)

FENLEY NGAIRAH DESOUZA T/A

H.G MARK THEODOSIS GEORGIOS..............................TENANT

VERSUS

THE PRESIDING BISHOP, ORTHODOX DIOCESE OF KISUMU

& ALL WESTERN KENYA............................................LANDLORD

RULING

By an application dated 13th July 2020, the landlord sought in material part for orders:-

1. THAT the honorable Tribunal do stay the proceedings in this case and refer the matter to arbitration in accordance with Clause 18 of the Lease Agreement dated 14th February 2017 between the parties herein.

2.  THAT the Order of temporary injunction made by the Honourable Tribunal on 3rd July, 2020 and issued on 6th July 2020 be lifted and set aside and

3.  THAT the application dated 15th July 2020 be struck out with costs.

The application is supported by the annexed affidavit of H.G. Mark Theodosis Georgios and on the grounds:-

(a) THAT the dispute before the Honourable Tribunal is based on the Lease Agreement dated 14th February, 2017 (hereinafter between the parties herein).

(b) THAT the Lease Agreement has been produced by the Plaintiff herein as annexure AM 3 at Paragraph 8 of the Supporting Affidavit sworn on 15th July 2020.

(c) THAT under paragraph 18 of the Lease agreement there is a valid Arbitral Clause which stipulates that:-

"In the event of a dispute arising, the same shall be resolved through arbitration of three arbitrators each party appointing one and a third one being appointed by the Law Society of Kenya."

(d) THAT this application is thus made pursuant to Section 6 of the Arbitration Act.

(e) THAT pursuant to Section 6(2) of the Arbitration Act, the proceedings in this case must be stayed until this application is heard and determined.

(f)  THAT pursuant to Section 7 of the Arbitration Act, only the High Court has jurisdiction to grant interim measure of protection and therefore the interim orders of injunction ought to be lifted and set aside.

The application is opposed through the affidavit of the Tenant’s advocate sworn on 21st July 2020.

It is the Tenant’s case that there is no dispute arising from the Lease Agreement but

an outright breach by the Landlord/Applicant, hence the reason the

Tenant/Respondent moved the Honourable Tribunal for immediate protection.

The Tenant further deposes that having breached, ignored and/or overthrown the said Lease agreement, the Landlord/Applicant is dishonest and has no moral authority to now seek to cling on the Arbitration clause thereof.

That the Landlord/Applicant is by his conduct not at all interested in any arbitration and is seeking the lifting and setting aside of the temporary injunction granted herein so as to unlawfully evict the Tenant/Respondent.

The tenant argues that Section 6(2) and 7 of the Arbitration Act are not automatic and/or applicable herein to warrant stay of proceedings and referral of parties to arbitration as purported by the Landlord/Applicant.

That it is obvious from the Landlord/Applicant's conduct that the arbitration agreement is null and void, inoperative or incapable of being performed.

That there is in fact no dispute between the parties with regard to any matter agreed to be referred to arbitration and this Honourable Tribunal has been duly clothed with jurisdiction over the subject matter herein by Section 2 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act.

The Tenant deposes that Section 4 of the aforesaid Act provides that 'Notwithstanding the provisions of any written law or anything contained in the terms and conditions of a controlled tenancy, no such tenancy shall terminate or be terminated and no term or condition in or right or service enjoyed by the tenant of any such tenancy shall be altered otherwise than in accordance with provisions of the Act"

Finally, the Tenant deposes that there is no doubt that under Section 12 of the Act, this honourable Tribunal shall in relation to its area of jurisdiction, have power to do all things which it is required or empowered to do.

Although the application was directed to be disposed of by way of written submissions, only the Tenant filed.

I have looked at the said submissions and as well as pleadings filed by both parties and I am of the considered view that the application ought to fail for the following reasons:-

(a) There is no dispute in regard to the terms of the lease agreement to warrant reference to arbitration.

(b) The present dispute relates to the notice of termination of lease dated AM1 and alleged interference with the tenant’s quiet possession and occupation of the demised premises.

(c) The jurisdiction to grant the equitable remedy of injunction in respect of controlled tenancies can only be exercised by this tribunal.

(d) The provisions of the Arbitration Act cited by the Landlord give discretion to the trial court to either refer a matter to arbitration or proceed to hear and determine the same. On my part, I choose to hear the matter instead of ordering referral given the alleged conduct of the Landlord which if true does not espouse the goodwill for smooth conduct of arbitration.

(e) The decision in the case of Mt Kenya University Vs Step Up Holding (K) Ltd [2018] eKLRwhich provides good guidance on the interpretation of Section 6 of the Arbitration Act.

The upshot of my foregoing analysis is that the application is dismissed with costs in the cause.

GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered this 12th day of March, 2021 in the presence of Shijenje for the Tenant/Respondent.

HON. P. MAY

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNA