[2011] KEHC 2166 (KLR)
The court found that since the applicant denied signing the agreement containing the arbitration clause, it could not simultaneously seek to rely on that clause to obtain injunctive relief under section 7 of the Arbitration Act. Without a valid and admitted arbitration agreement, there was no basis for granting...
Source-derived case information.
- Citation
- [2011] KEHC 2166 (KLR)
- Parties
- Applicant: Kenlaysia Trading Ltd; Respondent: Kenya Tourist Development Corporation
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 2 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Injunction Pending Arbitration
- Outcome
- application dismissed
- Legal Topics
- Arbitration Clauses, Injunctive Relief, Protected Tenancy, Lease Registration, Preservatory Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Kenlaysia Trading Ltd
Applicant
Kenya Tourist Development Corporation
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Injunction Pending Arbitration
Legal Issues
- 1 Whether the applicant can rely on the arbitration clause in an agreement it denies signing.
- 2 Whether an injunction should be granted under section 7 of the Arbitration Act to preserve the suit property pending arbitration.
- 3 Whether failure to register the lease rendered the applicant a protected tenant under the Landlord & Tenant (Shops, Hotels and Catering Establishments) Act.
Ratio Decidendi
The court found that since the applicant denied signing the agreement containing the arbitration clause, it could not simultaneously seek to rely on that clause to obtain injunctive relief under section 7 of the Arbitration Act. Without a valid and admitted arbitration agreement, there was no basis for granting preservatory orders. The application for injunction was therefore dismissed.
Court Disposition
application dismissed
Orders
- The application for injunction is dismissed.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
ELC. MISC. 2 OF 2011
KENLAYSIA TRADING LTD.............................................................................................APPLICANT
V E R S U S
KENYA TOURIST DEVELOPMENTCORPORATION...............................................RESPONDENT
(In the matter of an Intended Arbitration between Kenlaysia Trading Ltd and Kenya Tourist Development Corporation)
R U L I N G
Annexture “CGM3” has clause 8 which indicates that all questions in dispute between the parties in the Agreement be referred to arbitration. Paragraph 16 of the supporting affidavit states that the Plaintiff never entered into the Agreement, and that, in any case, the Agreement entered into between the parties was not registered. The Defendant is blamed for that non-registration. In paragraph 17 of the affidavit it is deponed as follows:-
“17. THAT the failure of the Respondent to present the lease for registration within the stated period rendered the Applicant a protected tenant under the Landlord & Tenant (Shops, Hotels and Catering Establishments) Act.”
The present application is made under section 7 of the Arbitration Act and Rule 2 and 11 of the Arbitration Rules 1997 for an injunction to restrain the Defendant by itself, its servants or employees from interfering with or in any way dealing with the suit property or the Plaintiff’s occupation and possession of the premises to allow for the dispute arising out of the Lease Agreement (“CGM 3”) to be referred to an arbitrator for hearing and determination.
Once the Plaintiff has denied that it signed the said Agreement it cannot rely on the arbitration clause in the same. There would therefore be no basis for the granting of any preservatory orders under section 7 of the Arbitration Act.
I dismiss the application.
DATED AND DELIVERED AT NAIROBITHIS 24TH DAY OF FEBRUARY 2011
A.O. MUCHELULE
J U D G E