[2024] KEBPRT 362 (KLR)

Wanyoike v Muchiri (Tribunal Case E1082 of 2022) [2024] KEBPRT 362 (KLR) (6 March 2024) (Ruling)

Neutral citation: [2024] KEBPRT 362 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E1082 of 2022

P May, Member

March 6, 2024

Between

James Wanyoike

Tenant

and

Andrew Muchiri

Landlord

Ruling

1. The application before me is the tenant’s chamber summons application seeking for the reference to be referred to arbitration. The gist of the application is that the parties vide the agreement executed an agreement on 30th September, 2021 which provided for an arbitration clause.

2. The parties were directed to file their responses and submissions. I have considered the same and would proceed as follows:

3. It is not unusual that the Tribunal is faced with applications of this nature. The tenancy relationship culminates from contractual obligations which at most instances are reduced into writing. Parties sometimes elect to codify the manner in which they would resolve disputes.

4. The inclusion of arbitration clauses in contracts is gaining popularity even in contracts which were previously thought to be simple. In the present dispute the agreement has been attached and under clause B of the Other conditions, the parties have agreed to submit to arbitration.

5. The starting point in deciding the present application is Section 6 (1) of the Arbitration Act which provides that:“A Court before which proceedings are brought in a matter which is the subject of an arbitration shall, if a party so applies not later than the time when the Party enters appearance or otherwise acknowledges the claim against which the stay of proceedings is sought, stay of proceedings and refer the parties to Arbitration unless it finds:a)that the Arbitration agreement is null and void, inoperative or incapable of being performed; andb)that there is not in fact any dispute between the parties with regard to the matters agreed to be referred to arbitration…”

6. In my considered opinion, I find that the Parties herein agreed under Clause B of the agreement, to refer any dispute arising therefrom to Arbitration. The Law is clear, Parties are bound by the terms of their own contract. If the Parties agreed on Arbitration as the mode of dispute settlement, then this Tribunal has no jurisdiction to entertain this dispute. Jurisdiction is everything. This was held in the celebrated case of Owners of Motor Vessels “S” Lillian Vs Caltex Oil Kenya Ltd (1989) KLR, where Nyarangi. J. (as he then was) stated that:“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the Court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a Court has no power to make one more step. Where a Court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A Court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction”.

7. I therefore find that in view of the Parties preference to refer the matter to Arbitration, the Tribunal has to down its tools. I also find that Section 10 of the Arbitration Act, provides that, no Court/Tribunal shall intervene in matter governed by the Arbitration Act except as provided for under the Act. That position has been upheld in numerous Court cases, including but not limited to Nyutu Agrovet LimitedvsAirtel Networks Ltd 2015 eKLR. Similarly, the provisions of Section 6(1) of the Arbitration Act, referred herein, clearly require that, proceedings filed which are a subject of Arbitration be stayed and the matter be referred to Arbitration.

8. In the end, the tenant’s application is allowed in terms of prayers 1 and 2 with no orders as to costs.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 6TH DAY OF MARCH, 2024. HON. PATRICIA MAYMEMBERBUSINESS PREMISES RENT TRIBUNALDelivered in the absence of the parties.