Kakembo v M/S Allied Plumbers (U) Ltd (HCT-00-LD-MC-N0-0075-2013)

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that where a lease agreement contains an arbitration clause binding successors in title, disputes concerning breach of covenants including non-payment of rent must be referred to arbitration. The court found that clause 4 of the lease agreement dated 1st February 1967, requiring arbitration of disputes, bound both the applicant lessor and respondent lessee as successors in title to the original parties, and that the matters raised required referral to arbitration under section 5 of the Arbitration & Conciliation Act.

Outcome

Application dismissed and matter referred to arbitration

Facts

The applicant obtained proprietorship of freehold land comprised in FRV 313 Folio 3 Mbuya on 16 July 2012. The freehold interest was encumbered with the respondent's lease LRV 644 Folio 49 plot 5 Kireka for 49 years effective 1 January 1967. After registration, the applicant attempted unsuccessfully to enter and take possession of the demised premises. The respondent obtained proprietorship through a chain of title traceable to the original lease agreement dated 1 February 1967 between Sarwasati and Hasmukhalar. That lease agreement contained clause 4 requiring disputes to be referred to arbitration before a sole arbitrator appointed by a High Court Judge. The applicant brought this application seeking noting of re-entry, determination of the lease, ejectment, and cancellation of lease encumbrances, alleging breach of covenants including non-payment of rent. The respondent raised preliminary objections that the application was premature and subject to arbitration, and that the procedure was misconceived.

Issues

1. Whether the application is premature and subject to arbitration under the lease agreement.
2. Whether the procedure by way of notice of motion is misconceived.
3. Whether the court has jurisdiction to determine disputes arising from the lease agreement notwithstanding an arbitration clause.

Orders

• Disagreements concerning the respondent's failure to pay the applicant rent for the leasehold known as LRV 644 Folio 49 plot 5 Kireka shall be resolved through arbitration as provided under clause 4 of the lease agreement binding on the applicant's predecessors in title and dated 1st February 1967.
• Application lapses.
• The applicant shall pay the respondent costs so far incurred during conduct of the application.

Rules and key headnotes

Legislation cited (7)

• Registration of Titles Act Cap. 230 s.103
• Registration of Titles Act Cap. 230 s.104
• Registration of Titles Act Cap. 230 s.176(b)
• Registration of Titles Act Cap. 230 s.102
• Civil Procedure Act Cap. 71 s.98
• Civil Procedure Rules S.I 71-1 Order 52 rr.1 & 2
• Arbitration & Conciliation Act Cap. 4 s.5

Cases cited (1)

• National Social Security Fund and Another v Alcon International Ltd (Supreme Court Civil Appeal No. 15 of 2009)

The original judgment as reported. Read the original PDF before relying on any passage.