https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7401

AL ASAB General Contracting LLC t/a AL ASAB Real Estate Limited-Kenya v Season Global Limited & 2 others (Miscellaneous Application E819 of 2025) [2026] KEHC 7401 (KLR) (Commercial and Tax) (28 May 2026) (Ruling) Neutral citation: [2026] KEHC 7401 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Miscellaneous Application E819 of 2025 MO Ado, J May 28, 2026 Between AL ASAB General Contracting LLC t/a AL ASAB Real Estate Limited-Kenya Applicant and Season Global Limited 1st Respondent Bishar Mohamed 2nd Respondent The View By The Park Limited 3rd Respondent Ruling 1.Before the court is the Chamber Summons dated 9th December 2025 brought principally under section 7 of the Arbitration Act, 1995, and Articles 159(2)(c) of the Constitution. The Applicant seeks interim measures of protection pending reference of the dispute between the parties to arbitration. 2.The substantive prayers sought are for orders directing the Land Registrar to register cautions against Title Numbers NAIROBI/BLOCK 146/206 and NAIROBI/BLOCK 146/207, injunctive orders restraining the Respondents from dealing with the suit properties, orders restoring possession of the properties to the Applicant, and preservation orders pending the hearing and determination of the intended arbitration. 3.The application is supported by the affidavit of Burhan M. Farah, sworn on 9th December 2025, and the Applicant’s written submissions. The Respondents oppose the application through the replying affidavit and written submissions dated 24th January 2026. The Applicant’s Case 4.The Applicant stated that the parties entered into a Joint Venture Agreement dated 21st June 2024 for the development of a mixed-use project on parcels known as LR Nos. 209/10710 and 209/10709, now registered as NAIROBI/BLOCK 146/206 and NAIROBI/BLOCK 146/207. 5.It averred that Clause 26 of the Joint Venture Agreement contains an arbitration clause requiring disputes arising from the agreement to be referred to arbitration. 6.The Applicant contended that pursuant to the agreement, it expended substantial sums towards implementation of the project, including environmental impact assessment studies, consultants’ fees, approvals, security expenses, public participation exercises, and other project-related expenses amounting to approximately USD 1,573,680.28. 7.It further stated that it advanced to the Respondents a loan of USD 250,000 to avert foreclosure of the suit properties and that, despite these investments, the Respondents have unlawfully terminated the Joint Venture Agreement, repossessed the suit properties, and threatened to defeat the intended arbitration by dealing with the properties. 8.The Applicant therefore urged the court to preserve the suit properties pending arbitration, contending that the subject matter of the intended arbitration is under threat. The Respondents’ Case 9.The Respondents oppose the application on the basis that the Applicant failed to perform its obligations under the Joint Venture Agreement. They state that despite being required to commence construction and obtain approvals within six months, the Applicant failed to secure approvals from NEMA, KCAA and Nairobi City County and failed to break ground even after approximately thirty-one (31) months. 10.The Respondents further contended that the 3rd Respondent is the registered owner of the suit properties and that the Applicant has no proprietary interest therein. They also disputed the alleged expenditure claimed by the Applicant and asserted that no documentary proof was produced to substantiate the alleged investment. 11.The Respondents submitted that the dispute is purely commercial in nature and any loss suffered by the Applicant is quantifiable and compensable by damages. They argued that the Applicant has not demonstrated any threat to the subject matter warranting the grant of interim measures under section 7 of the Arbitration Act. 12.The Respondents also argued that some of the orders sought, particularly restoration of possession, are final in nature and would improperly encroach upon the jurisdiction of the arbitral tribunal. Analysis and Determination 13.The court has considered the application, affidavits, submissions and authorities relied upon by the parties. 14.Section 7 of the Arbitration Act, No. 4 of 1995 provides the statutory basis for interim measures of protection by the High Court pending arbitration: The provision states that:“It is not incompatible with an arbitration agreement for a party to request from the High Court, before or during arbitral proceedings, an interim measure of protection and for the High Court to grant that measure.” 15.The jurisdiction donated to the court under section 7 is special and limited. It is intended to support, and not supplant, the arbitral process. The court is therefore required to exercise restraint and avoid making determinations that would encroach upon matters reserved for the arbitral tribunal. 16.The guiding principles applicable to applications under section 7 were settled by the Court of Appeal in Safaricom Limited v Ocean View Beach Hotel Limited & 2 Others [2010] eKLR where the court stated that:“Under our system of the law on arbitration the essentials which the court must take into account before issuing the interim measures of protection are:1.The existence of an arbitration agreement.2.Whether the subject matter of arbitration is under threat.3.In the special circumstances which is the appropriate measure of protection after an assessment of the merits of the application.4.For what period must the measure be given especially if requested for before the commencement of the arbitration so as to avoid encroaching on the tribunal’s decision-making power as intended by the parties.” 17.The Court of Appeal further cautioned that:“A court of law when asked to issue interim measures of protection must always be reluctant to make a decision that would risk prejudicing the outcome of the arbitration.” 18.The first issue is whether there exists an arbitration agreement between the parties. 19.Clause 26 of the Joint Venture Agreement dated 21st June 2024 contains an arbitration clause requiring disputes arising out of the agreement to be referred to arbitration. The existence of the arbitration agreement is therefore not disputed. Indeed, both parties have approached the matter on the basis that the dispute is arbitrable. The first requirement under section 7 is therefore satisfied. 20.The second issue is whether the subject matter of the intended arbitration is under threat. 21.The Applicant’s case is that the Joint Venture Agreement concerned development of the suit properties known as NAIROBI/BLOCK 146/206 and NAIROBI/BLOCK 146/207, and that the Respondents have threatened to terminate the agreement, repossess the properties, and possibly deal with them to the prejudice of the intended arbitration. 22.The Respondents, on the other hand, contend that the Applicant failed to perform its obligations under the agreement, including obtaining approvals and commencing the project within the agreed timelines. They further maintain that the Applicant has no proprietary interest in the suit properties and that the claim is purely commercial and compensable by damages. 23.At this stage, the court is not required to determine which party is in breach of the Joint Venture Agreement. That is a matter reserved for the arbitral tribunal. The court’s role is limited to determining whether the subject matter ought to be preserved pending arbitration. 24.In Jung Bong Sue v Afrikon Limited & Another [2015] eKLR, the court observed that:“At this stage, the court should not delve into the merits or demerits of the respective claims and/or counterclaims or attempt to resolve the dispute. That is for the arbitrator.” 25.Similarly, in Isolux Ingenieria S.A v Kenya Electricity Transmission Company Limited & 5 Others [2017] eKLR, the court held that the existence of an arbitration clause does not automatically entitle a party to interim protection and that the applicant must demonstrate that the subject matter is under threat and that the orders sought are necessary to preserve the arbitral process. 26.I have considered the pleadings and affidavits filed. The Joint Venture Agreement revolved around development of the suit properties. The Applicant seeks, among other reliefs before the arbitral tribunal, specific performance of the agreement and restoration of possession of the properties. The properties are therefore central to the dispute. 27.Although the Respondents deny any intention to alienate the properties, the correspondence exhibited, and the admitted termination dispute demonstrate that the relationship between the parties has irretrievably broken down. In those circumstances, the possibility of dealings affecting the properties cannot be dismissed altogether. 28.In the present case, I am satisfied that, absent preservatory orders, there exists a real possibility that dealings with the suit properties may complicate or prejudice the arbitral process. 29.The remaining issue is the nature of the appropriate interim protection. 30.The Applicant also seeks orders restoring possession of the suit properties and restraining the Respondents from interfering with the Applicant’s possession pending arbitration. 31.In my view, those prayers are substantive and final in nature. Granting them would effectively determine contested issues relating to possession and performance of the Joint Venture Agreement before the arbitral tribunal has had the opportunity to consider the dispute. Such orders would offend the caution expressed in Safaricom Limited v Ocean View Beach Hotel Limited & 2 Others (supra) that courts should avoid prejudicing the outcome of the arbitration. 32.An order preserving the suit properties from alienation or encumbrance would, in the view of this Court, sufficiently serve the limited purpose contemplated under section 7 of the Arbitration Act without intruding into the merits of the dispute. 33.Consequently, the court therefore finds that preservation of the status of the suit properties pending commencement and determination of the arbitration constitutes the appropriate and sufficient interim measure. 34.In the result, the Chamber Summons dated 9th December 2025 succeeds partly, and the court makes the following orders:i.Pending commencement and determination of the arbitration proceedings contemplated under Clause 26 of the Joint Venture Agreement dated 21st June 2024, an order is hereby issued restraining the Respondents whether by themselves, servants, agents or otherwise from selling, transferring, charging, leasing, alienating or otherwise dealing with Title Numbers NAIROBI/BLOCK 146/206 and NAIROBI/BLOCK 146/207 in a manner that would prejudice the arbitral proceedings.ii.The Land Registrar, Nairobi, shall register an inhibition against Title Numbers NAIROBI/BLOCK 146/206 and NAIROBI/BLOCK 146/207 pending determination of the arbitration or further orders of the arbitral tribunal.iii.The prayer seeking restoration of possession of the suit properties to the Applicant is declined.iv.The Applicant shall commence arbitral proceedings within thirty (30) days from the date hereof, failing which the preservatory orders herein shall lapse automatically. 35.Costs of the application shall abide the outcome of the arbitration. 36.It is so ordered. DATED, SIGNED, AND DELIVERED AT NAIROBI THIS 28TH DAY OF MAY 2026HON. MR. JUSTICE MOSES ADOJudge of the High CourtIn the Presence of:Moses C/AAbdulahi………………for the ApplicantOdipo…………………for the Respondent