https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10934

Automated Entrance Systems v Trade Mark Africa & others (Arbitration Cause E002 of 2026) [2026] KEHC 10934 (KLR) (Commercial and Tax) (16 July 2026) (Ruling) Neutral citation: [2026] KEHC 10934 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Arbitration Cause E002 of 2026 BK Njoroge, J July 16, 2026 Between Automated Entrance Systems Plaintiff and Trade Mark Africa & others Defendant Ruling 1.The application before the Court is dated 10th July 2026. It is presented to Court under a certificate of urgency. Background Facts 2.It seeks prayers which can be summarized as follows;(a)Reinstate and extend the interim preservation orders granted on 13th January 2026 in terms of prayer 2, 3 and 4 of the chamber summons dated 8th January, 2026.(b)The interim preservatory orders granted on 13th July 2026 and extended on various dates remain in force until delivery of the Ruling. 3.The application is opposed by the Respondent through the replying affidavit of George Okullo sworn on 15th July 2026, and the affidavit of Wanjiku King’ori sworn on 15th July 2026. 4.The application is supported by the affidavit of Paul Kisala sworn on 10th July 2026. 5.The deponents are all Advocates who are actively litigating in this matter. They have contrary to the usual caution descended into the arena of the dispute. They have all taken the positions of their clients as deponents of facts. This is not to be encouraged among Counsel. This is unless the dictates of the circumstances allow for such. In any event such should be rare and not the norm. 6.Mr. Kimathi depones that his client enjoyed interim orders from 13.1.2026. They were extended from time to time. This is until he forgot to extend them at the last Court attendance on 9.7.2026. This was before my brother Ado J. 7.The parties have been heard in their dispute. What is pending is a Ruling before Ado J. in the new term on 17.9.2026. 8.Mr. Kimathi implores upon this Court to secure the security preserved by the interim orders in this matter. That unless they are reinstated and extended, the pending dispute would be rendered nugatory. That the Respondent has no assets in Kenya or Zambia. This is save for funds held by the Interested Party. 9.The Respondent submits strongly that this Court cannot revive orders that have already lapsed. That this Court would be acting against established precedent and in excess of jurisdiction. 10.They also allude to a statement made by Miss Wanjiku from the bar that the funds have already been released. There is no security being held. 11.They lay blame squarely on Mr. Kimathi. That despite attending Court with co-counsel, they forgot to extend the interim orders. That being their mistakes, they should own up and live with it as well as the consequences. That no blame can be attached to the Respondent. 12.Miss Wanjiku for the Interested Party submits that the Court cannot revive the interim orders. That a fresh application ought to be made for that purpose, not one seeking an extension. 13.She also stated from the Bar that she had received a text message that her clients had already released the funds to the Respondent. That the Court should not be seen to act in vain by extending orders when the horses have already bolted from the stable Issues for Determination 14.To this Court the questions before it is whether it can reinstate and extend the interim preservation orders that are said to have lapsed. The second issue is whether the Applicant has made a good case for granting such orders. Analysis 15.This Court is certain that this is not the last time it will be faced with such an application seeking to reinstate or extend orders, which have lapsed. As long as counsel continue to carry their practice along the court corridors and virtual screens, lapses and blunders leading to such applications will be made to Courts. The Court is reminded of the Court of Appeal decision in Philip Kiptoo Chemwolo & Another v Augustine Kubende [1986] eKLR. The principle that blunders and mistakes of Counsel should not be visited upon the client, come to mind. 16.The Court is satisfied that in the interests of justice under Section 1A & 1B (the oxygen principle) and 3A of the Civil Procedure Act, it possesses and retains an intrinsic and inherent jurisdiction to reinstate and extend its own orders. If in doubt the Court refers to Article 159 of the Constitution that deals with the manner in which Judicial authority is to be exercised. 17.This matter has had some long history so it cannot be said that the orders granted were ex parte. 18.As to the reasons advanced by Mr. Kimathi, he genuinely owned up to the mistake on his part. He has asked the Court not to allow his client to be punished on account of his lapses. 19.The Court notes that it has a duty to preserve the substratum of the case. This is to ensure that even as my brother Ado J labours to write a Ruling in the matter, he does not do so in vain. There was a good reason why the interim preservation order was made in the first place. 20.The Court has taken note of the statements from the Bar by Miss Wanjiku that the funds have been released. That her client no longer holds any funds. However, statements from the Bar do not carry any evidential weight in contested matters such as this. Had Counsel placed before the Court evidence by way of an Affidavit that funds had been released, the trajectory of this Application may have been different. As matters now stand and as the Court writes this Ruling, there is no evidence before it to show or demonstrate that the funds have been released. The Court has weighed the submissions from the Bar against the request for the substantive orders. In its considered opinion, the Court elects to preserve the funds, as there is no evidence that the funds have been released. The Court needs not say more on this. 21.The Court reminds itself that it has at times to walk a delicate path and maintain some balance. The Court also has to focus on the dispute as well as its trajectory through the Court process. This matter is pending a Ruling that will determine parties’ rights on 17.9.2026. Let the interim preservation orders be reinstated and preserved. 22.As to costs, the fair order is that costs be in the cause. Determination 23.The Applicant’s Notice of Motion dated 10th July, 2026 is allowed as follows;1.That the Honourable Court hereby reinstates and extends the interim preservation orders granted, on 13th January, 2026 in terms of prayer 2, 3, and 4 of the chamber summons application dated 8th January, 2026.2.That the Honourable Court Hereby orders that the interim preservation orders granted on 13th January, 2026 and subsequently extended by this Honourable Court on each mention date remains in force until the delivery of the Ruling on 17.9.2026 or any other date set by the Court.3.The costs of the application be costs in the cause. 24.It is so ordered. DATED, SIGNED AND DELIVERED AT MILIMANI THIS 16TH DAY OF JULY, 2026.NJOROGE BENJAMIN K.JUDGEIn the presence of:Mr. Kimathi for Applicants.Mr. Okullo for Respondent.Miss Wanjiku for the Interested Party.John Paul - Court Assistant.