[2018] KEHC 5805 (KLR)
The court found that the plaintiff had satisfied the requirements for the grant of interim protection under Section 7 of the Arbitration Act, specifically in relation to apartment No. 312, which the defendant admitted had not been sold. The court held that preserving this apartment was necessary to ensure the...
Source-derived case information.
- Citation
- [2018] KEHC 5805 (KLR)
- Parties
- Plaintiff: China Zhongxing Construction Company Ltd; Defendant: Oakpark Apartments Mombasa Ltd
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 33 of 2017
- Procedural Posture
- Civil Suit / Interlocutory Ruling
- Outcome
- Interim protection order granted in respect of apartment No. 312, subject to conditions.
- Judges
- CA Otieno
- Legal Topics
- Arbitration Interim Measures, Injunctive Relief, Contractual Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
China Zhongxing Construction Company Ltd
Plaintiff
Oakpark Apartments Mombasa Ltd
Defendant
Procedural Posture
Civil Suit / Interlocutory Ruling
Legal Issues
- 1 Whether the plaintiff is entitled to interim protection orders under Section 7 of the Arbitration Act pending arbitration.
- 2 Whether the court should grant orders limited to apartment No. 312 as disclosed by the defendant.
- 3 What conditions should attach to the grant of interim orders in support of arbitration.
Ratio Decidendi
The court found that the plaintiff had satisfied the requirements for the grant of interim protection under Section 7 of the Arbitration Act, specifically in relation to apartment No. 312, which the defendant admitted had not been sold. The court held that preserving this apartment was necessary to ensure the effectiveness of the arbitral process and to prevent the arbitration from being rendered nugatory. However, the court limited the order to apartment No. 312 and imposed conditions that the plaintiff must commence arbitration within 30 days and that the process be concluded within six months, failing which the interim orders would lapse. The court exercised its discretion to balance...
Court Disposition
Interim protection order granted in respect of apartment No. 312, subject to conditions.
Orders
- Plaintiff granted interim protection order limited to apartment No. 312 pending arbitration.
- Plaintiff must commence arbitral proceedings within 30 days from the date of the ruling.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL SUIT NO. 33 OF 2017
CHINA ZHONGXING CONSTRUCTION COMPANY LTD.....PLAINTIFF
VERSUS
OAKPARK APARTMENTS MOMBASA LTD.........................DEFENDANT
R U L I N G
1. Having listened to the parties counsel and read the papers filed in entirety and being cognizant of the parameters and thresholds set and expected to be met under Section 7 of the Arbitration Act, I do grant to the plaintiff orders in terms of Prayer 3 limited to that apartment developed upon the suit property and known as apartment No. 312, disclosed by the defendant not to have been sold pending reference and conclusion of arbitration proceedings.
2. The Order is however granted upon terms that:-
· The plaintiff must commence the arbitral proceedings within 30 days from today and the process be concluded within 6 months from date of commencement to enable the arbitrator file an award in court on or before the 10/10/2018.
· It is further ordered that if there shall be default to commence the arbitration proceedings by the 9/4/2018, the orders hereby granted shall lapse and stand vacated.
· Costs be costs in the cause.
Dated and delivered at Mombasa this 8th day of March 2018.
P.J.O. OTIENO
JUDGE