https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6661

Digital Mara Media Limited v Kenya Airways PLC (Commercial Miscellaneous Application E945 of 2025) [2026] KEHC 6661 (KLR) (Commercial & Admiralty) (14 May 2026) (Ruling) Neutral citation: [2026] KEHC 6661 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Admiralty Commercial Miscellaneous Application E945 of 2025 PM Mulwa, J May 14, 2026 Between Digital Mara Media Limited Applicant and Kenya Airways Plc Respondent Ruling 1.Before Court for determination is the Applicant’s Notice of Motion dated 16th September 2025 brought under Sections 1A, 1B and 3A of the Civil Procedure Act, Order 39 Rule 7, Order 40 Rules 1, 3 and 4, and Order 51 Rule 1 of the Civil Procedure Rules, together with all other enabling provisions of the law. 2.The Applicant principally seeks the following:i.An interim injunctive and preservatory relief pending the hearing of the suit and the intended arbitral proceedings. In particular, the Applicant seeks orders restraining the Respondent from implementing the termination notice dated 21st July 2025, engaging third parties in relation to the advertising services reserved under the contract, interfering with the Applicant’s access to advertising spaces and advertisers, and from otherwise undermining the Applicant’s contractual rights under the Media Advertisement Contract.ii.Preservation of the contract pending arbitration, an order directing that revenues allegedly derived in breach of the agreement be held in escrow or trust, together with costs of the application. 3.The application is supported by the affidavit of Stephen Ayieko Odunga, the Applicant’s Managing Director, sworn on 16th September 2025. He deposes that the parties entered into a three-year Media Advertisement Contract dated 24th September 2024 through which the Applicant was granted exclusive rights to access, manage and monetize the Respondent’s designated advertising spaces and platforms. 4.The Applicant contends that, notwithstanding the exclusivity provisions under the agreement, the Respondent breached the contract by directly engaging advertisers and third-party agencies, thereby bypassing the Applicant and frustrating its ability to execute advertising mandates under the agreement. It is further deponed that the Respondent subsequently issued a termination notice dated 21st July 2025 purporting to terminate the agreement with effect from 19th September 2025, allegedly in breach of the contractual dispute resolution mechanisms. 5.According to the Applicant, it has already invoked the arbitration clause and now seeks interim protective relief under Section 7 of the Arbitration Act pending the intended arbitral proceedings. The Applicant avers that the Respondent’s conduct has occasioned it substantial financial loss, said to exceed Kshs. 300 million, loss of goodwill with advertisers and business partners, operational disruption and reputational harm. It is contended that unless the orders sought are granted, the Applicant risks irreparable injury incapable of adequate compensation by damages. 6.The Respondent opposes the application through the Replying Affidavit sworn on 29th September 2025 by Julius Thairu, its Chief Officer Commercial. The Respondent maintains that the agreement expressly permitted termination either for cause or without cause under Clause 16 of the contract. It is averred that pursuant to Clause 16(b), either party was entitled to terminate the agreement upon issuance of a sixty-day notice and that the Respondent lawfully exercised that contractual right through the notice dated 21st July 2025, terminating the agreement effective 19th September 2025. 7.The Respondent contends that the Applicant has erroneously characterized the termination as unlawful, whereas the only contractual requirement was the issuance of a sixty-day notice, which requirement was duly complied with. It is further deponed that Clause 16(c) preserved any accrued rights or claims for damages and therefore the Applicant’s remedy, if any, lies in damages rather than injunctive relief. 8.The Respondent further avers that no arbitral proceedings have in fact commenced since the Applicant has neither sought appointment of an arbitrator nor otherwise invoked the arbitral process under the agreement. It is also contended that the Applicant is guilty of laches, having waited until the very date the termination took effect before filing the present application. According to the Respondent, by the time interim orders were granted, the agreement had already terminated, with the effect that the Court effectively compelled continuation of a commercial relationship that had already come to an end. 9.The Respondent maintains that the dispute is purely contractual in nature and that any alleged loss is quantifiable and compensable by damages. It argues that the Applicant has neither particularized the alleged losses nor demonstrated that damages would be an inadequate remedy. The Respondent further avers that the relationship between the parties has irretrievably broken down and that compelling the parties to continue working together would be commercially impractical and contrary to the principle of freedom of contract. 10.The application was heard by way of written submissions. The Plaintiff submissions are dated 14th October 2025, while the Respondent’s submissions are dated 2nd October 2025. Applicant’s submissions 11.The Applicant argued that the Court’s intervention under Section 7 of the Arbitration Act was necessary to preserve the substratum of the dispute pending arbitration. The Applicant submitted that the parties had entered into a three-year Media Advertisement Contract dated 24th September 2024 under which the Applicant was granted exclusive rights to access, manage and commercialize the Respondent’s designated advertising spaces and platforms. It was contended that the exclusivity provisions formed the core of the parties’ bargain and prohibited the Respondent from engaging third parties or dealing directly with advertisers without the Applicant’s consent. 12.The Applicant submitted that despite the exclusivity arrangements, the Respondent breached the Agreement by directly engaging advertisers and third-party agencies, bypassing the Applicant and depriving it of advertising revenue and business opportunities reserved under the contract. It was further argued that the Respondent frustrated the Applicant’s performance by engaging third parties in advertising campaigns and directly negotiating with advertisers, contrary to the exclusivity clause. 13.The Applicant further contended that the Respondent’s termination notice dated 21st July 2025 was not a bona fide exercise of contractual rights but a calculated attempt to evade liability for prior breaches and frustrate the agreed arbitral process. According to the Applicant, although the Agreement permitted termination without cause upon issuance of notice, such power could not be exercised in bad faith or in a manner intended to defeat accrued contractual rights. 14.The Applicant relied on Section 7 of the Arbitration Act and authorities including Safaricom Limited v Ocean View Beach Hotel Limited & 2 Others [2010] eKLR; Seven Twenty Investments Kenya Limited v Sandhoe Investment Kenya Limited [2013] eKLR and Isolux Ingeniera S.A v Kenya Electricity Transmission Company Limited & 5 Others [2017] eKLR. It was submitted that the purpose of the orders sought was not to determine the merits of the dispute but to preserve the subject matter and maintain the status quo pending constitution of the arbitral tribunal. 15.The Applicant also submitted that the exclusivity clause was lawfully negotiated between sophisticated commercial parties and could not be unilaterally disregarded by the Respondent. Reliance was placed on Margaret Njeri Muiruri v Bank of Baroda (Kenya) Limited [2014] eKLR, Ogutu v Anjichi [2025] KEHC 3875 (KLR), and Heineken East Africa Import Company Limited & Another v Maxam Limited [2024] KECA 625 (KLR) for the principle that courts do not rewrite contracts and that freely negotiated exclusivity clauses are enforceable unless shown to be unlawful or contrary to public policy. 16.The Applicant further maintained that it had established a prima facie case and stood to suffer irreparable harm incapable of compensation by damages. It was argued that the Respondent’s continued breaches had occasioned substantial financial loss, diversion of revenue, loss of goodwill, reputational harm and erosion of investor confidence. The Applicant additionally questioned the Respondent’s ability to satisfy any future award of damages, citing its alleged financial instability and reliance on government bailouts. 17.The Applicant submitted that the balance of convenience favoured preservation of the status quo pending arbitration, contending that the orders sought were necessary to preserve the integrity of the arbitral process and prevent the dispute from being rendered nugatory before constitution of the arbitral tribunal. The Court was therefore urged to grant the interim measures sought pending arbitration. Respondent’s submissions 18.The Respondent contends that the Applicant had failed to satisfy the threshold for the grant of interim measures of protection under Section 7 of the Arbitration Act. It was submitted that the parties’ Media Advertisement Contract expressly permitted termination without cause upon issuance of a sixty-day notice under Clause 16(b), and that the Respondent lawfully exercised that contractual right through the notice dated 21st July 2025, which took effect on 19th September 2025. According to the Respondent, by the time the application was filed and interim orders issued, the Agreement had already lapsed and there was therefore no subsisting contract capable of preservation. 19.The Respondent further submitted that the Applicant’s grievances relate to alleged breaches of the exclusivity provisions of the Agreement and claims for financial compensation, all of which survive termination by virtue of Clause 16(c) of the Agreement. It was therefore argued that the intended arbitral proceedings were not threatened by termination of the contract, since the Applicant remained at liberty to pursue damages and other accrued remedies in arbitration. 20.The Respondent also argued that the Applicant was in effect inviting the Court to rewrite the parties’ contract by introducing conditions not contained in Clause 16(b), yet the clause unequivocally permitted either party to terminate the Agreement without cause upon issuance of notice. 21.On delay, the Respondent submitted that the Applicant waited until the Agreement had already lapsed before approaching the Court and was therefore guilty of laches. It was further contended that the orders sought were in substance mandatory injunctive orders compelling continuation of a commercial relationship that had already terminated, thereby attracting a higher threshold than that applicable to ordinary interlocutory injunctions. 22.The Respondent maintained that the Applicant had failed to establish irreparable harm, since the alleged losses were purely financial, quantifiable and compensable by damages. It was submitted that the balance of convenience favoured refusal of the orders sought because the Applicant could still pursue damages in arbitration whereas the Respondent would otherwise be compelled to continue a strained commercial relationship despite having lawfully terminated the Agreement. The Court was therefore urged to dismiss the application with costs. Analysis and determination 23.I have considered the application, the affidavits sworn in support thereof and in opposition thereto, together with the rival written submissions and authorities cited by counsel. 24.The application is brought principally under Section 7 of the Arbitration Act. The Applicant seeks interim measures of protection pending the commencement and determination of arbitral proceedings arising from the Media Advertisement Contract dated 24th September 2024, entered into between the parties. 25.The Applicant’s case is that the Respondent breached the exclusivity provisions of the Agreement by directly engaging advertisers and third parties in relation to advertising services reserved to the Applicant under the contract. The Applicant further contends that the Respondent’s termination notice dated 21st July 2025 was issued in bad faith and was intended to defeat the arbitral process and accrued contractual rights. 26.The Respondent, on its part, maintains that the Agreement expressly permitted termination without cause upon issuance of a sixty-day notice under Clause 16(b), and that the termination notice issued on 21st July 2025 was lawful and took effect on 19th September 2025. 27.The jurisdiction of this Court to grant interim measures of protection pending arbitration is not in doubt. Section 7(1) of the Arbitration Act provides as follows: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. 28.The principles governing the grant of interim measures under Section 7 of the Arbitration Act are settled. The Court ought to consider: whether there exists an arbitration agreement; whether the subject matter of the arbitration is under threat; the appropriate measure of protection after assessment of the merits of the application; and the duration for which the measure should subsist so as not to encroach upon the arbitral tribunal’s mandate. (See Safaricom Limited v Ocean View Beach Hotel Limited & 2 Others [2010] eKLR). 29.It is common ground that the Agreement between the parties contains an arbitration clause. The dispute, therefore, turns on whether the Applicant has demonstrated that the subject matter of the intended arbitration is under threat and whether the orders sought are necessary to preserve the arbitral process. 30.I have carefully considered the Agreement as presented before the Court. Clause 16(b) thereof expressly entitled either party to terminate the Agreement without cause upon issuance of a sixty-day notice. The Applicant does not dispute receipt of the notice dated 21st July 2025. Its complaint, rather, is that the termination was actuated by bad faith and intended to defeat accrued contractual rights arising from the alleged breach of the exclusivity provisions. 31.At this interlocutory stage, the Court must resist the invitation to make definitive findings on whether the Respondent breached the exclusivity clauses of the Agreement or whether the termination notice was actuated by bad faith. Those are substantive issues falling squarely within the province of the arbitral tribunal. The Court’s role under Section 7 is limited to preservation and not determination of the merits of the dispute. 32.The Applicant has urged the Court to preserve the Agreement and restrain the Respondent from implementing the termination notice. In effect, the Applicant seeks orders compelling continuation of a commercial relationship notwithstanding the Respondent’s exercise of its contractual right of termination. 33.In my view, the orders sought go beyond preservation of the subject matter and verge into enforcement of the contract itself. Courts do not rewrite contracts for parties. Parties are bound by the terms they freely negotiated unless illegality, fraud, coercion or other vitiating factors are established. (See National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & Another [2001] eKLR). 34.The Agreement herein expressly contemplated termination without cause upon notice. Whether the Respondent exercised that right in breach of other contractual obligations is a matter that remains open for determination before the arbitral tribunal. However, this Court cannot, under the guise of interim protection, compel parties to continue in a contractual relationship that one party has expressly terminated pursuant to the terms of the Agreement. 35.I further agree with the Respondent that the Applicant’s claim is substantially one for damages arising from the alleged breach of exclusivity provisions. Indeed, the Applicant itself quantified its alleged losses at over Kshs. 300 million and additionally sought preservation of revenues allegedly generated in breach of the contract. 36.The law is settled that where damages constitute an adequate remedy, injunctive relief ought not to issue. The losses alleged by the Applicant are principally financial and commercial in nature. They relate to lost advertising revenue, loss of commissions, diverted business opportunities and reputational injury arising from the alleged breaches. Such claims are quantifiable and are capable of determination by the arbitral tribunal. I am therefore not persuaded that the Applicant has demonstrated irreparable harm incapable of compensation by damages. 37.The Court must also bear in mind that the interim orders sought are in substance mandatory in nature, as they seek to compel the Respondent to continue honouring a commercial arrangement that has already been terminated. The threshold for grant of a mandatory injunction at an interlocutory stage is considerably higher and a mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances and only in clear cases. (See Locabail International Finance Ltd v Agroexport & Others [1986] 1 All ER 901; [1986] 1 WLR 657). 38.I do not find that this is one of those clearest of cases warranting the grant of mandatory interim relief. To grant the orders sought would effectively amount to compelling continuation of a strained commercial relationship pending arbitration, notwithstanding the express termination clause agreed upon by the parties. 39.On the balance of convenience, I am persuaded that it tilts in favour of allowing the parties to proceed to arbitration where the substantive disputes concerning alleged breaches, exclusivity rights and damages may be fully ventilated. The arbitral process would not be rendered nugatory merely because the Agreement has been terminated. Clause 16(c), as noted by the Respondent, expressly preserved accrued rights and remedies notwithstanding termination. 40.Ultimately, the Court’s duty under Section 7 of the Arbitration Act is to support, and not supplant, the arbitral process. Preservation orders ought not to be deployed in a manner that effectively determines the dispute or rewrites the contractual bargain between parties. 41.In the premises, I am not satisfied that the Applicant has met the threshold for the grant of the interim measures of protection sought. 42.Accordingly, the Notice of Motion dated 16th September 2025 is hereby dismissed. Given the nature of the dispute, I make no orders as to costs.It is so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 14TH DAY OF MAY 2026.P.M. MULWAJUDGEIn the presence of:Mr. Karoki for ApplicantMs. Nimo for RespondentCourt Assistant: Lispa