https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4688

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAJIADO** **ELC MISC. E010 OF 2026** **BETWEEN** **DIGRO HOLDINGS AND CONSTRUCTION LIMITED ................................. APPLICANT** **AND** **JAPHETH NYARIACHA OMARI ........................................................... 1ST RESPONDENT** **LARVINIA NYANCHAMA ONDUKO ................................................... 2ND RESPONDENT** **RULING** **Introduction** 1. Coming up before this Court for determination contemporaneously is the Applicant’s Notice of Motion dated 11th February 2026, and the Respondents' Notice of Preliminary Objection dated 14th May 2026. 2. The Applicant's Notice of Motion is brought pursuant to Section 7 of the Arbitration Act, 1995, Order 40 Rules 1, 2, and 4, and Order 51 of the Civil Procedure Rules, alongside all other enabling provisions of the law. The Application principally seeks ‘interim measures of protection’, specifically praying for orders of injunction to restrain the Respondents, their agents, servants, or employees from forcefully evicting the Applicant from the project site situated on the property known as LR. Ngong/Ngong/94221. Furthermore, the Applicant seeks to injunct the Respondents from removing its equipment or materials, or in any manner interfering with its possession of and access to the site pending the hearing and determination of the application, and ultimately pending the referral and determination of the underlying dispute by arbitration. 3. The Application is premised on the several grounds set out on the face of the Motion and is further supported by the Affidavit of Samuel Njagu Nyambura, a Director of the Applicant company, sworn on the 11th day of February 2026. The Deponent avers that the parties entered into a Construction Contract dated 29th January 2024, which contains an arbitration clause (Clause 45), and that a bona fide dispute referable to arbitration has crystallized concerning the valuation of works executed, alleged suspension of works, and purported termination of the contract. The Applicant contends that unless the court intervenes to preserve the status quo, the intended arbitration proceedings will be rendered nugatory. 4. In a swift rejoinder to the Applicant's Motion, the Respondents filed a Notice of Preliminary Objection dated 14th May 2026. The Preliminary Objection is premised on points of law and fundamentally challenges the legal and procedural foundation of the Applicant's application. The core contention advanced by the Respondents is that the Application is fatally incompetent and incurably defective as it was commenced by way of a Miscellaneous application and a bare Notice of Motion. The Respondents argue that this mode of commencement violates the mandatory provisions of Rule 2 of the Arbitration Rules, 1997, and Order 3 Rule 1 of the Civil Procedure Rules, which necessitate that applications under Section 7 of the Arbitration Act be anchored in a substantive originating suit. 5. The Respondents further assert that in the absence of a substantive anchoring suit, the present proceedings lack a legal substratum and exist in a jurisdictional vacuum, rendering the reliefs sought a terminal nullity and an abuse of the court process. Consequently, the Respondents pray that the Notice of Motion dated 11th February 2026 be dismissed in its entirety with costs. **Directions** 1. Both the application and the preliminary objection were canvassed by way of written submissions, the submissions of which have been duly considered in the writing of this ruling. **Analysis and Determination** 1. I have carefully considered, contemporaneously, the Applicant's Notice of Motion dated 11th February 2026, the Respondents' Notice of Preliminary Objection dated 14th May 2026, the affidavits on record, the rival written submissions and the applicable law. Since the Preliminary Objection challenges the competence of the very proceedings through which the Applicant seeks interim measures of protection, while the Notice of Motion seeks substantive relief under Section 7 of the Arbitration Act, it is appropriate that both the application and the Preliminary objection be considered together in a single analytical framework. The determination of one inevitably informs the fate of the other. 2. The Respondents' Preliminary Objection is founded upon the contention that the Applicant's Motion is incurably defective because it has been instituted as a Miscellaneous Application rather than within a substantive suit. According to the Respondents, Rule 2 of the Arbitration Rules, 1997, read together with Order 3 Rule 1 of the Civil Procedure Rules, requires that an application under Section 7 of the Arbitration Act be anchored upon a substantive originating suit. Consequently, they argue that the Court lacks jurisdiction to entertain either the Motion or the proceedings generally. 3. The Applicant, on the other hand, maintains that the Court's jurisdiction is expressly conferred by Section 7 of the Arbitration Act, which permits a party to seek interim measures of protection before or during arbitral proceedings. It is submitted that the Miscellaneous Cause is merely the procedural vehicle through which the Court exercises its supervisory jurisdiction pending arbitration and that no substantive suit is required. 4. The issue before this Court therefore is not merely procedural. It concerns the proper construction of Section 7 of the Arbitration Act and whether the mode adopted by the Applicant is sufficient to invoke this Court's jurisdiction. 5. The law relating to preliminary objections is well settled. In ***Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696,*** Law JA stated: ***"A preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit."*** Sir Charles Newbold P added: ***"A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct."*** 1. The objection before the Court challenges the competency of the proceedings and the Court's jurisdiction. It therefore qualifies as a proper preliminary objection. 2. Having so found, I now turn to the substance of the objection alongside the Applicant's Motion. 3. Section 7(1) of the Arbitration Act provides 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."*** 1. The language employed by Parliament is significant. The jurisdiction is exercisable **before or during arbitral proceedings**, thereby acknowledging that arbitration may not necessarily have commenced for judicial intervention to be invoked. The statute deliberately creates a limited supervisory jurisdiction enabling the Court to preserve the subject matter pending the arbitral process. 2. Equally important is Section 10 of the Arbitration Act, which provides that: ***"Except as provided in this Act, no court shall intervene in matters governed by this Act."*** 1. The combined effect of Sections 7 and 10 of the Arbitration Act is that the Court's jurisdiction is exceptional, statutory limited and ancillary to arbitration. It is not an invitation to determine the substantive dispute, but merely to preserve the efficacy of the arbitral process. 2. The Respondents rely on Rule 2 of the Arbitration Rules, 1997, which provides that applications under Sections 6 and 7 shall be made "by summons in the suit." In my considered view, however, that provision in the rules cannot be construed in isolation from the parent statute. Procedural rules are intended to facilitate the implementation of statutory rights and cannot be interpreted in a manner that defeats the substantive jurisdiction expressly conferred by Parliament. 3. Indeed, if Rule 2 were interpreted to require every application under Section 7 to be preceded by an ordinary civil suit, the consequence would be to compel parties to commence substantive litigation notwithstanding their agreement to arbitration. Such an interpretation would fundamentally undermine both the purpose of arbitration and the legislative policy embodied in Sections 7 and 10 of the Arbitration Act. 4. The Court of Appeal in ***Safaricom Limited v Ocean View Beach Hotel Limited & 2 Others [2010] eKLR***, explained that the jurisdiction donated by Section 7 is intended solely to preserve the subject matter pending arbitration and that the Court should refrain from determining issues reserved for the arbitral tribunal. The Court emphasized that interim measures of protection are granted to aid arbitration rather than as part of ordinary civil litigation. 5. Similarly, the Supreme Court in ***Nyutu Agrovet Ltd v Airtel Networks Kenya Ltd & Another [2019] eKLR*,** reiterated that the Arbitration Act embodies the principles of party autonomy and minimal judicial intervention, and that courts should interpret the Act in a manner that promotes rather than frustrates arbitration. 6. This Court is also mindful of Article 159(2)(d) of the Constitution, which commands courts to administer justice without undue regard to procedural technicalities, as well as Sections 1A and 1B of the Civil Procedure Act, which enshrine the overriding objective of facilitating the just, expeditious and proportionate resolution of disputes. 7. Against this legal backdrop, I am unable to agree with the Respondents that the present proceedings are rendered incompetent merely because they were commenced as a Miscellaneous Application. Section 7 neither prescribes nor mandates the institution of a substantive suit. The jurisdiction invoked is statutory, special and ancillary to arbitration. The Miscellaneous Application merely provides the procedural avenue through which that limited jurisdiction is exercised. To hold otherwise would elevate form above substance and unnecessarily impede the arbitral process. 8. Having found that the Preliminary Objection is devoid of merit, it follows that the Applicant's Motion is properly before the Court. 9. The Court must therefore proceed to consider whether the Applicant has established a basis for the grant of interim measures of protection. 10. The principles governing issuance of reliefs under Section 7 are no longer in dispute. In ***Safaricom Limited v Ocean View Beach Hotel Limited & 2 Others [2010] eKLR***, the Court of Appeal held that in exercising jurisdiction under Section 7, the Court is concerned principally with preserving the subject matter of the arbitration, safeguarding the arbitral process, and ensuring that any eventual award is not rendered nugatory. The Court is not required to determine the merits of the parties' contractual dispute. 11. From the material placed before the Court, it is not disputed that the parties entered into a Construction Contract dated 29th January 2024 containing an arbitration agreement under Clause 45. It is equally apparent that disputes have arisen regarding the valuation of works, suspension of construction, alleged breaches of contract and termination of the contractual relationship. Those disputes plainly fall within the scope of the arbitration agreement and are matters reserved for the arbitral tribunal. 12. The Applicant contends that unless interim protection is granted, it faces imminent eviction from the project site together with the removal of its equipment and construction materials, thereby defeating both the arbitral process and any eventual award. The Respondents have not disputed the existence of the arbitration agreement; rather, their opposition is directed almost entirely at the procedural competency of the proceedings. 13. In the circumstances of this case, I am satisfied that there exists a genuine dispute capable of reference to arbitration and that the preservation of the status quo is necessary to safeguard the arbitral process. Should the Applicant be removed from the site and its equipment interfered with before the arbitral tribunal has had an opportunity to determine the parties' respective rights, the arbitration may well be rendered nugatory. The balance therefore tilts in favour of preserving the prevailing state of affairs pending the commencement and conclusion of arbitration proceedings. 14. Accordingly, having considered both the Notice of Motion dated 11th February 2026 and the Notice of Preliminary Objection dated 14th May 2026 contemporaneously, I make the following orders: 15. The Respondents' Notice of Preliminary Objection dated 14th May 2026 is hereby dismissed. 16. Pending the commencement, hearing and determination of the arbitral proceedings contemplated under Clause 45 of the Construction Contract dated 29th January 2024, an interim injunction is hereby issued restraining the Respondents, whether by themselves, their agents, servants or employees, from forcefully evicting the Applicant from the project site situated on **L.R. No. Ngong/Ngong/94221**, removing the Applicant's equipment or construction materials therefrom, or otherwise interfering with the Applicant's possession of and access to the site. 17. The parties shall, within **Forty Five (45) days** from the date hereof, take all necessary steps to commence the arbitral proceedings in accordance with their agreement, failing which either party shall be at liberty to apply. 18. The costs of both the Notice of Motion and the Preliminary Objection shall abide the outcome of the arbitral proceedings. It is so ordered. **Dated, Signed and Delivered at Kajiado Virtually this 21st Day of July 2026.** **M.D. MWANGI** **JUDGE** **In the virtual presence of:** Ms. Musembi h/b for Mr. Kaimenyi for the Applicant Ms. Nyandoro for the Respondents Court Assistant: Alex **M.D. MWANGI** **JUDGE**