[2019] KEHC 1336 (KLR)

[2019] KEHC 1336 (KLR)

The court found that the applicant demonstrated a real threat to the subject matter of the arbitration—the incomplete building—due to exposure to the elements and risk of financial loss. The existence of an arbitration agreement was not in dispute, and both parties were prepared to proceed to arbitration. The court held that interim measures of protection were necessary to preserve the property and allow the applicant to mitigate losses, as the contract had already been terminated and no works were ongoing. The respondent's claim to a lien over the site was rejected as unsupported by law in building contracts. The court concluded that the appropriate interim relief was to restrain the...

Citation
[2019] KEHC 1336 (KLR)
Parties
Plaintiff: Globe Developers Limited; Defendant: Mark Properties Limited
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
14 October 2019
Case Number
Environment & Land Case 273 of 2019
Procedural Posture
Chamber Summons / Ruling on Interim Measures Pending Arbitration
Outcome
Application allowed; interim measures of protection granted; matter referred to arbitration; costs to respondent.
Legal Topics
Building Contracts, Interim Measures, Arbitration Clauses, Termination of Contracts, Site Possession, Contractual Disputes
Source Language
English
Land and Property Commercial and Corporate Building Contracts Interim Measures Arbitration Clauses Termination of Contracts Site Possession Contractual Disputes

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 5 Party arguments 2 Amounts and remedies 6
Sign in to unlock

Parties

Globe Developers Limited

Plaintiff

Mark Properties Limited

Defendant

Procedural Posture

Chamber Summons / Ruling on Interim Measures Pending Arbitration

Legal Issues

  1. 1 Whether the applicant is entitled to interim measures of protection pending arbitration.
  2. 2 Whether the subject matter of the arbitration (the construction site and incomplete building) is under threat warranting court intervention.
  3. 3 Whether the respondent is entitled to retain possession of the site as a lien for unpaid dues.

Ratio Decidendi

The court found that the applicant demonstrated a real threat to the subject matter of the arbitration—the incomplete building—due to exposure to the elements and risk of financial loss. The existence of an arbitration agreement was not in dispute, and both parties were prepared to proceed to arbitration. The court held that interim measures of protection were necessary to preserve the property and allow the applicant to mitigate losses, as the contract had already been terminated and no works were ongoing. The respondent's claim to a lien over the site was rejected as unsupported by law in building contracts. The court concluded that the appropriate interim relief was to restrain the...

Court Disposition

Application allowed; interim measures of protection granted; matter referred to arbitration; costs to respondent.

Orders

  • The defendant, its servants, agents or otherwise are restrained from interfering with the plaintiff’s possession and construction on LR 209/4904 Riverside Drive pending arbitration.
  • The Officer in Charge of Kileleshwa Police Station to enforce compliance and keep the peace.