[2018] KEHC 10265 (KLR)

[2018] KEHC 10265 (KLR)

The court held that once it has stayed proceedings and referred the dispute to arbitration, its jurisdiction to entertain further applications in the matter is extinguished unless the arbitration has broken down or unless intervention is expressly permitted by law. The court found that the arbitral tribunal was already seized of the dispute and that any further interim measures of protection or enforcement of such measures should be sought from the tribunal, not the court. The court emphasized the principle of party autonomy and the limited scope of judicial intervention in arbitration matters. The replying affidavit filed by the Plaintiffs in opposition to the preliminary objection was...

Citation
[2018] KEHC 10265 (KLR)
Parties
Plaintiff: Hydra Industrial Services Limited; Plaintiff: Al-Shoumouk Engineering Kinetice General Contracting LLC (suing through the 1st Plaintiff under a Master Consortium Agreement Dated 18th May, 2015); Defendant: Geothermal Development Corp; Interested Party: Kreditanstant Fur Wiederaufbau (KFW)
Court
High Court
Court Station
High Court at Nairobi (Milimani Commercial Courts)
Jurisdiction
Kenya
Judgment Date
2 November 2018
Case Number
Civil Suit 416 of 2016
Procedural Posture
Civil Suit / Ruling on Preliminary Objection to Notice of Motion for Injunctive Orders and Contempt
Outcome
preliminary objection upheld; court lacks jurisdiction to hear the application; costs awarded to defendant
Judges
GL Nzioka
Legal Topics
Arbitration Stay of Proceedings, Interim Measures of Protection, Party Autonomy, Court Jurisdiction in Arbitration, Injunctive Relief, Contempt of Court
Source Language
English
Commercial and Corporate Alternative Dispute Resolution Arbitration Stay of Proceedings Interim Measures of Protection Party Autonomy Court Jurisdiction in Arbitration Injunctive Relief Contempt of Court

Case Brief

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Parties

Hydra Industrial Services Limited

Plaintiff

Al-Shoumouk Engineering Kinetice General Contracting LLC (suing through the 1st Plaintiff under a Master Consortium Agreement Dated 18th May, 2015)

Plaintiff

Geothermal Development Corp

Defendant

Kreditanstant Fur Wiederaufbau (KFW)

Interested Party

Procedural Posture

Civil Suit / Ruling on Preliminary Objection to Notice of Motion for Injunctive Orders and Contempt

Legal Issues

  1. 1 Whether the High Court has jurisdiction to entertain an application for injunctive relief and contempt after staying proceedings and referring the dispute to arbitration.
  2. 2 Whether the court can grant further interim measures of protection once the arbitral tribunal is seized of the dispute.
  3. 3 Whether the filing of a replying affidavit in opposition to a preliminary objection is permissible.

Ratio Decidendi

The court held that once it has stayed proceedings and referred the dispute to arbitration, its jurisdiction to entertain further applications in the matter is extinguished unless the arbitration has broken down or unless intervention is expressly permitted by law. The court found that the arbitral tribunal was already seized of the dispute and that any further interim measures of protection or enforcement of such measures should be sought from the tribunal, not the court. The court emphasized the principle of party autonomy and the limited scope of judicial intervention in arbitration matters. The replying affidavit filed by the Plaintiffs in opposition to the preliminary objection was...

Court Disposition

preliminary objection upheld; court lacks jurisdiction to hear the application; costs awarded to defendant

Orders

  • The preliminary objection is upheld.
  • The notice of motion application dated 15th May 2017 is not to be heard as the court lacks jurisdiction.