[2014] KEHC 1984 (KLR)

[2014] KEHC 1984 (KLR)

The court held that while Section 7 of the Arbitration Act allows for interim measures of protection, such relief is only available where there is a valid arbitration agreement and a real, imminent threat to the subject matter of the arbitration. The court found that the dispute over the validity of the agreement was a matter for the arbitral tribunal, not the court, in line with the principle of separability and non-intervention. The applicant failed to demonstrate any urgent threat to the subject matter or that the agreement would be wasted or dissipated absent an injunction. The procurement process for a new contract was lengthy and no evidence was provided of imminent action by the...

Citation
[2014] KEHC 1984 (KLR)
Parties
Applicant: Inforcard Holdings Limited; Respondent: The Hon. Attorney General; Respondent: Permanent Secretary, Ministry of Transport
Court
High Court
Court Station
High Court at Nairobi (Milimani Commercial Courts)
Jurisdiction
Kenya
Judgment Date
6 November 2014
Case Number
Civil Case 361 of 2012
Procedural Posture
Miscellaneous Application / Ruling on Application for Interim Measure of Protection Pending Arbitration
Outcome
application dismissed with costs to the respondents
Judges
F Gikonyo
Legal Topics
Arbitration Agreements, Interim Measures, Contract Enforcement, Separability Doctrine
Source Language
English
Commercial and Corporate Alternative Dispute Resolution Arbitration Agreements Interim Measures Contract Enforcement Separability Doctrine

Case Brief

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Parties

Inforcard Holdings Limited

Applicant

The Hon. Attorney General

Respondent

Permanent Secretary, Ministry of Transport

Respondent

Procedural Posture

Miscellaneous Application / Ruling on Application for Interim Measure of Protection Pending Arbitration

Legal Issues

  1. 1 Whether the undated Replying Affidavit is admissible as evidence.
  2. 2 Whether the applicant has established sufficient cause for the grant of interim measure of protection under Section 7 of the Arbitration Act pending arbitration.
  3. 3 Whether the court should intervene to preserve the subject matter of the arbitration by way of injunction.

Ratio Decidendi

The court held that while Section 7 of the Arbitration Act allows for interim measures of protection, such relief is only available where there is a valid arbitration agreement and a real, imminent threat to the subject matter of the arbitration. The court found that the dispute over the validity of the agreement was a matter for the arbitral tribunal, not the court, in line with the principle of separability and non-intervention. The applicant failed to demonstrate any urgent threat to the subject matter or that the agreement would be wasted or dissipated absent an injunction. The procurement process for a new contract was lengthy and no evidence was provided of imminent action by the...

Court Disposition

application dismissed with costs to the respondents

Orders

  • The application for interim measure of protection is dismissed.
  • Costs awarded to the Respondents.