[2010] KEHC 1792 (KLR)

[2010] KEHC 1792 (KLR)

The court found that although it was in doubt as to whether the applicant had established a prima facie case with a probability of success, it was clear that the applicant would suffer irreparable loss and injury if the injunction was not granted. The court reasoned that failure to grant the injunction would likely result in the destruction of the applicant's business and goodwill, rendering the arbitral process nugatory. The balance of convenience favored maintaining the status quo ante pending arbitration. The court therefore granted the mandatory injunction sought, ordering the respondent to restore the applicant's network short codes as an interim measure of protection under Section 7...

Citation
[2010] KEHC 1792 (KLR)
Parties
Plaintiff: Leopard Communications Ltd.; Defendant: Celtel Kenya Limited
Court
High Court
Court Station
High Court at Nairobi (Milimani Commercial Courts)
Jurisdiction
Kenya
Judgment Date
23 June 2010
Case Number
Miscellaneous Case 526 of 2010
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application for Mandatory Injunction Pending Arbitration
Outcome
mandatory injunction granted pending arbitration; costs in the cause
Judges
CM Njagi
Legal Topics
Interim Measures in Arbitration, Mandatory Injunctions, Breach of Contract, Termination of Contract, Irreparable Harm, Balance of Convenience
Source Language
English
Commercial and Corporate Civil Procedure Alternative Dispute Resolution Interim Measures in Arbitration Mandatory Injunctions Breach of Contract Termination of Contract Irreparable Harm +1 more

Case Brief

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Parties

Leopard Communications Ltd.

Plaintiff

Celtel Kenya Limited

Defendant

Procedural Posture

Miscellaneous Application / Ruling on Interlocutory Application for Mandatory Injunction Pending Arbitration

Legal Issues

  1. 1 Whether the applicant is entitled to a mandatory injunction to restore network short codes pending arbitration.
  2. 2 Whether damages are an adequate remedy for the applicant in the circumstances.
  3. 3 Whether special circumstances exist to justify the grant of a mandatory injunction as an interim measure of protection.

Ratio Decidendi

The court found that although it was in doubt as to whether the applicant had established a prima facie case with a probability of success, it was clear that the applicant would suffer irreparable loss and injury if the injunction was not granted. The court reasoned that failure to grant the injunction would likely result in the destruction of the applicant's business and goodwill, rendering the arbitral process nugatory. The balance of convenience favored maintaining the status quo ante pending arbitration. The court therefore granted the mandatory injunction sought, ordering the respondent to restore the applicant's network short codes as an interim measure of protection under Section 7...

Court Disposition

mandatory injunction granted pending arbitration; costs in the cause

Orders

  • The respondent shall forthwith reconnect and restore on its network short codes numbered 5604, 5605, 5627 and 5911 until the date of publication of an award by the sole arbitrator in the pending arbitral proceedings.
  • The applicant will meet any costs incidental to the restoration of the network services.