Louis & another v Duchess Park Development Company Ltd & another [2026] KEHC 13672 (KLR)

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REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI COUNTY

MILIMANI LAW COURTS

COMMERCIAL AND TAX DIVISION HCCOMMMISC/E1215/2025 ROSEVEL PIERRE LOUIS………………………………………….............1ST APPLICANT FRANCINE MWINJA BAHAYA…………………………………................2ND APPLICANT

VERSUS

DUCHESS

PARK

DEVELOPMENT

COMPANY LIMITED…..............1ST

RESPONDENT I & M BANK KENYA LIMITED……………………………….................2ND

RESPONDENT

RULING 1. By my Ruling delivered in this matter on 14/08/2026 on a Preliminary Objection, I held, made orders, and gave directions as follows: “Final Orders 26. For the above reasons, the Preliminary Objection partially succeeds, only to the following extent: i) The objection that the instant Application dated 30/10/2025 falls entirely within the exclusive jurisdiction of the Environment and Land Court (ELC) is dismissed. ii) The objection that this Court lacks jurisdiction by reason of the Arbitration agreement, under the doctrine of “exhaustion” of remedies, to grant protective orders of injunction pending Arbitration is dismissed. Prayer 2(a) of the Application is accordingly found to be properly before this Court. ii) The objection that prayers 2(b), (c), (d), and also prayers 3, 4 and 5 of the Application offend the doctrine of “exhaustion” of remedies is however upheld as the orders sought under those prayers, are of the nature that is exclusively reserved for determination in the Arbitration. The said prayers are consequently struck out. Milimani HCCOMMMISC/E1215/2025 Page 2 of 10 iv) The Court shall now proceed to determine only the remaining Prayer 2(a) of the Application. v) Costs of the Preliminary Objection shall be in the Cause.” 2. In the same Ruling, I recounted the background of the dispute, and of the said Application and reproduced the prayers made therein, as

follows: “2. The Applicants commenced these proceedings by way of the Notice of Motion dated 30/10/2025 filed through Messrs MAK & Partners Advocates. The Motion, defying basic rules of proper drafting of pleadings, is supported by an unnecessarily very lengthy, repetitive, voluminous and verbose list of up to 26 grounds. With a little bit of brevity, the grounds could have been easily reduced to not more than 5 at most. Be that as it may, the Application is brought under, inter alia, Section 7 of the Arbitration Act, and seeks orders as follows: 1. [................] spent 2. THAT pending the inter partes hearing and determination of this suit and the Arbitration proceedings, the Honorable Court be pleased to issue: a) An interim Injunction restraining the 1st and 2nd Respondents whether by themselves, their agents, employees and/or servants or any person claiming through them from selling, alienating, or dealing in any manner whatsoever with all that property known as Land Reference Number 209/5990/13 Grant Number 18295/9. b) An order for Specific performance of the Lease Agreement dated 29th December 2017. c) A declaration that the 1st Respondent should procure the release of the Partial Discharge of Charge and registration of the Sub-lease in favour of the Applicants as per the terms of the Lease within 14 days upon service of the order upon it. d) An order compelling the

2nd Respondent to immediately and unconditionally deliver to the Applicants, the signed Partial Discharge of Charge and all accompanying documents for registration of the Sub- lease in the names of the Applicants. Milimani HCCOMMMISC/E1215/2025 Page 3 of 10 3. THAT in the alternative to (a), (b), (c) and (d) above, restitution of the Lease Premium plus interest from December 2017, additional costs, stamp duty and interest on the above at Court rates until payment in full 4. THAT this Honourable Court awards the Applicants damages to be ascertained by the Court for the delayed discharge of Charge and registration of the Sub-Lease spanning over 7 years.

5. THAT this Honourable Court be pleased to give any such other of further order(s) as it may deem fit.

6. THAT the costs of this Application be borne by the Respondents.” 3. The rest of the prayers having been struck out as sated in the Ruling, only prayer 2(a) now remains for determination, and is thus, the subject of this Ruling.

4. I also recounted the contents of the Supporting Affidavit to the Application as follows: “3. The Application is supported by the Affidavit sworn by the 1st Applicant, Rosevel Pierre Louis, who basically deponed that the Applicants (as purchasers) and the 1st Respondent (as vendor) are parties to an Agreement for Lease dated 29/12/2017 in respect of the property described as Apartment No. C12, Duchess Park, located on Land Reference No. 209/5990/13, for a Lease Premium of Kshs 27,500,000/-, which he claims that the Applicants have paid in full. He deponed that despite this, the 1st Respondent has failed to submit the documents for registration, blaming the 2nd Respondent, its financier, for failing to release a Partial Discharge of Charge over the Apartment. He deponed that the Lease contains a tiered dispute resolution mechanism in that Clause 7.15 requires disputes to be first resolved by consultation and, failing that, by Arbitration under Clause 7.16, which nonetheless reserves to either party the right to “seek preliminary injunctive relief or interim or conservatory measures from a court in Kenya of competent jurisdiction pending the final decision or award of the arbitrator.” He averred further in view thereof, they declared a dispute in October 2022 and, following unsuccessful consultations, commenced arbitral proceedings culminating in the filing of a Statement of

Claim on 4/12/2023 but the arbitral proceedings has not proceeded to any meaningful extent to date and has stalled because the 1st Respondent did not file its Statement of Milimani HCCOMMMISC/E1215/2025 Page 4 of 10 Defence within the timelines prescribed by the Arbitrator, did not appear before the Arbitrator, and also refused to pay its part of the deposit requested by the Arbitrator.” 5. I also recited the 1st Respondent’s Replying Affidavit in the following terms: “4. The 1st Respondent has opposed the Application by way of the Replying Affidavit filed through Messrs T.N. Ogwoka & Osili Advocates, and sworn on 27/01/2026 by one Daniel Ojijo, who introduced himself as the 1st Respondent’s Managing Director. Mr. Ojijo deponed basically, that the Application has been overtaken by events since the Partial Discharge has since been released, that prayer 2(a) falls within the jurisdiction of the Environment and Land Court (ELC), and that the remaining prayers seek final orders at interlocutory stage, which orders, in any event, only the Arbitrator, not this Court, may grant, the parties having agreed on Arbitration as the choice of forum for resolving their disputes. He thus described the Application as offending the doctrine of “exhaustion”, and that even on merits, the Application should be refused since the subject matter is under no threat.” 6. As observed in the Ruling, there is no indication that the 2nd Respondent has ever participated in the matter before this Court.

7. Be that as it may, with the Preliminary Objection now disposed of, I now proceed to determine prayer 2(a) of the Application, the only remaining prayer of the Application. Determination 8. The single issue now remaining for determination in this matter is therefore’ “whether pending the hearing and determination of the ongoing Arbitration proceedings between the parties, an interim injunction should be issued restraining the Respondents from selling, or alienating the property known as Land Reference Number 209/5990/13 Grant Number 18295/9.” 9. In answering the above issue, I observe that there is no dispute that Clause 7.15 of the Agreement for Lease dated 29/11/2017, the subject of this matter, stipulates that disputes arising therefrom, where consultations fail, are to be referred to Arbitration for resolution. There is also no dispute that pursuant thereto, arbitration proceedings were indeed initiated sometime in late 2023 before Edward W.F. Luke II as the sole Arbitrator, with the Applicants filing the Statement of Claim dated 4/12/2023. It is however apparent that to Milimani HCCOMMMISC/E1215/2025 Page 5 of 10 date, about 3 years later, the Arbitration is yet to achieve meaningful progress by reason of what the Applicants basically feels to be “delaying tactics” successfully employed by the Respondent.

10. Regarding the orders of injunction that the Applicant now seeks under prayer 2(a), as I observed in the earlier Ruling, Section 7 of the Arbitration Act, 1995 provides as follows: “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.” 11. As I further pointed out in the Ruling, Section 7 is therefore merely intended to assist in preserving the subject matter of Arbitration without at all straying into also determining the merits of the dispute. It is under this recognition that I ruled that the doctrine of “exhaustion” of remedies does not oust the jurisdiction of the Court under Section 7 to issue an interim protective injunction pending Arbitration.

12. I also cited the parties' own Agreement dated 29/12/2017, which in Clause 7.16 expressly reserves to either party the right to “seek preliminary injunctive relief or interim or conservatory measures from a Court in Kenya of competent jurisdiction pending the final decision or award of the arbitrator”, even as they pursue dispute resolution by way of the contractually chosen mode of Arbitration. Far from ousting the jurisdiction of this Court therefore, the contract, read together with Section 7 aforesaid, expressly preserves jurisdiction of the Court for that limited, protective purpose.

13. As I further observed in said Ruling however, and as observed by Nyamu JA in the Court of Appeal case of Safaricom Limited v Ocean View Beach Hotel Limited & 2 Others, [2010] KECA 346 (KLR), a Court handling an Application under Section 7 should not make orders which undermine the arbitration or its outcome. Thus, “a Court of law when asked to issue interim measures of protection must always be reluctant to make a decision that would risk prejudicing the outcome of the arbitration.” In construing Section 7 therefore, the Court’s role is narrow, as it is only meant to safeguard the subject matter, not to determine the parties’ substantive rights or liabilities. To do so would be a usurpation of the Arbitral jurisdiction.

14. Nyamu JA in the Safaricom case (supra), described the range or extent of reliefs that the Court, when dealing with an Application under Section 7 can grant as follows: Milimani HCCOMMMISC/E1215/2025 Page 6 of 10 “Interim measures of protection in arbitration take different forms, and it would be unwise to regard the categories of interim measures as being in any sense closed (say restricted to injunctions, for example), and what is suitable must turn or depend on the facts of each case before the court or the tribunal - such interim measures include measures relating to preservation of evidence, measures aimed at preserving the status quo, measures intended to provide security for costs, and injunctions ………………………………..” 15. Nyamu J, in the Safaricom case (supra), however guided that in dealing with an Application under Section 7 of the Arbitration Act, unlike in instances of handling ordinary Applications for interlocutory injunctions under Order 40 of the Civil Procedure Rules, the principles adopted in the case of of Giella –vs-Cassman Brown and Company Limited, Civil Appeal No. 51 of 1972 are inapplicable. The Judge thus guided that applications under Section 7 of the Arbitration Act are predicated on the United Nations Commission on International Trade Law (UNCITRAL)-modelled interim protection, distinct from the equity-based Giella tests. The Judge expressed himself in

the following terms: “By determining the matters on the basis of the GIELLA principles the superior court failed to appreciate what interim measures of protection entail in terms of arbitration law, during or before the commencement of an arbitration. It may be necessary for an arbitral tribunal or a national court to issue orders intended to preserve evidence, to protect assets, or in some other way to maintain the status quo pending the outcome of the arbitration proceedings themselves. ............. Whatever their description however, they are intended in principle to operate as “holding” orders, pending the outcome of the arbitral proceedings. The making of interim measures was never intended to anticipate litigation.” 16. Nyamu JA then listed the principles that the Court should apply when dealing with an Application under Section 7, in the following terms: “………. Under our system of the law on arbitration, the essentials which the court must take into account before issuing the interim measures of protection are:” 1. The existence of an arbitration agreement.

2. Whether the subject matter of arbitration is under threat. Milimani HCCOMMMISC/E1215/2025 Page 7 of 10 3. In the special circumstances, which is the appropriate measure of protection after an assessment of the merits of the application?

4. For what period must the measure be given, especially if requested before the commencement of the arbitration, so as to avoid encroaching on the tribunal's decision-making power as intended by the parties?” 17. Regarding the 1st test, in this case, there is no dispute that the Agreement entered into by the parties indeed contains an Arbitration clause expressly permitting recourse to Court for interim measures. As correctly pointed out by Ado J, in the case of My Spectrum Asset Management Kenya Limited v Two Rivers Lifestyle Centre Limited & another [2026] KEHC 4170 (KLR), while citing the Safaricom case (supra), “once the Court finds that an Arbitration agreement exists, the primary inquiry becomes whether the subject matter is in danger, and if so, whether the Court must grant appropriate protection”.

18. Regarding the 2nd and 3rd tests, namely, whether the subject matter is “under threat”, and whether “an appropriate measure of protection” should be issued, there is no dispute that the parties entered into the Agreement for Lease dated 29/12/2017 by which the Applicants were to purchase the Apartment C12 from the 1st Respondent at the sum of Kshs 27,500,000/-. The 1st Respondent has not disputed the Applicants’ contention that they have paid that amount in full but the 1st Respondent is yet to submit the documents for registration, blaming the 2nd Respondent, its financier, for failing to release a Partial Discharge of Charge over the property. I also understand that, to its credit, the 1st Respondent did grant the Applicant full possession of the Apartment. It is also apparent that in accordance with the Arbitration clause, the Applicants declared a dispute in October 2022 and, following unsuccessful consultations, arbitral proceedings were indeed commenced culminating into the filing of the Statement of Claim dated 4/12/2023. As aforesaid however, the arbitral proceedings has not proceeded to a meaningful extent to date and is said to have basically “stalled” because, according to the Applicants, the 1st Respondent has not been co- operating as it failed to, inter alia, file its Statement of Defence within the timelines prescribed by the Arbitrator, did not promptly appear before the Arbitrator, and also failed to pay its part of the arbitral deposit.

19. In view of the above, it is understandable that the Applicants are apprehensive that they may suffer irreparable prejudice or damage as they do not have the property in their names Milimani HCCOMMMISC/E1215/2025 Page 8 of 10 despite having fully paid for it. In other words, although the Applicants may have taken physical possession of the Apartment, they have no way of ensuring that the investment is legally protected and secured from threats over ownership claims by third parties, and are also exposed to the possibility of being subjected to adverse dealings or “monkey-games” over the property by the 1st Respondent, including even resale thereof. The 1st Respondent’s alleged conduct of “frustrating the arbitral tribunal” has also not helped matters since, if true, the motive is not known to the Applicant, but does not serve to prevent suspicions of “bad- intentions”. Consequently, I am therefore satisfied that the subject matter under Arbitration is “under threat”, and merits issuance of “an appropriate measure of protection” to secure the Applicant’s unassailable rights over the property even as they await conclusion of the Arbitration.

20. In respect to the 4th test, namely, “for what period must the measure be given”, I am alive to the principle that to avoid usurping the Arbitral tribunal’s jurisdiction, the Court granting Section 7 “protective measures” is encouraged to only issue time-bound orders. In this case however, the Arbitration was already initiated about 3 years ago albeit with not much to show for reasons that the Applicants attribute to the conduct of the 1st Respondent targeted at “frustrating” the arbitral process. Considering this, I find it best to let the orders remain in force until determination of the Arbitration. As no blame has been attributed to the Applicants, giving short or “time-bound” “protective orders” will only serve to unjustly expose the Applicants, the “innocent” parties, to the very risks the orders are being issued to protect. There would no justification in subjecting the Applicants to having to run back to Court seeking extension of the orders every time they lapse yet they genuinely appear to be innocent parties being unfairly treated.

21. I however observe that while the Applicants’ claim or interest is only on the Apartment C1, the injunction they are seeking under prayer 2(a) is crafted to extend to the entire mother title on which I believe the Apartment C1 is only one unit among many others. Since there is no explanation why the injunction should extend to the entire mother title, to avoid stifle the rights of uninvolved third-party purchasers, I find such all-inclusive prayer to be misconceived.

22. As I conclude, I reiterate the statement I made in my said earlier Ruling that: “25. Before I conclude, I observe that the Applicants’ Counsel seems to have “thrown his hands up the air in despair” or surrendered seemingly erroneously believing that he no longer has any options in the Arbitration simply because the 1st Milimani HCCOMMMISC/E1215/2025 Page 9 of 10 Respondent has allegedly “deliberately” “frustrated” the arbitral process causing it to stall. Far from it, the drafters of the Arbitration Act being aware of the possibility of difficult parties who may come all out to frustrate the arbitral process, wisely inserted various provisions into the Act giving an Arbitrator wide powers to take pre-emptive action against any such party who dishonestly deliberately seeks to frustrate or stall the process, or one who is unjustifiably unwilling to participate. The Act even contains provisions empowering the Arbitrator to proceed ex parte if necessary, after according the “offending” party sufficient time to “mend his ways”, and an ex parte Award given under such circumstances is fully valid provided the Arbitrator has followed the due process. The Applicants thus only seeks to read through the Act, identify the relevant powers, and move the Arbitrator to invoke those powers if necessary.” Final Orders 23. For the above reasons, prayer 2(a) of the Application (Notice of

Motion dated 30/10/2025), which was the only prayer remaining, the rest having been struck out, is partially allowed, and orders issued to the following extent: i) An interim Injunction is hereby issued, restraining the 1st and 2nd Respondents, whether by themselves, their agents, employees and/or servants, or any person claiming through them, from selling, alienating, or dealing with all that property known as Apartment No. C12, located on Land Reference No. 209/5990/13 Grant Number 18295/9, (Duchess Park) in any manner whatsoever that may or is likely to adversely affect or expose the Applicants’ rights, ownership claims, or interests over the property to risk or jeopardy, pending the hearing and determination of the Arbitration proceedings already initiated in respect to the dispute in this matter. ii) Upon conclusion of the Arbitration proceedings, the Arbitral Tribunal shall be at liberty to vary, discharge, or extend these interim measures on stipulated terms, as the circumstances of the case may justify. iii) Since the rest of the prayers made in the Application were struck out, each party shall bear its own costs of the Application. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 18TH DAY OF SEPTEMBER 2026 Milimani HCCOMMMISC/E1215/2025 Page 10 of 10 ................................. WANANDA JOHN R. ANURO

JUDGE Delivered in the presence of: Ms. Syengo for the Applicants Mr. Nyamagwa for the 1st Respondent N/A for the 2nd Respondent Court Assistant: Amos Boso Milimani HCCOMMMISC/E1215/2025