[2005] KEHC 1579 (KLR)
The court held that while a party to arbitration proceedings is entitled to seek interim protection, the plaintiff's application was not brought under section 7 of the Arbitration Act but under the Civil Procedure Rules. Nevertheless, in the absence of demonstrated prejudice to the 1st defendant and to allow the...
Source-derived case information.
- Citation
- [2005] KEHC 1579 (KLR)
- Parties
- Plaintiff: Mugoya Construction & Engineering Ltd; Defendant: National Social Security Fund Board of Trustees (N.S.S.F.); Defendant: Symbion International Ltd.
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 59 of 2005
- Procedural Posture
- Civil Case / Ruling on Application for Stay and Interim Protection
- Outcome
- Temporary stay granted for 60 days to maintain status quo.
- Legal Topics
- Interim Measures, Arbitration Act Section 7, Stay of Proceedings, Status Quo Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mugoya Construction & Engineering Ltd
Plaintiff
National Social Security Fund Board of Trustees (N.S.S.F.)
Defendant
Symbion International Ltd.
Defendant
Procedural Posture
Civil Case / Ruling on Application for Stay and Interim Protection
Legal Issues
- 1 Whether the plaintiff is entitled to a temporary stay of proceedings to maintain the status quo pending an application for interim protection.
- 2 Whether the application for interim protection must be brought under section 7 of the Arbitration Act or may be brought under the Civil Procedure Rules.
- 3 Whether granting the stay would prejudice the defendants.
Ratio Decidendi
The court held that while a party to arbitration proceedings is entitled to seek interim protection, the plaintiff's application was not brought under section 7 of the Arbitration Act but under the Civil Procedure Rules. Nevertheless, in the absence of demonstrated prejudice to the 1st defendant and to allow the plaintiff to make an appropriate application for interim protection, the court found it just to grant a temporary stay for 60 days to maintain the status quo. The court declined to set a hearing date for the application not properly brought under the Arbitration Act but granted the stay to prevent potential injustice.
Court Disposition
Temporary stay granted for 60 days to maintain status quo.
Orders
- A stay of 60 days is granted from the date of the ruling, during which period the status quo will be maintained.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT
MILIMANI COMMERCIAL COURTS, NAIROBI
Civil Case 59 of 2005
MUGOYA CONSTRUCTION & ENGINEERING LTD…PLAINTIFF
-V E R S U S-
NATIONAL SOCIAL SECURITY FUND
BOARD OF TRUSTEES (N.S.S.F.)……………...…..1ST DEFENDANT
SYMBION INTERNATIONAL LTD. ……....…..…….2ND DEFENDANT
R U L I N G
After delivering the ruling herein dated 27th July, 2005, Mr. King’ara for the plaintiff/respondent applied for a stay for 60 days during which period the status quo should be maintained. He needs the time to seek his client’s instructions as to whether they should prefer an appeal. At the same time, S. 7 of the Arbitration Act entitles them to request from the High Court an Interim measure of protection. He sought a date for the hearing of the plaintiff’s application dated 31st January, 2005.
In response, Mr. Macharia Njeru for the 1st Defendant strongly opposed the application and submitted that the plaintiff’s application dated 31st January, 2005 was not made under the Arbitration Rules. He further submitted that granting the orders sought would be highly prejudicial to his client, and that it would give the plaintiffs through the back door what they failed to get through the front door.
Mr. King’ara, in reply, said that the attitude of the defendant’s counsel fortifies his fears that they want to bulldoze matters away from the court.
I have considered the issues raised by both sides. S. 7 of the Arbitration Act is clear to the effect that 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. The application filed by the plaintiff on 31st January, 2005 was not filed under S. 7 of the Arbitration Act. For some understandable and quite pertinent reasons, it was filed under the requisite provisions of the Civil Procedure Rules. While accepting that a party to arbitration proceedings is entitled to apply for some measure of protection, I cannot give a date for that application as it is not brought under the Arbitration Act. As the court has not been told how the 1st defendant will be prejudiced by any interim order of stay, and in order to enable the plaintiff to make an appropriate application, I think that it is meet and just to grant a temporary stay pending the making of that application for interim protection.
For the above reasons, I accordingly grant the plaintiff a stay of 60 days from today, during which period the status quo will be maintained.
Dated and delivered at Nairobi this 2nd day of August 2005.
L. NJAGI
JUDGE