[2024] KEHC 8729 (KLR)

[2024] KEHC 8729 (KLR)

The court found that while section 7 of the Arbitration Act empowers the High Court to grant interim measures of protection even where arbitration is ongoing, the specific relief sought in this application had already been litigated and determined in HCCC E196 of 2021. The prior ruling by Mativo J addressed the same issue of freezing the funds in question and declined to grant the order. As such, the matter is res judicata under section 7 of the Civil Procedure Act, and the court lacks jurisdiction to re-open or reconsider the same issue between the same parties. The preliminary objection on the ground of pending arbitration was dismissed, but the objection on res judicata was upheld....

Citation
[2024] KEHC 8729 (KLR)
Parties
Plaintiff: Polyphase Systems Limited; Defendant: Sterling & Wilson Solar Ltd; Defendant: I&M Bank Limited; Defendant: ABSA Kenya Ltd (Formerly Barclays Bank of Kenya Ltd)
Court
High Court
Court Station
High Court at Nairobi (Milimani Commercial Courts)
Jurisdiction
Kenya
Judgment Date
22 July 2024
Case Number
Civil Suit E361 of 2023
Procedural Posture
Civil Suit / Ruling on Chamber Summons for Interim Protection
Outcome
application struck out as res judicata with costs to the respondents
Judges
A Mabeya
Legal Topics
Performance Guarantees, Interim Measures, Arbitration Jurisdiction, Res Judicata, Banking Disputes
Source Language
English
Commercial and Corporate Civil Procedure Alternative Dispute Resolution Performance Guarantees Interim Measures Arbitration Jurisdiction Res Judicata Banking Disputes

Case Brief

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Parties

Polyphase Systems Limited

Plaintiff

Sterling & Wilson Solar Ltd

Defendant

I&M Bank Limited

Defendant

ABSA Kenya Ltd (Formerly Barclays Bank of Kenya Ltd)

Defendant

Procedural Posture

Civil Suit / Ruling on Chamber Summons for Interim Protection

Legal Issues

  1. 1 Whether the High Court has jurisdiction to grant interim measures of protection in light of ongoing arbitration proceedings.
  2. 2 Whether the application is res judicata due to prior determination in HCCC E196 of 2021.

Ratio Decidendi

The court found that while section 7 of the Arbitration Act empowers the High Court to grant interim measures of protection even where arbitration is ongoing, the specific relief sought in this application had already been litigated and determined in HCCC E196 of 2021. The prior ruling by Mativo J addressed the same issue of freezing the funds in question and declined to grant the order. As such, the matter is res judicata under section 7 of the Civil Procedure Act, and the court lacks jurisdiction to re-open or reconsider the same issue between the same parties. The preliminary objection on the ground of pending arbitration was dismissed, but the objection on res judicata was upheld....

Court Disposition

application struck out as res judicata with costs to the respondents

Orders

  • The Chamber Summons application dated 14/8/2023 is struck out as res judicata.
  • The applicant shall bear the costs of the application.