[2023] KEHC 23632 (KLR)

Portside Freight Terminals Limited v Kenya Ports Authority (Civil Suit E065 of 2023) [2023] KEHC 23632 (KLR) (11 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23632 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Suit E065 of 2023

DKN Magare, J

October 11, 2023

Between

Portside Freight Terminals Limited

Plaintiff

and

Kenya Ports Authority

Respondent

Ruling

1. By the Plaint dated 22nd August 2023, the Plaintiff sought the following reliefs:a.A Declaration that arbitration proceedings between the Plaintiff and the Defendant were properly commenced by the Plaintiff’s letter dated 18th August 2023 requiring the Defendant to agree to the agree to the appointment of Arbitrator appointed by the Plaintiff or to offer its own arbitrator for consideration for appointment.b.An injunction to restrain and prohibit the Defendant its agents and or servants in any manner whatsoever from charging the Plaintiff in respect of cargo ship handled by the Plaintiff in accordance with the License Agreement dated 10th December 2020 pending the hearing and determination of the Arbitral Proceedings already commenced by the Plaintiff.

2. The Application is based on Section 7 of the Arbitration Act which provided for interim measures of protection 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.

3. The dispute relates to an agreement dated 10th December 2020 being a license issued by the Defendant to the Plaintiff with terms as contained therein.

4. The Plaintiff relies on Clause 3. 0 for tariff payments and 3. 1 for user charges as doth:a.Stevedoring- the licensee shall pay to the authority charges as per clause 11. 7 of the Kenya Ports Authority Tariff Book or as may be amended from time to time (for import dry bulk cargo handled via conveyors or pipeline from the vessel without landing on the quay to shed 7/8. b.Wharfage-the licensee shall pay t the authority charges raised by the authority on the cargo handled or passing over the quay as per clause 15. 5 of the Kenya Ports Authority Tariff Book as may be amended from time to time.

5. The Plaintiff’s main complaint is that the Defendant is now charging different tariffs.

6. The plaintiff pleaded in paragraph 7 of the Plaint as doth:i.Stevedoring, charges of USD 4. 40 under clause 11. 9 of the Kenya Ports Authority Tariff Book instead of charging the contractually agreed sum of USD 1. 65 under clause 11. 7 of the KPA Tarif Book as covenanted at clause 3(1)(i) of the license agreement.ii.Wharfage- charges of USD 5. 50 under clause 15. 4 of the KPA Tariffs Book instead of charging USD 2. 2 under clause 15. 5 of the KPA Tariffs Book as covenanted under clause 3(1)(ii) of the license agreement.

7. They stated that this is an arbitration agreement and which commenced as per Section 4(3) of the Limitation of Actions Act.

8. Simultaneous with the Application, they filed a Chamber Summons Application dated 22nd August 2023 which was certified urgent by the duty court during the vacation. The Application sought the following Orders:a.spentb.spentc.An injunction be granted to restrain and prohibit the Defendant its agents servants workers or any other person acting under its name from charging the Plaintiff’s user tariffs of USD 4. 40 per tonne for stevedoring under Clause 11. 9 of the Kenya Ports Authority Tariff Book and USD 5. 50 per tonne for wharfage under clause 15. 4 of the same Tariff Book contrary to and in breach of clause 3(1)(i) & 3(1)(ii) of the license agreement entered into between the Plaintiff and the Defendant on 10th December 2020 until the hearing and determination of the suit.d.spente.costs be provided for.

9. The Respondent fled a Replying Affidavit and Further Affidavit dated 30th August 2023 and 11th September 2023 respectively deponing materially doth:a.The Plaintiff had not adduced sufficient grounds to entitle it to the orders sought.b.The Defendant uniformly applied the charges to all its clients.c.The tariffs may be amended rom time to time as defined under the license agreement dated 10th December 2020 and under Section 30 of the KPA Act.d.Determination of the tariffs to charge is by the pe f discharge of bulk cargo from the vessel.e.There are higher charges for cargo not handled directly from the conveyor due to additional works and labour for mechanical discharge of cargo from the vessels.f.The orders cannot be granted without a meritorious analysis of the KPA Tariff Book.g.Section 7 of the arbitration act does not envisage granting orders sought herein to wit injunction to reverse what has been done.

Analysis 10. I have perused the pleadings filed by both parties in support and opposition to the Application. I have also perused the parties’s written submissions.

11. The Defendant submitted that the Plaintiff had not met the threshold for injunctions as stipulated in the locus classicus case of Giella Versus Cassman Brown.

12. It was further submitted that as was held in Elite Earthmovers vs Machakos County Government, (2020) eKLR the Arbitration must be demonstrated to be under threat.

13. Further, the Defendant relied on Section 7 of the Arbitration Act to argue that interim orders were not compatible with the arbitration agreement and should not be granted.

14. The Plaintiff does not seem to have filed their submissions.

15. In the matter of this nature seeking a temporary injunction, the law requires the applicant to show that it has a prima facie case with a probability of success in order to persuade the court to grant an interlocutory injunction in its favour.

16. The law governing the granting of interlocutory injunction is set out under Order 40(1) (a) and (b) of the Civil Procedure Rules 2010 which provides that: -“Where in any suit it is proved by affidavit or otherwise—(a)That any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or [Rev. 2012] Civil Procedure CAP. 21 [Subsidiary] C17 – 165;(b)That the defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit, the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further."

17. The conditions for the granting of an interlocutory injunction are now well settled. In Giella v Cassman Brown & Co Ltd [1973] EA 358 at pg 360, it was stated as follows:-“First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience. (EA Industries v Trufoods, [1972] EA 420. )”

18. Similarly, in Mrao Ltd v First American Bank of Kenya Ltd & 2 others (2003) eKLR, the Court of Appeal stated:“The principles which guide the Court in deciding whether or not to grant an interlocutory injunction are well settled. In Giella v Cassman Brown to refer to a case which shifts the evidential burden of proof, rather than as giving rise to a legal burden of proof in the manner he was considering, which was in relation to the pleadings that had been put forward in that case….So what is a prima facie case? I would say that in civil cases it is a case in which on the material presented to the Court a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”

19. The matters raised in the Replying and Further Affidavit are weights and I have considered them against the Application and the averments in the Plaint.

20. I note that the Applicant is mainly seeking orders in the nature of interim measures of protection and security under section 7 of the Arbitration Act which provides as follows:7. Interim measures by court(1)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.(2)Where a party applies to the High Court for an injunction or other interim order and the arbitral tribunal has already ruled on any matter relevant to the application, the High Court shall treat the ruling or any finding of fact made in the course of the ruling as conclusive for the purposes of the application.

21. This is an interlocutory Application and the Court will not deal with the merits of the Arbitration at this stage. What this court will establish is whether there is dispute to be referred to arbitration. Arbitration thus is the forum through which the suit should be determined on its merits.

22. Therefore, this Court shall invoke the doctrine of forum non conveniens. This doctrine of forum non conveniens was discussed at length by the House of Lords in Spiliada Maritime Corporation vs Cansulex Ltd [1986] 3 ALL ER 843 (HL) and it was partly stated at 853 – 854 thus:“... whether the Latin tag ‘forum non conveniens’ is apt to describe this principle. For the question is not one of convenience, but of the suitability or appropriateness of the relevant jurisdiction. However, the Latin tag (sometimes expressed as forum non conveniens and sometimes as forum conveniens) is so widely used to describe the principle, not only in England and Scotland, but in other Commonwealth jurisdictions and in the United States, that it is probably sensible to retain it. But it is most important not to allow it to mislead us into thinking that the question at issue is one of ‘mere practical convenience’. Such a suggestion was emphatically rejected by Lord Kinnear in Sim v Robinow (1892) 19 R (Ct of Sess) 665 at 668 and by Lord Dunedin, Lord Shaw and Lord Sumner in the Societe du Gaz case 1926 SC (HL) 13 at 18, 19, and 22 respectively. Lord Dunedin said, with reference to the expressions forum non competens and forum non conveniens:‘In my view, “competent” is just as bad a translation for “competens” as “convenient” is for “conveniens”. The proper translation for these Latin words, so far as this plea is concerned, is “appropriate”.’Lord Sumner referred to a phrase used by Lord Cowan in Clements vs Macaulay (1866) 4 Macph (Ct of Sess) 583 at 594, viz more convenient and preferable for securing the ends of justice’, and said: ‘... one cannot think of convenience apart from the convenience of the pursuer or the defender or the Court, and the convenience of all these three, as the cases show, is of little, if any, importance. If you read it as “more convenient, that is to say, preferable, for securing the ends of justice,” I think the true meaning of the doctrine is arrived at. The object, under the words “forum non conveniens” is to find that forum which is the more suitable for the ends of justice, and is preferable because pursuit of the litigation in that forum is more likely to secure those ends.’In the light of these authoritative statements of the scottish doctrine, i cannot help thinking that it is wiser to avoid use of the word ‘convenience’ and to refer rather, as lord dunedin did, to the appropriate forum”. (Emphasis added)

23. I note that it is the court is able to grant an interim order at this stage. It is not to interrogate the merits of the cases as that is for the court to determine on basis of the doctrine of competence-competence. In Uber Technologies Inc. v. Heller, 2020 SCC 16, [2020] 2 S.C.R. 118, the Canadian supreme court held as doth: -“Accordingly, a court should not refer a challenge to an arbitrator’s jurisdiction to the arbitrator if there is a real prospect that doing so would result in the challenge never being resolved. To determine whether only a court can resolve the challenge to arbitral jurisdiction, the court must first determine whether, assuming the facts pleaded to be true, there is a genuine challenge to arbitral jurisdiction. Second, the court must determine from the supporting evidence whether there is a real prospect that, if the stay is granted, the challenge may never be resolved by the arbitrator. While this second question requires some limited assessment of the evidence, this assessment must not devolve into a mini-trial. The only question at this stage is whether there is a real prospect, in the circumstances, that the arbitrator may never decide the merits of the jurisdicdtional challenge. If there is a real prospect that referring a challenge to an arbitrator’s jurisdiction to the arbitrator would result in the challenge never being resolved, a court may resolve whether the arbitrator has jurisdiction over the dispute and, in so doing, may thoroughly analyze the issues and record. The Court, therefore, should resolve the arguments H has raised.”

24. The locus classicus case of Giella = vs = Cassman Brown & Co. Ltd (1973) EA, 358, 360, sets out principles for grant of injunction. The court, stated as follows, though the wisdom of Spry VP, as then he was, as follows: -“The conditions for the grant of an interlocutory injunction are now, I think, well settled in east Africa. First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.”

25. The principles do not apply word for word in the case of arbitration since it is not the court that will hear the case. The principles governing the grant of interim orders of protection under the Arbitration Act were outlined by the Court of Appeal in Safaricom Limited v Ocean View Beach Hotel Limited & 2 others Civil Application No. NAI 327 of 2009 [2010] eKLR where Nyamu JA., observed as follows: -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. Such orders take different forms and go under different names. In the case of Kenya, the Arbitration Act is modeled on the Model Law and the UNCITRAL Rules and this is the reason they are known as “interim measures of protection” under section 7 of the Arbitration Act. On the other hand, in the English version of the ICC Rules for example, they are known as “interim conservatory measures”. 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.……An interim measure of protection such as that sought in the matter before us is supposed to be issued by the court under section 7 in support of the arbitral process not because it satisfies the civil procedure requirements for the grant of injunctions as the High Court purported to do in this matter.To illustrate the point Article 26-3 of the UNICTRAL Arbitration rules states:-“A request for interim measures addressed by any party to a judicial authority shall not be deemed incompatible with the agreement to arbitrate, or as a waiver of the agreement.”Section 7 of the Arbitration Act is modeled on this. However, in the matter before us and with due respect, the Commercial Court (Koome, J.) contravened the above principles by firstly either declining to issue any measure of protection or granting such a measure. The Court also failed to correctly address the principles for the issue of any such measures and worse still, the supreme court took over the subject matter altogether and ruled on the merits of the subject matter of the arbitration thereby prejudicing the outcome of the arbitration. This explains why in the special circumstances of this matter, this Court must take extraordinary measures to rectify an extraordinary illegality. 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. 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.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 for before the commencement of the arbitration so as to avoid encroaching on the tribunal’s decision making power as intended by the parties. [Emphasis mine]

26. Based on the above authorities, this Court served to encourage the Arbitral Process. It is a tool granted under Article 159(2)(c) of the Constitution which enjoins courts and tribunals to be guided by and to promote alternative forms of dispute resolution including arbitration.

27. Apart from the well-known injunctive reliefs which are commonplace, I must decide whether such an order falls within the rubric of interim measure of protection. As the court in Safaricom Limited v Ocean View Beach Hotel Limited & 2 others (Supra) stated, interim orders of protection may take many forms necessary to preserve the status quo or preserve the subject matter of the arbitration. In a case decided before the aforesaid decision, Carzan Flowers (Kenya) Ltd & Others v Tarsal Koos Minck B V & Others ML HCCC No. 514 of 2009 (UR) Kimaru J., observed as follows:“There are different types of interim measures which are available and which are applied differently by courts of various countries. The analytical commentary nevertheless gives clues as to which kinds of interim measures are deemed to be included: steps by the parties to conserve the subject-matter or to secure the evidence, measures required from a third party and their enforcement (i.e. pre-award attachments). Some courts have held that such pre-award attachments were not consistent with the arbitration agreements and the purpose of the 1958 Convention because they would in fact impede expeditious arbitration proceedings. Yet, discourage resort to arbitration or obstruct the course of arbitral proceedings but would rather make the later award meaningful by preserving the subject-matter or assets intact within jurisdictions…In England it has been held that the English Court can support an ICC arbitration by granting interim measures (a) which ordered purely procedural steps which the arbitrators either could not order or could not enforce such as requiring an inspection of the subject matter immediately the dispute arose or compelling attendance of an unwilling witness, (b) which maintained the status quo pending the making of an award e.g. by an interlocutory injunction, so as to prevent one party from bringing about a change of circumstances adverse to the other which the arbitrators could not remedy and (c) which afforded remedies such as mareva injunction designed to ensure that the award had the intended practical effect by causing one party to provide a fund to which recourse could be had by the other party if the first party failed to honour an adverse award spontaneously. However, in determining whether to grant an interim measure in support of the agreement to arbitrate under the ICC rules, the English Court, as the local court, should have regard to (a) the fact that the arbitration was a consensual process and that the court should strive to make the consensus effective by identifying, so far as possible, the kind of arbitrational process that the parties either expressly or impliedly indicated that they were contemplating when they entered into the arbitration agreement (b) the fact that the choice of an ICCC arbitration indicated that the parties intended that the arbitration should, as far as possible, be independent of the national legal system of the country in which the arbitration was to take place, and (c) the degree to which any interim measures would encroach on the arbitrator’s function. There is plainly a tension here. On the one hand the concept of arbitration as a consensual process, reinforced by the ideal of transnationalism, leans always against the involvement of the mechanisms of state through the medium of a municipal court. On the other side there is the plain fact palatable or not, that, it is only a court possessing coercive powers which can rescue the arbitration if it is in danger of floundering, and that the only which possesses these powers is the municipal court of an individual state. Whatever extreme positions may have been taken in the past, there is a broad consensus acknowledging that the local court can have a proper and beneficial part to play in the grant of supportive measures. Total consistency cannot be expected and each domestic court has its own practical methods, developed in the context of litigation, which it will instinctively tend to bring to bear when similar questions arise in the context of arbitration; each country will have its own traditions of arbitration and its own traditions of the relationship between arbitration and the courts… In the case of Coppee-levalin Sa/nv vs. Ken-ren Chemicals And Fertilizers Ltd (IN LIQ) [1994] 2 ALL ER 449, the courts of justice in England accepted as a principle that even in international arbitrations, it may be necessary in certain instances for domestic courts to issue interim measures of protection to secure the substratum of the arbitration process…The court has the jurisdiction to grant the injunction since the whole purpose of giving the court power to take such orders is to assist the arbitral process in cases of urgency before there is an arbitration on foot. Otherwise it is all too easy for a party who is bent on a policy of non-cooperation to frustrate the arbitral process. Of course, in any case where the court is called upon to exercise the power, it must take great care not to usurp the arbitral process and to ensure, by exacting appropriate undertakings from the claimant, that the substantive questions are reserved for the arbitrator or arbitrators…As is evident, in considering whether or not to grant an interim measure of protection pending resolution of a dispute by arbitration, the courts have been cautious not to render determination on the merits of the issues in dispute lest it interferes with the jurisdiction of the arbitrator to whom the parties have granted exclusive jurisdiction to determine their dispute. The courts are not oblivious of the fact that there are times when the courts will be called upon to issue interlocutory orders in order to preserve the subject matter of the dispute pending hearing of the dispute by arbitration…It is clear that in granting an interim measure of protection the court is not rendering any opinion in regard to the matters in dispute between the parties: the court is issuing orders which would in effect assist the arbitral tribunal discharge its mandate by preserving the subject matter of the dispute. Whereas the court is mindful that the decisions cited above were made after the courts interpreted an English statute, however, the general principle set out in the said cases in regard to when a court can intervene in arbitration proceedings to grant appropriate orders with a view to rendering justice to the parties are applicable with equal force in Kenya…In considering an application under section 7(1) of the Arbitration Act, the court is not being called upon to determine the merits of the matters in dispute but rather it is being called upon to aid the arbitration process by putting the disputing parties at a footing that will ensure none of the parties would be prejudiced during the hearing of the dispute by the arbitral tribunal. Of course, as is apparent from some arbitral proceedings, a party to such proceedings who considers himself to have been put at a position of disadvantage and therefore likely to be prejudiced, prior to or during the arbitral proceedings, may have no option but to seek the coercive jurisdiction of the court in order to protect the essence of the arbitral proceedings…The position in Kenya is that for a party to succeed in an application under section 7 of the Arbitration Act, 1995 for interim measure of protection pending hearing of the dispute by arbitration, he must firstly establish that there exists an arbitration clause in the agreement between the parties that is capable of being invoked to have the dispute referred for determination by arbitration. Secondly, such a party must establish that it would suffer irreparable damage or loss that by the time the arbitration is heard; such a party may not be able to obtain an appropriate remedy. Generally the courts have accepted that for interim measure of protection to be granted, the applicant must establish a case broadly under the established principles for the grant of interlocutory injunction…A court hearing an application for the grant of interim measures of protection must always act cautiously and must put in mind the fact that, in considering the application, it should not exceed its jurisdiction and make a determination that is clearly within the province of the arbitrator. The court should not lose sight of the fact that a grant of any interim measure of relief is meant to preserve or conserve the subject matter of the arbitration pending hearing and determination of the dispute by arbitration. The interim measure granted should aid but not impede the realisation of the resolution of the dispute between the parties by arbitration. The court is therefore expected to tread on the thin line that separates the making of the decision in respect of a matter that is actually in dispute (and which the parties have by consensus granted exclusive jurisdiction to the arbitrator) and granting orders that will put the parties in such a position that when the arbitrator makes his award, the same would be of benefit to the successful party…The case has still to have an element of prima facie case. Not every case deserves to have interim measures. In this case, the first question is whether there is an arbitrable dispute. This is what can satisfy the prima facie test. In the case of Mrao Ltd Vs First American Bank of Kenya and 2 others (2003) KLR 125, the Court of Appeal held that: -“A Prima facie case in a civil application includes but not confined to a genuine and arguable case. It is a case which on the material presented to the court, a tribunal properly directing itself will conclude there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the later”.

28. There is an agreement from both sides that charges were set out in the agreement relate to clauses 11. 7 and 15. 5 for stevedoring and Wharfage quay to shed 7/8. Clauses 11. 9 and 15. 4, though available in the tariff book are not mentioned. It could be true that there are other methods of charging. However, prima facie the two methods were expressly mentioned. The other were not were not. It is therefore clear that there is a clear dispute to be handled by the arbitrator.

29. In Fidelity & Commercial Bank Ltd v Kenya Grange Vehicle Industries Ltd (2017) eKLR, the Court of Appeal, Ouko, Kiage and Murgor JJA held as doth; -“Courts adopt the objective theory of contract interpretation and profess to have overriding view sometimes called Four Corners of an Instrument, which insists that a documents meaning should be derived from the document itself, without reference to anything outside of the document, …”

30. I therefore find that there is a prima facie case disclosed. The dispute is no an idle one.

31. In the case of Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR the Court of Appeal was of the view that these tests are sequential. The Court stated as doth: -“In an interlocutory injunction application, the applicant has to satisfy the triple requirements to;(a)establish his case only at a prima facie level,(b)demonstrate irreparable injury if a temporary injunction is not granted, and(c)ally any doubts as to (b) by showing that the balance of convenience is in his favour.“These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially. See Kenya Commercial Finance Co. Ltd V. Afraha Education Society [2001] Vol. 1 EA 86. If the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted, will be irreparable.In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between.”

32. The second aspect is the irreparable harm. The nature of the dispute is about charging for work done. It is done on continuous basis. The parties may have contracted for the for stevedoring and Wharfage and as such may have to suddenly change their long term contracts. If it turns out that the plaintiff was overcharging, it is a loss of business reputation.

33. I was reading the decision of lord Denning MR, in the celebrated case of Central London Property Trust, Ltd. V. High Trees House, Ltd. King's Bench Division [1947] KB 130, [1956] 1 All ER 256, [1946] WN 175, and noted parallels. The Defendants appear to have a written agreement but have strayed out. If they knew they were to use the higher charges, nothing could have been harder than say so in the written agreement. It is important for the sake of certainly to have agreements entered into respected, pacta sunt servanda. The reverse is unthinkable.

34. Without saying much, as the matter is still pending arbitration, any payment in terms of fess is non- refundable. The loss with thus be borne by the Plaintiff, whichever way the case proceeds.

35. On the balance of convenience, the Records are maintained by the defendant. In that connection, should the arbitrator make an order, the respondent should be in a position to make amends. The balance of convenience is looked at in the case of doubt. The court has no doubt on the aspect of the damages. The balance of convenience tilts in favour of the Applicant. The court in Gio-Fo Investment Limited V Martini Charo Masha Mwanduka & 4 Others [2006] eKLR, the court, W. Ouko, as then he was, stated as doth: -“I conclude on this point that damages will not be adequate compensation. Even though I am not in doubt as to the existence of a prima facie case I am of the view that the balance of convenience lies with the Applicant having shown on a prima facie basis that it is the registered proprietor of the suit property.”

36. In the case of Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] eKLR, the court held as doth in dealing with the issue of balance of convenience:“The meaning of balance of convenience in favor of the Applicant is that if an injunction is not granted and the suit is ultimately decided in favor of the Applicants, the inconvenience caused to the Applicant would be greater than that which would be caused to the defendants if an injunction is granted but the suit is ultimately dismissed. Although it is called balance of convenience it is really the balance of inconvenience and it is for the Applicants to show that the inconvenience caused to them would be greater than that which may be caused to the defendants. Should the inconvenience be equal, it is the Applicants who suffer. In other words, the Applicants have to show that the comparative mischief from the inconvenience which is likely to arise from withholding the injunction will be greater than which is likely to arise from granting it.”

37. In the case of Robert Ochanda Abuya v Kenya Power and Lighting Company Limited [2021] eKLR, Justice Maureen Onyango, held as follows:“20. That the current financial distress of the Claimant is a direct result of the Respondent's unlawful actions. That the intended recovery of the sums by the Respondent would cause not only financial embarrassment to the Applicant but to mental anguish which is predicated by the Respondent's unlawful actions. That such mental anguish would not be adequately remedied by damages.21. For emphasis the Applicant relies on Halsbury’s Laws of England, Third Edition, Volume 21, paragraph 739, page 352 which reads:-“It is the very first principle of injunction low that primo facie the Court will not grant an injunction to restrain an actionable wrong for which damages are the proper remedy. Where the Court interferes by way of an injunction to prevent an injury in respect of which there is a legal remedy, it does so upon two distinct grounds first, that the injury is irreparable and second, that it is continuous. By the term irreparable injury is meant injury which is substantial and could never be adequately remedied or atoned for by damages, not injury which cannot possibly be repaired and the fact that the Applicant may have a right to recover damages is no objection to the exercise of the jurisdiction by injunction, if his rights cannot be adequately protected or vindicated by damages. Even where the injury is capable of compensation in damages an injunction may be granted, if the act in respect of which relief is sought is likely to destroy the subject matter in question” [As cited in Succession Cause No. 374 of 2010: Francis Muriithi Ndirangu v Ruth Wanjiku Nderitu [2016] eKLR].22. For the Respondent it is submitted that the term irreparable harm basically refers to harm or injury that cannot be adequately compensated by any amount of monetary award or one which cannot be reversed to the state before the damage. The Respondent submits that in legal parlance, irreparable harm has been defined as follows: -“A legal concept that argues that the type of harm threatened cannot be corrected through monetary compensation or conditions that cannot be put back to the way they were.

38. In the case of Hezron Kamau Gichuru v Kianjoya Etrprises Ltd & another [2022] eKLR, Lustice L. A. Omollo, held as doth: -“In the case of Paul Gitonga Wanjau Vs Gathuthis Tea Factor Company Ltd & 2 others (2016) eKLR, the court dealing with the issue of balance of convenience expressed itself thus:-“Where any doubt exists as to the Applicants’ right, or if the right is not disputed, but its violation is denied, the court, in determining whether an interlocutory injunction should be granted, takes into consideration the balance of convenience to the parties and the nature of the injury which the Respondent on the other hand, would suffer if the injunction was granted and he should ultimately turn out to be right and that which the Applicant, on the other hand, might sustain if the injunction was refused and he should ultimately turn out to be right... Thus, the court makes a determination as to which party will suffer the greater harm with the outcome of the motion. If Applicant has a strong case on the merits or there is significant irreparable harm, it may influence the balance in favour of granting an injunction. The court will seek to maintain the status quo in determining where the balance of convenience lies.”

39. In this matter, what suffers is not even the parties only but the arbitration process. The parties will also have shifted their positions fundamentally. I am satisfied that an order of injunction is proper in the circumstances.

40. I have eschewed repeating the parties’ submissions herein at lengthy though I considered them. The problem was that the parties went into the merit of the case, which will have resulted in a mini-trial. Other than the issue that the respondent felt that the case was baseless, they could not show that the injunction will be prejudicial. The party must learn in matters of this nature o address issues of interim measures and not the merits.

41. An injunction be and us hereby granted to restrain and prohibit the Defendant, its agents servants workers or any other person acting under its name from charging the Plaintiff’s user tariffs of USD 4. 40 per tonne for stevedoring under Clause 11. 9 of the Kenya Ports Authority Tariff Book and USD 5. 50 per tonne for wharfage under Clause 15. 4 of the same Tariff Book contrary to and in breach of Clause 3(1)(i) & (ii) of the License Agreement entered into between the Plaintiff and the Defendant . I am satisfied that a status quo is necessary to preserve the process of the Arbitration process.

Determination 42. The upshot of the foregoing is that the Application dated 22nd August 2023 is allowed as follows:a.An injunction be and is hereby granted to restrain and prohibit the Defendant, its agents servants workers or any other person acting under its name from charging the Plaintiff’s user tariffs of USD 4. 40 per tonne for stevedoring under Clause 11. 9 of the Kenya Ports Authority Tariff Book and USD 5. 50 per tonne for wharfage under Clause 15. 4 of the same Tariff Book contrary to and in breach of Clause 3(1)(i) & (ii) of the License Agreement entered into between the Plaintiff and the Defendant on 10th December 2020 until the hearing and determination of the arbitration.b.Costs shall abide the outcome of the arbitration.c.The matter be held in abeyance pending the outcome of the arbitration.

Orders accordingly.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 11TH DAY OF OCTOBER, 2023. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGE