[2016] KEHC 8252 (KLR)
The court found that the subject matter of the injunction—the tiles and timber fittings—had already been removed before the injunction was issued, as evidenced by unchallenged photographic proof provided by the defendant. Therefore, the injunction served no practical purpose and was discharged. Additionally, since...
Source-derived case information.
- Citation
- [2016] KEHC 8252 (KLR)
- Parties
- Plaintiff: Yangguang Property Design and Manufacturing Limited; Defendant: Cosmocare Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 45 of 2016
- Procedural Posture
- Civil Suit / Ruling on Application to Set Aside Injunction and Stay Proceedings Pending Arbitration
- Outcome
- Application to set aside injunction allowed; proceedings stayed pending arbitration.
- Legal Topics
- Injunctions, Arbitration Referral, Stay of Proceedings, Contempt of Court Allegations
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Yangguang Property Design and Manufacturing Limited
Plaintiff
Cosmocare Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Set Aside Injunction and Stay Proceedings Pending Arbitration
Legal Issues
- 1 Whether the injunction order should be set aside given the subject matter was removed before its issuance.
- 2 Whether the court proceedings should be stayed pending arbitration as agreed by both parties.
Ratio Decidendi
The court found that the subject matter of the injunction—the tiles and timber fittings—had already been removed before the injunction was issued, as evidenced by unchallenged photographic proof provided by the defendant. Therefore, the injunction served no practical purpose and was discharged. Additionally, since both parties had agreed to arbitration and the process had commenced, the court stayed the proceedings to allow the arbitral process to resolve the dispute. The costs of the application would be determined in the arbitral proceedings, to be awarded to the successful party therein.
Court Disposition
Application to set aside injunction allowed; proceedings stayed pending arbitration.
Orders
- The injunction order issued on 23rd February 2016 is discharged.
- The proceedings are stayed pending the hearing and determination of the arbitration.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL AND ADMIRALTY DIVISION
CIVIL SUIT NO. 45 OF 2016
YANGGUANG PROPERTY DESIGN AND MANUFACTURING LIMITED…..PLAINTIFF
-VERSUS -
COSMOCARE LIMITED…………………………….………..................…..DEFENDANT
RULING
1. The defendant’s application dated 7th March 2016 seeks to set aside the injunction order issued on 23rd February 2016. Secondly, it requests that this case be stayed so that the matters in issue can be determined through arbitration.
2. The order that was made on 23rd February 2016 was in the following terms;
“THAT the Defendant, its employees, agents, servants, assignees and/or any other person instructed by or claiming under the Defendant be and are hereby restrained by way of an injunction from removing and or interfering with floor tiles and any other timber fittings installed in any part of the building under construction on Land Reference Number 4580/15 at Riverside Drive in Nairobi County pending the reference, hearing and determination of this matter by the Arbitration Tribunal to be constituted by the Chartered Institute of Arbitrators of Kenya or any other Arbitrator to be agreed upon by the parties hereto?.
3. The defendant indicated that it was not possible for it to comply with the injunction because the subject matter of the order had been removed on 21st January 2016.
4. In its replying affidavit, the plaintiff has not challenged the defendant’s contention about the removal of the subject matter, prior to the issuance of the injunction.
5. Instead, the plaintiff has asserted that the defendant owes it considerable sums of money, in respect to the work which the plaintiff had already done.
6. The plaintiff states that the defendant had bigger financial muscle, which it was using to intimidate and to frustrate the plaintiff.
7. But the plaintiff also confirms that the dispute has already been referred to arbitration.
8. In effect, both the parties are in agreement about the suitability of arbitration, as the chosen medium through which their dispute would be resolved.
9. The only issue that is therefore left outstanding is whether or not the injunction ought to be disregarded.
10. Interestingly, the plaintiff submitted that the defendant had;
“….in defiance of the court order…. gone ahead and removed the tiles…..?
11. In the light of that submission, the plaintiff expressed the view that the defendant was in contempt of court.
12. There is currently no application before the court, founded upon the defendant’s alleged contempt of court. I am therefore not called upon to make any determination in that respect.
13. What is clear is that the defendant produced photographs to show that the tiles had been removed, and that the floors were bare. The photos were not challenged by the plaintiff. Therefore, on a balance of probabilities I find that it is more probable than not that the subject matter of the injunction order have been removed. Therefore, the injunction order serves no purpose. It is therefore discharged.
14. Secondly, as the plaintiff has confirmed that it has set in motion the arbitration process, there is every reason to put on hold these court proceedings.
15. Accordingly, I order that the proceedings be put on hold pending the hearing and determination of the arbitration proceedings.
16. The costs of the application shall be in the cause, in the arbitral proceedings. In effect, the party who is successful in those proceedings shall also be awarded the costs of the application dated 7th March 2016.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI this1st dayof September2016.
FRED A. OCHIENG
JUDGE
Ruling read in open court in the presence of
Miss Nyariro for Wambugu for the Plaintiff
Miss Chepkurui for Wandago for the Defendant
Collins Odhiambo – Court clerk.