Edgar Mabhiza & another v Joseph Evans Wayiera Ounga t/a Wayiera Properties [2021] KEELC 2080 (KLR)
The bottom line
#Kenyan courts can still protect land with injunctions even when a contract requires disputes to go to arbitration.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the High Court to grant interim measures despite an arbitration clause
Section 7 empowers the court to grant interim protection notwithstanding the arbitration agreement; the jurisdiction objection based on clause 13 fails
Section 7(1) of the Arbitration Act expressly permits a party to request interim measures from the High Court before or during arbitral proceedings, and empowers the court to grant them. Coast Apparel and Safaricom confirm the provision applies before or during arbitration. Therefore the defendant's contention that clause 13 ousts the court's jurisdiction was rejected.
Whether the subject matter of arbitration was under threat
Yes - the land, purchased and registered exclusively in the defendant's name contrary to the partnership agreement, was likely to be subdivided and sold, jeopardizing the arbitration
The partnership agreement required the land to be registered in the parties' names in proportion to invested share capital, yet the defendant registered it exclusively in his own name. Since the purpose of the venture was to subdivide and sell plots, the court found it likely the defendant would do so, causing the subject matter of arbitration to cease to exist and rendering proceedings nugatory.
Appropriate form and duration of the interim measure
A time-bound injunction pending arbitration, with a 30-day deadline to commence arbitration failing which orders lapse
Relying on Coast Apparel, the court held that interim measures must be limited in time so as not to encroach on the tribunal's decision-making powers. Accordingly the injunction was granted pending arbitration, coupled with a 30-day requirement for the plaintiffs to commence arbitral proceedings, after which the orders automatically lapse.
Legal principles established
#- The High Court may grant interim measures of protection under Section 7 of the Arbitration Act before or during arbitral proceedings to protect the subject matter of arbitration
- A party cannot come to court to seek an order referring a dispute to arbitration; the aggrieved party must invoke the arbitration process in the agreement itself
- Interim protection orders must be specific and time bound to avoid abuse
Court orders
#- 1.A temporary injunction restraining the defendant from subdividing, selling, transferring, charging, mortgaging, developing and/or carrying any developments and/or committing any other acts of waste, and/or generally interfering with LAND PARCEL NO. KISUMU/DAGO/1138 Kisumu County pending the reference of the dispute to arbitration and/or pending the hearing and determination of arbitration proceedings
- 2.The arbitral proceedings to be commenced in terms of the partnership agreement within 30 days, failure of which the orders will automatically lapse
- 3.Costs of the application to abide the arbitral proceedings
- Jurisdiction invoked
- Section 7(1) of the Arbitration Act; Sections 1, 1A, 1B, 3, 3A and 63(c)&(e) of the Civil Procedure Act; Article 159 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Edgar Mabhiza & another v Joseph Evans Wayiera Ounga t/a Wayiera Properties [2021] KEELC 2080 (KLR)", Case Analysis (2021). Not stated in the extract (Kisumu ELC matter). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2080/eng@2021-09-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.