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ELCPartially AllowedNot stated in the judgment· [2025] KEELC 3061 (KLR)

North Stream Limited v Registered Trustees of the Comboni Sisters (Enviromental and Land Originating Summons E063 of 2024) [2025] KEELC 3061 (KLR)

High Court of Kenya
2 April 2025
3,439 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Nairobi tenant facing arbitration over its lease can stay on the property for up to a year, but must keep paying rent while the dispute is resolved.

What this practically means

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Executive summary

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The court determined two competing applications arising from a lease dispute pending arbitration. The Applicant, a company whose director Fuad Salim leased Land Reference No. 4857/22, Nairobi for 27 years to develop a fuel station and retail complex, sought a temporary injunction restraining eviction, demolition, or interference pending arbitral proceedings. It claimed the Respondent refused to release the converted title for lease registration, demanded Kshs.3 million extra, and then issued an eviction notice, while alleging bias against the nominated arbitrator on religious grounds (a challenge dismissed on 10th September 2024). The Respondent, through trustee Susan Murugi Ng'ang'a, opposed, alleging rent default, reliance on a bank guarantee never furnished, a termination notice effective 13th January 2024, and sought a mandatory injunction compelling the Applicant to vacate. Applying section 7 of the Arbitration Act and the principles in Giella v Cassman Brown, Safaricom v Ocean View, Itabuild Imports and Kenya Breweries v Okeyo, the court held that the fulcrum of the dispute - the terms of the Lease Agreement including its termination - was before the arbitrator, and eviction would put the arbitral subject matter under threat. It allowed the Applicant's Notice of Motion, granting a temporary injunction for up to one year, conditioned on continued rent payment or deposit in a joint interest-earning account. The Respondent's Chamber Summons for a mandatory injunction was disallowed. Each party was ordered to bear its own costs.

Key legal issues

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01

Interlocutory injunction restraining eviction pending arbitration

Holding

Granted for up to one year, since the Applicant is in occupation, has invested on the land, and eviction would threaten the subject matter of arbitration

Reasoning

Applying Giella v Cassman Brown and section 7 of the Arbitration Act, the court held that the dispute over occupation is governed by the Lease and is before the arbitrator. Since the Applicant is already on the land and has invested there, evicting it while rent arrears and lease termination are contested before the arbitrator would place the arbitration's subject matter under threat. A holding injunction preserves the status quo without encroaching on the tribunal's decision-making power.

p. 7
02

Mandatory injunction for eviction at interlocutory stage

Holding

Refused; the Respondent did not satisfy the test that a mandatory injunction is granted only in clear cases or special circumstances

Reasoning

Relying on Kenya Breweries Ltd v Washington Okeyo quoting Halsbury's Laws, a mandatory injunction is not normally granted on interlocutory application absent special circumstances. The Respondent's claim rested on alleged rent arrears and a termination notice whose validity is unresolved before the arbitrator, so the case was not clear enough to justify so drastic an interlocutory remedy.

p. 6

Legal principles established

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  • Courts may grant interim measures of protection under section 7 of the Arbitration Act to preserve the subject matter of a dispute pending arbitration, applying the Giella v Cassman Brown principles and the Safaricom v Ocean View criteria

Court orders

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  1. 1.Pending the hearing and final determination of the arbitral proceedings and for not more than one year, a temporary injunction issued restraining the Respondent from evicting the Applicant, demolishing structures, harassing, alienating, transferring, disposing of, or otherwise interfering with Land Reference No. 4857/22, Nairobi, including sale, auction, or appointment of receivers
  2. 2.The Applicant directed to continue paying rent to the Landlord or, in the alternative, deposit it in a joint interest earning account pending outcome of the arbitral proceedings
  3. 3.Each party to bear their own costs
Jurisdiction invoked
Section 7 of the Arbitration Act (interim measures by court)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "North Stream Limited v Registered Trustees of the Comboni Sisters (Enviromental and Land Originating Summons E063 of 2024) [2025] KEELC 3061 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3061/eng@2025-04-02

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.