Digro Holdings and Construction Ltd v Omari & another (Environment and Land Miscellaneous Case E010 of 2026) [2026] KEELC 4688 (KLR)
The bottom line
#A Kenyan court protected a contractor from eviction and confirmed you can get urgent court help before arbitration starts using a simple application.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Preliminary Objection is a proper preliminary objection challenging the competence of the proceedings
- 2.Whether an application under Section 7 of the Arbitration Act must be anchored in a substantive originating suit, or may be brought by way of Miscellaneous Application
- 3.Whether the Applicant has established a basis for the grant of interim measures of protection pending arbitration
Key legal issues
#Whether the objection qualifies as a proper preliminary objection
Yes - it challenges the competency of the proceedings and the Court's jurisdiction
Applying the classic Mukisa Biscuit test, the court found that an objection challenging the competency of proceedings and the court's jurisdiction raises a pure point of law that may dispose of the suit, and therefore qualifies as a proper preliminary objection.
Whether a Section 7 application must be anchored in a substantive originating suit
No - the Miscellaneous Application suffices; Rule 2 of the Arbitration Rules cannot be read to defeat the statutory jurisdiction under Section 7
Section 7 confers a special, ancillary, statutory supervisory jurisdiction exercisable before or during arbitral proceedings and prescribes no originating suit. Reading Rule 2 to require a substantive suit would compel parties into litigation despite their arbitration agreement, undermining the legislative policy of Sections 7 and 10, party autonomy and minimal judicial intervention, and Article 159(2)(d) on procedural technicalities.
Whether interim measures of protection should issue
Yes - a genuine arbitrable dispute exists and preservation of the status quo is necessary to avoid rendering the arbitration nugatory
The arbitration agreement under Clause 45 was undisputed, and disputes on valuation, suspension and termination fell within it. The Applicant faced imminent eviction and removal of equipment; the Respondents' opposition was purely procedural. The balance tilted toward preserving the prevailing state of affairs pending arbitration.
Legal principles established
#- Applications under Section 7 of the Arbitration Act need not be anchored in a substantive originating suit; the Miscellaneous Application is a sufficient procedural vehicle for the statutory, ancillary jurisdiction
- Procedural rules cannot be construed to defeat the substantive jurisdiction expressly conferred by statute
Court orders
#- 1.The Respondents' Notice of Preliminary Objection dated 14th May 2026 is dismissed
- 2.Pending the commencement, hearing and determination of the arbitral proceedings contemplated under Clause 45 of the Construction Contract dated 29th January 2024, an interim injunction restraining the Respondents from forcefully evicting the Applicant from L.R. No. Ngong/Ngong/94221, removing the Applicant's equipment or construction materials, or interfering with its possession of and access to the site
- 3.The parties shall, within Forty Five (45) days from the date hereof, take all necessary steps to commence the arbitral proceedings, failing which either party shall be at liberty to apply
- 4.The costs of both the Notice of Motion and the Preliminary Objection shall abide the outcome of the arbitral proceedings
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 7 of the Arbitration Act, 1995
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The jurisdiction is exercisable before or during arbitral proceedings, thereby acknowledging that arbitration may not necessarily have commenced for judicial intervention to be invoked.
The combined effect of Sections 7 and 10 of the Arbitration Act is that the Court's jurisdiction is exceptional, statutory limited and ancillary to arbitration.
Pending the commencement, hearing and determination of the arbitral proceedings contemplated under Clause 45 of the Construction Contract dated 29th January 2024, an interim injunction is hereby issued restraining the Respondents
The parties shall, within Forty Five (45) days from the date hereof, take all necessary steps to commence the arbitral proceedings in accordance with their agreement, failing which either party shall be at liberty to apply.
The costs of both the Notice of Motion and the Preliminary Objection shall abide the outcome of the arbitral proceedings.
Issues in the judgment
#The Notice of Motion is dated 11th February 2026 but the cause number is styled ELCLMISC/E010/2025, an apparent mismatch between the filing year in the case number and the application date
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Digro Holdings and Construction Ltd v Omari & another (Environment and Land Miscellaneous Case E010 of 2026) [2026] KEELC 4688 (KLR)", Case Analysis (2026). Kajiado ELCLMISC/E010/2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4688/eng@2026-07-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.