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High CourtStruck OutNot stated in the judgment (Nairobi High Court miscellaneous application)· [2020] KEHC 9410 (KLR)
In re Application by an Insurance Broker (Notice of Motion dated 7th February 2020) under sections 7(1) and 10 of the Arbitration Act, 1995
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·~5 min to read original · ~4 min briefThe bottom line
#To get temporary court protection during arbitration, your application must be formally linked to a primary lawsuit.
What this practically means
#Executive summary
#The applicant, an insurance broker, moved the High Court by Notice of Motion dated 7th February 2020 under sections 7(1) and 10 of the Arbitration Act, 1995, seeking interim measures of protection pending arbitration of a dispute arising from a brokerage contract dated 1st January 2017: an injunction restraining the respondent from conducting general insurance, insurance services and brokerage business with the interested party, and an order that the applicant's December 2019 renewal proposal operate as renewal of the contract. The application was supported by an affidavit of Moses Mathini and opposed by the respondent through Paul Chege. At the hearing, the respondent raised a preliminary point: the motion was fatally defective because it was not anchored on a suit, contrary to section 7 of the Act and Rule 2 of the Arbitration Rules, 1997, which requires applications under sections 6 and 7 to be made by summons in the suit. Majanja J. accepted the point, holding himself bound by the Court of Appeal's decision in Scope Telemantics International Sales Limited v Stoic Company Limited, which held Rule 2 mandatory and that Article 159 of the Constitution cannot cure non-compliance with a mandatory statutory provision. The court also noted concordant High Court decisions in Tyl Limited and Civicon Limited. Without reaching the merits of the interim relief, the court struck out the Notice of Motion with costs to the respondent and interested party. Judgment delivered at Nairobi on 25th February 2020.
Key legal issues
#01
Procedural competency of an application for interim measures of protection under section 7 of the Arbitration Act
Holding
The application must be anchored on a suit by way of summons in the suit; a Notice of Motion is fatally defective
Reasoning
Rule 2 of the Arbitration Rules, 1997 is mandatory. The Court of Appeal in Scope Telemantics held that where a clear statutory procedure prescribes the mode of redress it must be strictly followed, and that Article 159 cannot cure non-compliance with a mandatory statutory provision. The trial judge is bound by that precedent and declined to reach the merits of the interim relief sought.
p. 2
Legal principles established
#- Applications under sections 6 and 7 of the Arbitration Act must be made by summons in the suit; a Notice of Motion not anchored on a suit is incompetent and fatally defective
Court orders
#- 1.Notice of Motion dated 7th February 2020 struck out with costs to the respondent and interested party
- Jurisdiction invoked
- Sections 7(1) and 10 of the Arbitration Act, 1995 and Rule 2 of the Arbitration Rules, 1997
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "In re Application by an Insurance Broker (Notice of Motion dated 7th February 2020) under sections 7(1) and 10 of the Arbitration Act, 1995", Case Analysis (2020). Not stated in the judgment (Nairobi High Court miscellaneous application). Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.