Pepeta Holdings Limited v Good To Great Solutions Limited

parties reserved the right to refer disagreements to arbitration. It is further argued that the Court cannot grant injunctive relief on the basis of a miscellaneous application, since interlocutory orders cannot issue in a vacuum absent a substantive suit. 5. The respondent also raises several additional grounds, including the nature of the dispute as a liquidated claim, the propriety of the supporting affidavit sworn by counsel, alleged conflict of interest, material non-disclosure, and lack of authority to institute proceedings on behalf of the applicant company. Analysis and Determination 6. Before considering the merits of these objections, it is necessary to restate the legal framework on what constitutes a proper preliminary objection. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd, [1969] EA 696, Law JA stated that a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. 7. Similarly, Sir Charles Newbold, P observed that a preliminary objection: “ raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.” 8. 9. Guided by this principle, only two grounds raised by the respondent qualify as pure points of law: a. whether injunctive relief can issue in the absence of a substantive suit, and b. whether the application filed as a miscellaneous cause is competent. That said, it is not disputed that the instant application was filed as a miscellaneous application, without a plaint, originating summons or petition. Order 3 Rule 1 of the Civil Procedure Rules is categorical that: “ Every suit shall be instituted by presenting a plaint to the Court, or in such other manner as may be prescribed.” 10. The jurisprudence on this point is settled. In Cresta Investments Ltd v Gulf African Bank Ltd & Another, [2020] KEHC 993 (KLR), Majanja J stated that: “ An application for injunction under Order 40 of the Civil Procedure Rules is predicated on a suit filed by the party seeking the injunction. An injunction without a substantive claim is a plea in vain and cannot lie in law or at all.” 11. The same position was affirmed in Mbugua & Another v Mbugua & 4 Others, [2024] KEHC 2403 (KLR), where the Court held that an injunction can only be issued where there is a substantive suit in place, otherwise it will be in vain. And in Proto Energy Limited v Hashi Energy Limited, [2019] KEHC 12311 (KLR), the Court emphasized that a Notice of Motion is not legally recognized as an originating process and can only be filed within a properly instituted suit. 12. These authorities leave no doubt that injunctive relief cannot be granted in a vacuum. The jurisdiction of the Court is only triggered by the existence of a substantive suit. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13366/eng@2025-09-26 2

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13. The applicant has equally invoked Section 7 of the Arbitration Act, which empowers the Court to grant interim measures of protection “before or during arbitral proceedings.” However, the Arbitration Rules, 1997 provide at Rule 2 that: “ Applications under sections 6 and 7 of the Act shall be made by summons in the suit.” 14. This procedure presupposes either an existing suit or arbitral proceedings. Such jurisdiction is not exercised in the abstract but must be anchored in properly instituted proceedings. The present application, having been commenced as a miscellaneous cause, falls short of this requirement. 15. Moreover, even if the matter were properly before this Court, the prayer for reference to arbitration would still fail. By actively submitting their dispute before this Court and canvassing it through substantive applications, both parties have elected to litigate rather than arbitrate. In doing so, they have waived their right to rely on the arbitration clause. It is a settled principle that a party who voluntarily and consistently participates in litigation cannot thereafter seek to oust the Court’s jurisdiction by invoking an arbitration agreement. Disposition 16. To the extent that the applicant seeks injunctive relief through a miscellaneous application without a substantive suit, the same is procedurally incompetent and fatally defective. The preliminary objection thus succeeds on this point alone. 17. Accordingly, the application dated 26th September 2024 is hereby struck out with costs to the respondent. For the avoidance of doubt, all subsequent proceedings founded upon the said application, including any interlocutory steps taken pursuant thereto, are equally rendered incompetent and are hereby set aside. Orders accordingly. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 26TH DAY OF SEPTEMBER 2025. F. MUGAMBI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13366/eng@2025-09-26 3

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