Jr Miles Construction Ltd v Bomi Engineering and Construction Limited & 1 other

Background 5. From the material placed before Court, the Applicant and the 1st Respondent entered into a Construction Works Agreement for landscaping and planting works. Under the agreement, the Applicant was required to procure an Advance Payment Bond. The Applicant obtained Advance Payment Bond No. 15826 from the 2nd Respondent, naming the 1st Respondent as beneficiary. 6. The Applicant contends that despite its readiness to commence works, the 1st Respondent failed to grant access to the site in time, later issued an intention to terminate the contract, and subsequently demanded payment of Kshs. 9,240,000 under the Bond. 7. The Applicant has invoked the dispute resolution clause and moved to refer the dispute to arbitration. Analysis and determination 9. The issue for determination is whether the Applicant has met the threshold for the grant of interim measures of protection under Section 7 of the Arbitration Act and for the grant of a temporary injunction. 10. Section 7(1) of the Arbitration Act provides: “ It is not incompatible with an arbitration agreement for a party to request from the High Court, before or during arbitral proceedings, an interim measure of protection and for the High Court to grant that measure.” 11. The principles guiding the grant of interim measures under Section 7 were articulated in Safaricom Limited v Ocean View Beach Hotel Limited & 2 Others [2010] eKLR, where the Court of Appeal held that the Court must be satisfied of: 1. The existence of an arbitration agreement. 2. Whether the subject matter of arbitration is under threat. 3. The appropriate measure of protection after an assessment of the merits of the application. 4. The period for which the measure is to be given. 12. The existence of a binding Construction Works Agreement is not disputed on the material before the Court. The Agreement contains clause 28, which provides for the dispute resolution clause. The clause allows parties to negotiate before engaging in arbitration. The Applicant has demonstrated steps taken to invoke arbitration. The demand on the Advance Payment Bond is not controverted. In the absence of any response, the Applicant’s deposition that the 1st Respondent has triggered the Bond stands unchallenged. 13. It is trite that even where an application is unopposed, the Court must be satisfied that the legal threshold has been met. An unopposed application does not automatically succeed. The Court must evaluate whether a prima facie case has been established. 14. On the material presented, the Applicant asserts that delays were attributable to the 1st Respondent’s failure to grant site access and that termination was unlawful. These matters fall squarely within the arbitral domain. However, the immediate threat is the liquidation of the Bond before the determination of the underlying dispute. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2454/eng@2026-02-26 2

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15. If the Bond is honoured, the Applicant will suffer immediate financial depletion and potential reputational harm. The arbitral proceedings would be rendered nugatory to that extent. Preservation of the status quo is therefore necessary to safeguard the integrity of the arbitral process. 16. In the Safaricom and Ocean View Beach case (supra), the Court of Appeal emphasized that interim protection is intended to preserve the subject matter pending arbitration. That principle squarely applies in the present circumstances. The Respondents, despite being afforded the opportunity, elected not to contest the application. The factual depositions, therefore, remain uncontroverted. 17. I am satisfied that the Applicant has satisfied the threshold for the grant of an interim measure of protection to preserve the efficacy of arbitration. 18. For the foregoing reasons, the Applicant's application dated 29th May 2024 succeeds. I make the following orders: i. A temporary injunction is hereby issued restraining the 1st Respondent from recovering or making any further claim arising from Advance Payment Bond No. 15826 pending the hearing and determination of the intended arbitration. ii. A temporary injunction is hereby issued restraining the 2nd Respondent from honouring the demand by the 1st Respondent under Advance Payment Bond No. 15826 pending the hearing and determination of the intended arbitration. iii. Costs of the application shall be in the arbitration. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 26TH DAY OF FEBRUARY 2026. P.M. MULWA JUDGE In the presence of: Mr. Sarara for Applicant Mr. Ochola for 2nd Respondent Court Assistant: Carlos https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2454/eng@2026-02-26 3

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