1. Before the Court is the Chamber Summons dated 10th December 2025 brought under Section 7 of the Arbitration Act, 1995, Rule 3 of the Arbitration Rules, 1997, Article 159(2)(c) of the Constitution, Sections 1A, 1B, and 3A of the Civil Procedure Act, and all other enabling provisions of the law. The applicant seeks interim measures restraining the respondent from excluding it from official project communication channels, meetings, documentation, and decision-making processes relating to projects governed by the Teaming Agreement dated 2nd August 2024. The applicant further seeks orders restraining the respondent from establishing parallel communication structures or dealing with jointly developed intellectual property, including proposals, curricula, concept notes and training materials, without the applicant’s written consent. In addition, the applicant seeks an order referring the dispute to arbitration pursuant to Clause 7 of the said Teaming Agreement.
2. The application is supported by the affidavit of Alice Kimani, sworn on 10th December 2025. Ms. Kimani deposes that the applicant and the respondent entered into a Teaming Agreement on 2nd August 2024 for the purposes of collaborating in bidding for and implementing consultancy projects. According to her, the parties successfully executed several projects under the arrangement and shared revenues equally. She states that, in furtherance of the collaboration, she was made a signatory to a joint bank account used for project transactions. She further avers that the parties jointly developed and submitted bids for various projects under the NYOTA programme and that she played a substantial role in proposal preparation and project development.
3. Ms. Kimani contends that the respondent has since unlawfully excluded the applicant from the joint venture by diverting project funds from the joint account, implementing NYOTA projects without the applicant’s participation, excluding the applicant from meetings and official communications, and denying it participation in consultancy roles previously agreed upon. She further states that the respondent intends to remove her as a signatory to the joint account through what she terms an irregular process, with the aim of denying the applicant access to project funds and benefits accruing therefrom. She maintains that despite previous correspondence, including acknowledgements by the respondent’s advocates regarding the applicant’s role in the NYOTA project, the exclusion persists.
4. Ms. Kimani avers that the respondent’s conduct amounts to a breach of the agreement and exposes the applicant to irreparable harm, including financial loss, dissipation of assets and loss of oversight over joint funds, thereby rendering any eventual arbitral award nugatory. She maintains that the dispute falls within the arbitration clause of the Teaming Agreement and that the applicant has established a strong prima facie case warranting the grant of interim protection.
5. The application is opposed through the replying affidavit sworn on 18th December 2025 by Josephine Ng’ethe, a director of the respondent. Ms. Ng’ethe deposes that while discussions regarding collaboration began in March 2024, the arrangement related only to a specific KCB Foundation project. She disputes the validity of the purported Teaming Agreement dated 2nd August 2024 on the ground that the applicant company had not yet been incorporated and therefore lacked the legal capacity to contract. She further states that later draft agreements were never mutually executed and had been altered unilaterally by the applicant’s director.
6. Ms. Ng’ethe nevertheless acknowledges that the parties collaborated on several projects and shared proceeds under different arrangements, some on a 50:50 basis and others on commission. She, however, maintains that these collaborations arose from separate understandings and not from any overarching binding agreement. She explains that the applicant’s director was merely introduced as an agent to the respondent’s bank account for limited project purposes and was never a partner, shareholder or director of the respondent. With respect to the NYOTA projects, she avers that the respondent independently secured the contracts and only engaged the applicant’s director in a limited consultancy capacity relating to proposal preparation, for which she was duly compensated.
7. Ms. Ng’ethe further deposes that the collaboration between the parties ceased in September 2025 following disagreements regarding project implementation and cost-sharing. She denies allegations of exclusion, diversion of funds or misuse of intellectual property and maintains that the respondent solely owns and controls its bank account and project operations. She contends that the applicant has failed to establish a prima facie case because its claim is founded on an invalid agreement and that any alleged loss is purely financial and compensable by damages. She further argues that the grant of injunctive orders would prejudice the respondent in the implementation of ongoing government projects.
8. In response, the applicant filed a supplementary affidavit sworn on 2nd January 2026 by Alice Kimani. She disputes the respondent’s contention that the Teaming Agreement is invalid for want of incorporation and describes that argument as misleading. She avers that the parties’ relationship originated from a pre-teaming arrangement pending formalization and that the agreement was subsequently revised after project awards, including through proposals by the respondent’s own advocates aimed at regularizing the arrangement following incorporation. She maintains that the conduct of the parties, including joint project execution, equal sharing of revenues, operation of a joint bank account and joint proposal development, demonstrates the existence and ratification of a binding teaming arrangement.
9. Ms. Kimani further disputed the respondent’s characterization of the relationship as one of agency or consultancy and instead maintains that the parties operated a joint venture involving shared control, joint financial contributions, co-authorship of proposals and shared risks and profits. She contends that the respondent’s attempt to reclassify her role as that of a consultant only arose after efforts to exclude the applicant from the NYOTA projects. She also reiterates that the joint account was established for transparency and joint management of project funds and that attempts to remove her as a signatory amount to bad faith and breach of fiduciary obligations.
10. The respondent filed a further affidavit sworn on 16th January 2026 by Josephine Ng’ethe, reiterating that the applicant lacked legal capacity to contract as at August 2024. She maintains that any earlier arrangement was between the respondent and the applicant’s director in her personal capacity and that no binding Teaming Agreement was ever executed between the parties herein. She further disputes the existence of a joint venture and maintains that all bids were submitted solely in the respondent’s name. According to her, any financial contribution by the applicant was merely a temporary advance that was later refunded.
11. Ms. Ng’ethe further maintained that the applicant was only offered a consultancy role in relation to the NYOTA project and that any materials shared with the applicant were post-submission documents rather than jointly developed intellectual property. She contends that in the absence of a valid Teaming Agreement there can be no breach of contract or fiduciary duty. She further argues that any claim by the applicant relates to a quantifiable share of profits and is therefore compensable by damages.
12. The application was canvassed by way of written submissions. The applicant’s submissions were filed on 5th January 2026 by LAK Advocates while the respondent’s submissions were filed on 16th January 2026 by KNM Law Associates LLP.
13. Counsel for the applicant, submitted that a binding contract may arise not only through formal execution but also from the conduct of the parties. Relying on Section 2 of the Law of Contract Act and the decisions in Ali Abdi Mohamed v Kenya Shell & Company Limited [2017] KECA 590 (KLR) and RTS Flexible Systems Ltd v Molkerei Alois Müller GmbH & Co KG [2010] UKSC 14, counsel argued that the parties’ conduct objectively demonstrated the existence of a binding Teaming Agreement. Reference was made to the parties’ collaboration in project implementation, operation of a joint account, joint proposal development and sharing of profits as evidence of contractual intention and ratification.
14. Counsel further invoked the doctrine of estoppel under Section 120 of the Evidence Act and the decision in Carol Construction Engineers Limited & another v National Bank of Kenya [2019] KEHC 95 (KLR), arguing that the respondent is estopped from denying the existence of the agreement after inducing reliance by the applicant. It was submitted that the applicant has satisfied the principles for grant of an injunction as set out in Giella v Cassman Brown & Co Ltd [1973] EA 358 and has established a prima facie case within the meaning of Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR). Counsel also argued that the applicant faces irreparable harm through dissipation of joint funds, misuse of intellectual property and loss of goodwill. Counsel urged the Court to preserve the status quo pending arbitration pursuant to Section 7 of the Arbitration Act.
15. On behalf of the respondent, it was submitted that the applicant’s case is fundamentally defective because the purported Teaming Agreement was executed before the applicant company came into existence. Counsel relied on Melt Grand Ltd v Bio Foods Products Ltd [2024] KEHC and argued that a valid contract requires offer, acceptance and consideration, none of which were established. She further submitted, relying on Salomon v Salomon & Co Ltd [1897] AC 22, that a company acquires legal personality only upon incorporation and therefore cannot be bound by pre-incorporation contracts. According to counsel, the only valid arrangement was between the respondent and Ms. Kimani in her personal capacity.
16. Counsel further submitted that the applicant failed to establish the existence of a joint venture or any financial contribution beyond a temporary VAT advance that was refunded. Relying on Antony Francis Wareham t/a AF Wareham & 2 others v Kenya Post Office Savings Bank [2004] KECA 166 (KLR), she argued that the applicant had failed to discharge the requisite evidentiary burden. She further contended that the applicant had failed to satisfy the Giella principles as any alleged loss is purely financial and compensable by damages. Counsel also invoked Section 6 of the Arbitration Act and the decision in Niazsons (K) Ltd v China Road & Bridge Corporation Kenya [2001] KECA 376 (KLR) and submitted that referral to arbitration is only possible where a valid arbitration agreement exists, which, in her view, is absent in this case.
Analysis and Determination
17. Upon consideration of the instant application, the grounds on its face, the affidavits filed in support thereof, the replying and further affidavits filed by the respondent, and the written submissions by Counsel for the parties, the issues that arise for determination are –
i. Whether the applicant has made out a case warranting referral of the dispute herein to arbitration; and
ii. Whether the applicant has made out a case for the grant of the interim reliefs sought.
Whether the applicant has made out a case warranting referral of the dispute herein to arbitration
18. This Court’s jurisdiction to refer disputes to arbitration is derived from Section 6 of the Arbitration Act No. 4 of 1995, which provides as follows: -
“(1). A court before which proceedings are brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than the time when that party enters appearance or otherwise acknowledges the claim against which the stay of proceedings is sought, stay the proceedings and refer the parties to arbitration unless it finds –
(a) that the arbitration agreement is null and void, inoperative, or incapable of being performed; or
(b) that there is not in fact any dispute between the parties with regard to the matters agreed to be referred to arbitration.
(2) Proceedings before the court shall not be continued after an application under subsection (1) has been made and the matter remains undetermined.
(3) If the court declines to stay legal proceedings, any provision of the arbitration agreement to the effect that an award is a condition precedent to the bringing of legal proceedings in respect of any matter is of no effect in relation to those proceedings.”
19. The Court’s obligation when moved under the above provision has been settled in several decisions. In Niazsons (K) Ltd v China Road & Bridge Corporation Kenya [2001] KECA 376 (KLR), the Court of Appeal held that –
“All that an applicant for a stay of proceedings under section 6(1) of the Arbitration Act of 1995 is obliged to do is to bring his application promptly. The court will then be obligated to consider the threshold things:
(a) Whether the applicant has taken any step in the proceedings other than the steps allowed by the section;
(b) Whether there are any legal impediments on the validity, operation or performance of the arbitration agreement; and
(c) Whether the suit intended concerned a matter agreed to be referred to arbitration.”
20. It is now settled that referral of a dispute to arbitration is dependent upon the existence of a valid and enforceable arbitration agreement binding upon the parties. In the absence of such an agreement, the Court lacks a legal basis upon which it may stay proceedings or compel parties to arbitrate.
21. The applicant’s case is substantially anchored on an alleged Teaming Agreement dated 2nd August 2024. Upon perusal of the document annexed to the affidavits herein, it is apparent that the said agreement was not executed by the parties. Its authenticity and binding effect are therefore seriously contested. It is further not disputed that the applicant company was incorporated on 11th December 2024. Consequently, at the time of the alleged agreement, the applicant lacked legal existence and capacity to contract.
22. The respondent, on the other hand, exhibited a teaming agreement dated 2nd August 2024 executed between itself and Alice Kimani in her personal capacity. The principle of separate corporate personality established in Salomon v Salomon & Co Ltd [1897] AC 22 is settled law. A company acquires legal personality only upon incorporation and cannot, prior thereto, enter into binding contractual relations in its own name.
23. The applicant nevertheless urged the Court to find that a binding agreement arose through the conduct of the parties and subsequent ratification. It is indeed correct that a contract may, in appropriate circumstances, be inferred from conduct. In RTS Flexible Systems Ltd v Molkerei Alois Müller GmbH [2010] UKSC 14, cited with approval by the Court of Appeal in Ali Abdi Mohamed v Kenya Shell & Company Limited [2017] KECA 590 (KLR), Lord Clarke stated that –
“The general principles are not in doubt. Whether there was a binding contract between the parties and if so, upon what terms depends upon what they have agreed. It depends not upon their subjective state of mind, but upon a consideration of what was communicated between them by words or conduct, and whether that leads objectively to a conclusion that they intended to create legal relations and had agreed upon all the terms which they regarded or the law requires as essential for the formation of legally binding relations. Even if certain terms of economic or other significance have not been finalised, an objective appraisal of their words and conduct may lead to the conclusion that they did not intend agreement of such terms to be a precondition to a concluded and legally binding agreement.”
24. Similarly, in Abdulkadir Shariff Abdirahim & Abdinarsir Abdirahim Mohammed T/A S. Abdirahim Enterprises v Awo Shariff Mohammed T/A A. S. Mohammed Investments [2013] KECA 59 (KLR), the Court of Appeal affirmed that agreements need not invariably be in writing unless specifically required by statute. The Court stated as follows:
“There is no general rule of law that all agreements must be in writing. The numerous advantages of a written agreement notwithstanding, all that the law requires is that certain specific agreements must be in writing or witnessed by some written note or memorandum.”
25. However, those principles cannot cure a fundamental defect of legal capacity. A contract cannot arise in favour of a non-existent legal entity. While parties may subsequently adopt or novate pre-incorporation arrangements after incorporation, no such fresh or duly executed agreement has been demonstrated before this Court.
26. Further, Section 4(2) of the Arbitration Act expressly requires an arbitration agreement to be in writing. Unlike ordinary contractual obligations which may in certain circumstances be inferred from conduct, an arbitration agreement must be expressly evidenced in writing. Consequently, even if the Court were to infer some form of commercial arrangement from the parties’ conduct, such inference would not suffice to create a valid arbitration agreement within the meaning of the Arbitration Act.
27. The applicant also invoked the doctrine of estoppel. However, estoppel cannot be used to create a statutory arbitration agreement where none exists in law.
28. The evidence placed before the Court further demonstrates that the prior dealings between the parties related to specific projects involving the respondent and Alice Kimani in her personal capacity. Those transactions appear to have been undertaken and concluded independently. They cannot, without more, be elevated into an overarching contractual framework binding upon a subsequently incorporated company.
29. Accordingly, in the absence of a valid and enforceable arbitration agreement, the arbitration clause contained in the alleged Teaming Agreement cannot stand independently. This position is consistent with the holding in Niazsons (K) Ltd v China Road & Bridge Corporation Kenya (supra), that referral to arbitration is contingent upon the existence of a valid arbitration agreement.
30. In the circumstances, I find that the applicant has failed to establish the existence of a valid and enforceable arbitration agreement capable of binding the parties herein. Consequently, the prayer seeking referral of the dispute to arbitration cannot succeed.
Whether the applicant has made out a case for the grant of the interim reliefs sought
31. The applicant seeks interim orders restraining the respondent from excluding it from project communication channels, meetings, documentation, and decision-making processes relating to projects allegedly governed by the Teaming Agreement dated 2nd August 2024, and from dealing with allegedly jointly developed intellectual property.
32. The Court’s jurisdiction to issue interim measures of protection pending arbitration is derived from Section 7 of the Arbitration Act which provides that –
“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.”
33. The principles governing applications under Section 7 were articulated by the Court of Appeal in Safaricom Limited v Ocean View Beach Hotel Limited & 2 others [2010] KECA 346 (KLR) as follows –
“Under our system of law on arbitration the essentials which the court must take into account before issuing interim measures of protection are:
i. The existence of an arbitration agreement.
ii. Whether the subject matter of arbitration is under threat.
iii. In the special circumstances, what is the appropriate measure of protection after assessment of the merits of the application.
iv. For what period must the measure be granted…”
34. It is not disputed that the applicant’s prayer for interim protection is anchored upon the same alleged Teaming Agreement dated 2nd August 2024. This Court has already found that the applicant has failed to demonstrate, even on a prima facie basis, the existence of a valid and enforceable arbitration agreement between the parties.
35. The existence of such an agreement is a foundational requirement for the invocation of the Court’s jurisdiction under Section 7 of the Arbitration Act. In the absence of that threshold, the Court cannot properly grant interim measures in aid of an arbitral process whose legal basis has not been established.
36. Even assuming, however, that an arbitration relationship existed, the applicant would still be required to demonstrate that the subject matter is under real and imminent threat requiring urgent preservation. The applicant alleges exclusion from communications, diversion of funds, and misuse of intellectual property. Those allegations are, however, vigorously disputed by the respondent, which maintains that the parties merely collaborated on specific projects under separate arrangements involving Alice Kimani in her personal capacity.
37. At the interlocutory stage, the Court must exercise caution and avoid making definitive findings on contested matters of fact. Applying that standard, I am not persuaded that the applicant has demonstrated a clear proprietary or contractual interest warranting preservation through injunctive relief.
38. The applicant’s grievances substantially relate to alleged exclusion from ongoing commercial operations and denial of participation in project management structures. Such claims, if ultimately established, appear capable of quantification in damages and do not disclose exceptional circumstances rendering damages an inadequate remedy.
39. The claim relating to intellectual property is equally unparticularised. No identifiable proprietary rights, registration, or specific legal interest has been demonstrated beyond broad assertions of joint authorship. Courts have consistently declined to grant interlocutory injunctions founded upon vague or unsubstantiated claims of intellectual property rights.
40. Further, the respondent has demonstrated that the orders sought would interfere with ongoing project implementation involving time-sensitive obligations to third parties. Courts are generally reluctant to issue orders that would compel parties to continue a disputed commercial relationship under judicial supervision. Interlocutory relief is intended to preserve rights, not to create or enforce contested business arrangements.
41. I am equally not persuaded that the balance of convenience tilts in favour of the applicant. The applicant seeks reinstatement into management and financial structures whose legal basis remains disputed, while the respondent continues to discharge ongoing contractual obligations requiring operational autonomy. In my view, the prejudice likely to be suffered by the respondent outweighs the speculative prejudice alleged by the applicant.
42. It is also noteworthy that several of the orders sought are, in substance, mandatory rather than preservatory. Orders compelling inclusion in management structures, participation in financial decision-making, and access to project communications would effectively determine substantive rights at an interlocutory stage. It is trite that mandatory interlocutory injunctions are granted only in the clearest of cases, which is not the case herein.
43. Having found that the applicant has not established, even prima facie, the existence of the alleged joint venture or enforceable arbitration agreement, it would be inappropriate for this Court to issue interim orders predicated upon such disputed legal relationship.
44. Accordingly, I find that the applicant has failed to make out a case warranting the grant of the interim reliefs sought.
45. The upshot is that the Chamber Summons application dated 10th December 2025 is without merit and is hereby dismissed with costs to the respondent.
46. It is so ordered.
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 21ST DAY OF MAY 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the Presence of:
Moses C/A
Kibet h/b for Lumallas………………for the Applicant
Ms. Wairegi for Mungania……………for the Respondent
2. The application is supported by the affidavit of Alice Kimani, sworn on 10th December 2025. Ms. Kimani deposes that the applicant and the respondent entered into a Teaming Agreement on 2nd August 2024 for the purposes of collaborating in bidding for and implementing consultancy projects. According to her, the parties successfully executed several projects under the arrangement and shared revenues equally. She states that, in furtherance of the collaboration, she was made a signatory to a joint bank account used for project transactions. She further avers that the parties jointly developed and submitted bids for various projects under the NYOTA programme and that she played a substantial role in proposal preparation and project development.
3. Ms. Kimani contends that the respondent has since unlawfully excluded the applicant from the joint venture by diverting project funds from the joint account, implementing NYOTA projects without the applicant’s participation, excluding the applicant from meetings and official communications, and denying it participation in consultancy roles previously agreed upon. She further states that the respondent intends to remove her as a signatory to the joint account through what she terms an irregular process, with the aim of denying the applicant access to project funds and benefits accruing therefrom. She maintains that despite previous correspondence, including acknowledgements by the respondent’s advocates regarding the applicant’s role in the NYOTA project, the exclusion persists.
4. Ms. Kimani avers that the respondent’s conduct amounts to a breach of the agreement and exposes the applicant to irreparable harm, including financial loss, dissipation of assets and loss of oversight over joint funds, thereby rendering any eventual arbitral award nugatory. She maintains that the dispute falls within the arbitration clause of the Teaming Agreement and that the applicant has established a strong prima facie case warranting the grant of interim protection.
5. The application is opposed through the replying affidavit sworn on 18th December 2025 by Josephine Ng’ethe, a director of the respondent. Ms. Ng’ethe deposes that while discussions regarding collaboration began in March 2024, the arrangement related only to a specific KCB Foundation project. She disputes the validity of the purported Teaming Agreement dated 2nd August 2024 on the ground that the applicant company had not yet been incorporated and therefore lacked the legal capacity to contract. She further states that later draft agreements were never mutually executed and had been altered unilaterally by the applicant’s director.
6. Ms. Ng’ethe nevertheless acknowledges that the parties collaborated on several projects and shared proceeds under different arrangements, some on a 50:50 basis and others on commission. She, however, maintains that these collaborations arose from separate understandings and not from any overarching binding agreement. She explains that the applicant’s director was merely introduced as an agent to the respondent’s bank account for limited project purposes and was never a partner, shareholder or director of the respondent. With respect to the NYOTA projects, she avers that the respondent independently secured the contracts and only engaged the applicant’s director in a limited consultancy capacity relating to proposal preparation, for which she was duly compensated.
7. Ms. Ng’ethe further deposes that the collaboration between the parties ceased in September 2025 following disagreements regarding project implementation and cost-sharing. She denies allegations of exclusion, diversion of funds or misuse of intellectual property and maintains that the respondent solely owns and controls its bank account and project operations. She contends that the applicant has failed to establish a prima facie case because its claim is founded on an invalid agreement and that any alleged loss is purely financial and compensable by damages. She further argues that the grant of injunctive orders would prejudice the respondent in the implementation of ongoing government projects.
8. In response, the applicant filed a supplementary affidavit sworn on 2nd January 2026 by Alice Kimani. She disputes the respondent’s contention that the Teaming Agreement is invalid for want of incorporation and describes that argument as misleading. She avers that the parties’ relationship originated from a pre-teaming arrangement pending formalization and that the agreement was subsequently revised after project awards, including through proposals by the respondent’s own advocates aimed at regularizing the arrangement following incorporation. She maintains that the conduct of the parties, including joint project execution, equal sharing of revenues, operation of a joint bank account and joint proposal development, demonstrates the existence and ratification of a binding teaming arrangement.
9. Ms. Kimani further disputed the respondent’s characterization of the relationship as one of agency or consultancy and instead maintains that the parties operated a joint venture involving shared control, joint financial contributions, co-authorship of proposals and shared risks and profits. She contends that the respondent’s attempt to reclassify her role as that of a consultant only arose after efforts to exclude the applicant from the NYOTA projects. She also reiterates that the joint account was established for transparency and joint management of project funds and that attempts to remove her as a signatory amount to bad faith and breach of fiduciary obligations.
10. The respondent filed a further affidavit sworn on 16th January 2026 by Josephine Ng’ethe, reiterating that the applicant lacked legal capacity to contract as at August 2024. She maintains that any earlier arrangement was between the respondent and the applicant’s director in her personal capacity and that no binding Teaming Agreement was ever executed between the parties herein. She further disputes the existence of a joint venture and maintains that all bids were submitted solely in the respondent’s name. According to her, any financial contribution by the applicant was merely a temporary advance that was later refunded.
11. Ms. Ng’ethe further maintained that the applicant was only offered a consultancy role in relation to the NYOTA project and that any materials shared with the applicant were post-submission documents rather than jointly developed intellectual property. She contends that in the absence of a valid Teaming Agreement there can be no breach of contract or fiduciary duty. She further argues that any claim by the applicant relates to a quantifiable share of profits and is therefore compensable by damages.
12. The application was canvassed by way of written submissions. The applicant’s submissions were filed on 5th January 2026 by LAK Advocates while the respondent’s submissions were filed on 16th January 2026 by KNM Law Associates LLP.
13. Counsel for the applicant, submitted that a binding contract may arise not only through formal execution but also from the conduct of the parties. Relying on Section 2 of the Law of Contract Act and the decisions in Ali Abdi Mohamed v Kenya Shell & Company Limited [2017] KECA 590 (KLR) and RTS Flexible Systems Ltd v Molkerei Alois Müller GmbH & Co KG [2010] UKSC 14, counsel argued that the parties’ conduct objectively demonstrated the existence of a binding Teaming Agreement. Reference was made to the parties’ collaboration in project implementation, operation of a joint account, joint proposal development and sharing of profits as evidence of contractual intention and ratification.
14. Counsel further invoked the doctrine of estoppel under Section 120 of the Evidence Act and the decision in Carol Construction Engineers Limited & another v National Bank of Kenya [2019] KEHC 95 (KLR), arguing that the respondent is estopped from denying the existence of the agreement after inducing reliance by the applicant. It was submitted that the applicant has satisfied the principles for grant of an injunction as set out in Giella v Cassman Brown & Co Ltd [1973] EA 358 and has established a prima facie case within the meaning of Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR). Counsel also argued that the applicant faces irreparable harm through dissipation of joint funds, misuse of intellectual property and loss of goodwill. Counsel urged the Court to preserve the status quo pending arbitration pursuant to Section 7 of the Arbitration Act.
15. On behalf of the respondent, it was submitted that the applicant’s case is fundamentally defective because the purported Teaming Agreement was executed before the applicant company came into existence. Counsel relied on Melt Grand Ltd v Bio Foods Products Ltd [2024] KEHC and argued that a valid contract requires offer, acceptance and consideration, none of which were established. She further submitted, relying on Salomon v Salomon & Co Ltd [1897] AC 22, that a company acquires legal personality only upon incorporation and therefore cannot be bound by pre-incorporation contracts. According to counsel, the only valid arrangement was between the respondent and Ms. Kimani in her personal capacity.
16. Counsel further submitted that the applicant failed to establish the existence of a joint venture or any financial contribution beyond a temporary VAT advance that was refunded. Relying on Antony Francis Wareham t/a AF Wareham & 2 others v Kenya Post Office Savings Bank [2004] KECA 166 (KLR), she argued that the applicant had failed to discharge the requisite evidentiary burden. She further contended that the applicant had failed to satisfy the Giella principles as any alleged loss is purely financial and compensable by damages. Counsel also invoked Section 6 of the Arbitration Act and the decision in Niazsons (K) Ltd v China Road & Bridge Corporation Kenya [2001] KECA 376 (KLR) and submitted that referral to arbitration is only possible where a valid arbitration agreement exists, which, in her view, is absent in this case.
Analysis and Determination
17. Upon consideration of the instant application, the grounds on its face, the affidavits filed in support thereof, the replying and further affidavits filed by the respondent, and the written submissions by Counsel for the parties, the issues that arise for determination are –
i. Whether the applicant has made out a case warranting referral of the dispute herein to arbitration; and
ii. Whether the applicant has made out a case for the grant of the interim reliefs sought.
Whether the applicant has made out a case warranting referral of the dispute herein to arbitration
18. This Court’s jurisdiction to refer disputes to arbitration is derived from Section 6 of the Arbitration Act No. 4 of 1995, which provides as follows: -
“(1). A court before which proceedings are brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than the time when that party enters appearance or otherwise acknowledges the claim against which the stay of proceedings is sought, stay the proceedings and refer the parties to arbitration unless it finds –
(a) that the arbitration agreement is null and void, inoperative, or incapable of being performed; or
(b) that there is not in fact any dispute between the parties with regard to the matters agreed to be referred to arbitration.
(2) Proceedings before the court shall not be continued after an application under subsection (1) has been made and the matter remains undetermined.
(3) If the court declines to stay legal proceedings, any provision of the arbitration agreement to the effect that an award is a condition precedent to the bringing of legal proceedings in respect of any matter is of no effect in relation to those proceedings.”
19. The Court’s obligation when moved under the above provision has been settled in several decisions. In Niazsons (K) Ltd v China Road & Bridge Corporation Kenya [2001] KECA 376 (KLR), the Court of Appeal held that –
“All that an applicant for a stay of proceedings under section 6(1) of the Arbitration Act of 1995 is obliged to do is to bring his application promptly. The court will then be obligated to consider the threshold things:
(a) Whether the applicant has taken any step in the proceedings other than the steps allowed by the section;
(b) Whether there are any legal impediments on the validity, operation or performance of the arbitration agreement; and
(c) Whether the suit intended concerned a matter agreed to be referred to arbitration.”
20. It is now settled that referral of a dispute to arbitration is dependent upon the existence of a valid and enforceable arbitration agreement binding upon the parties. In the absence of such an agreement, the Court lacks a legal basis upon which it may stay proceedings or compel parties to arbitrate.
21. The applicant’s case is substantially anchored on an alleged Teaming Agreement dated 2nd August 2024. Upon perusal of the document annexed to the affidavits herein, it is apparent that the said agreement was not executed by the parties. Its authenticity and binding effect are therefore seriously contested. It is further not disputed that the applicant company was incorporated on 11th December 2024. Consequently, at the time of the alleged agreement, the applicant lacked legal existence and capacity to contract.
22. The respondent, on the other hand, exhibited a teaming agreement dated 2nd August 2024 executed between itself and Alice Kimani in her personal capacity. The principle of separate corporate personality established in Salomon v Salomon & Co Ltd [1897] AC 22 is settled law. A company acquires legal personality only upon incorporation and cannot, prior thereto, enter into binding contractual relations in its own name.
23. The applicant nevertheless urged the Court to find that a binding agreement arose through the conduct of the parties and subsequent ratification. It is indeed correct that a contract may, in appropriate circumstances, be inferred from conduct. In RTS Flexible Systems Ltd v Molkerei Alois Müller GmbH [2010] UKSC 14, cited with approval by the Court of Appeal in Ali Abdi Mohamed v Kenya Shell & Company Limited [2017] KECA 590 (KLR), Lord Clarke stated that –
“The general principles are not in doubt. Whether there was a binding contract between the parties and if so, upon what terms depends upon what they have agreed. It depends not upon their subjective state of mind, but upon a consideration of what was communicated between them by words or conduct, and whether that leads objectively to a conclusion that they intended to create legal relations and had agreed upon all the terms which they regarded or the law requires as essential for the formation of legally binding relations. Even if certain terms of economic or other significance have not been finalised, an objective appraisal of their words and conduct may lead to the conclusion that they did not intend agreement of such terms to be a precondition to a concluded and legally binding agreement.”
24. Similarly, in Abdulkadir Shariff Abdirahim & Abdinarsir Abdirahim Mohammed T/A S. Abdirahim Enterprises v Awo Shariff Mohammed T/A A. S. Mohammed Investments [2013] KECA 59 (KLR), the Court of Appeal affirmed that agreements need not invariably be in writing unless specifically required by statute. The Court stated as follows:
“There is no general rule of law that all agreements must be in writing. The numerous advantages of a written agreement notwithstanding, all that the law requires is that certain specific agreements must be in writing or witnessed by some written note or memorandum.”
25. However, those principles cannot cure a fundamental defect of legal capacity. A contract cannot arise in favour of a non-existent legal entity. While parties may subsequently adopt or novate pre-incorporation arrangements after incorporation, no such fresh or duly executed agreement has been demonstrated before this Court.
26. Further, Section 4(2) of the Arbitration Act expressly requires an arbitration agreement to be in writing. Unlike ordinary contractual obligations which may in certain circumstances be inferred from conduct, an arbitration agreement must be expressly evidenced in writing. Consequently, even if the Court were to infer some form of commercial arrangement from the parties’ conduct, such inference would not suffice to create a valid arbitration agreement within the meaning of the Arbitration Act.
27. The applicant also invoked the doctrine of estoppel. However, estoppel cannot be used to create a statutory arbitration agreement where none exists in law.
28. The evidence placed before the Court further demonstrates that the prior dealings between the parties related to specific projects involving the respondent and Alice Kimani in her personal capacity. Those transactions appear to have been undertaken and concluded independently. They cannot, without more, be elevated into an overarching contractual framework binding upon a subsequently incorporated company.
29. Accordingly, in the absence of a valid and enforceable arbitration agreement, the arbitration clause contained in the alleged Teaming Agreement cannot stand independently. This position is consistent with the holding in Niazsons (K) Ltd v China Road & Bridge Corporation Kenya (supra), that referral to arbitration is contingent upon the existence of a valid arbitration agreement.
30. In the circumstances, I find that the applicant has failed to establish the existence of a valid and enforceable arbitration agreement capable of binding the parties herein. Consequently, the prayer seeking referral of the dispute to arbitration cannot succeed.
Whether the applicant has made out a case for the grant of the interim reliefs sought
31. The applicant seeks interim orders restraining the respondent from excluding it from project communication channels, meetings, documentation, and decision-making processes relating to projects allegedly governed by the Teaming Agreement dated 2nd August 2024, and from dealing with allegedly jointly developed intellectual property.
32. The Court’s jurisdiction to issue interim measures of protection pending arbitration is derived from Section 7 of the Arbitration Act which provides that –
“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.”
33. The principles governing applications under Section 7 were articulated by the Court of Appeal in Safaricom Limited v Ocean View Beach Hotel Limited & 2 others [2010] KECA 346 (KLR) as follows –
“Under our system of law on arbitration the essentials which the court must take into account before issuing interim measures of protection are:
i. The existence of an arbitration agreement.
ii. Whether the subject matter of arbitration is under threat.
iii. In the special circumstances, what is the appropriate measure of protection after assessment of the merits of the application.
iv. For what period must the measure be granted…”
34. It is not disputed that the applicant’s prayer for interim protection is anchored upon the same alleged Teaming Agreement dated 2nd August 2024. This Court has already found that the applicant has failed to demonstrate, even on a prima facie basis, the existence of a valid and enforceable arbitration agreement between the parties.
35. The existence of such an agreement is a foundational requirement for the invocation of the Court’s jurisdiction under Section 7 of the Arbitration Act. In the absence of that threshold, the Court cannot properly grant interim measures in aid of an arbitral process whose legal basis has not been established.
36. Even assuming, however, that an arbitration relationship existed, the applicant would still be required to demonstrate that the subject matter is under real and imminent threat requiring urgent preservation. The applicant alleges exclusion from communications, diversion of funds, and misuse of intellectual property. Those allegations are, however, vigorously disputed by the respondent, which maintains that the parties merely collaborated on specific projects under separate arrangements involving Alice Kimani in her personal capacity.
37. At the interlocutory stage, the Court must exercise caution and avoid making definitive findings on contested matters of fact. Applying that standard, I am not persuaded that the applicant has demonstrated a clear proprietary or contractual interest warranting preservation through injunctive relief.
38. The applicant’s grievances substantially relate to alleged exclusion from ongoing commercial operations and denial of participation in project management structures. Such claims, if ultimately established, appear capable of quantification in damages and do not disclose exceptional circumstances rendering damages an inadequate remedy.
39. The claim relating to intellectual property is equally unparticularised. No identifiable proprietary rights, registration, or specific legal interest has been demonstrated beyond broad assertions of joint authorship. Courts have consistently declined to grant interlocutory injunctions founded upon vague or unsubstantiated claims of intellectual property rights.
40. Further, the respondent has demonstrated that the orders sought would interfere with ongoing project implementation involving time-sensitive obligations to third parties. Courts are generally reluctant to issue orders that would compel parties to continue a disputed commercial relationship under judicial supervision. Interlocutory relief is intended to preserve rights, not to create or enforce contested business arrangements.
41. I am equally not persuaded that the balance of convenience tilts in favour of the applicant. The applicant seeks reinstatement into management and financial structures whose legal basis remains disputed, while the respondent continues to discharge ongoing contractual obligations requiring operational autonomy. In my view, the prejudice likely to be suffered by the respondent outweighs the speculative prejudice alleged by the applicant.
42. It is also noteworthy that several of the orders sought are, in substance, mandatory rather than preservatory. Orders compelling inclusion in management structures, participation in financial decision-making, and access to project communications would effectively determine substantive rights at an interlocutory stage. It is trite that mandatory interlocutory injunctions are granted only in the clearest of cases, which is not the case herein.
43. Having found that the applicant has not established, even prima facie, the existence of the alleged joint venture or enforceable arbitration agreement, it would be inappropriate for this Court to issue interim orders predicated upon such disputed legal relationship.
44. Accordingly, I find that the applicant has failed to make out a case warranting the grant of the interim reliefs sought.
45. The upshot is that the Chamber Summons application dated 10th December 2025 is without merit and is hereby dismissed with costs to the respondent.
46. It is so ordered.
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 21ST DAY OF MAY 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the Presence of:
Moses C/A
Kibet h/b for Lumallas………………for the Applicant
Ms. Wairegi for Mungania……………for the Respondent