1. The Plaintiff herein filed an application under Section 7 of the Arbitration Act and Order 40 Rules 1, 2 and 3 of the Civil Procedure Rules dated 4th May 2026 seeking: -
(a) Spent
(b) Spent
(c) Spent
(d) Spent
(e) AN INTERIM MEASURE OF PROTECTION do issue under section 7 of the Arbitration Act, No. 4 of 1995 (as against the 1st Defendant/Respondent) and AN INTERLOCUTORY INJUNCTION do issue under Order 40 of the Civil Procedure Rules, 2010 (as against the 2nd to 6th Defendants/Respondents) restraining all the said Defendants/Respondents jointly and severally from giving effect to, acting upon, implementing or in any manner enforcing the Notice of Termination dated 22nd April 2026 or any further or similar notice of termination founded on any alleged failure by the Plaintiff/Applicant to provide the Performance Bond pursuant to clause 10.2 of the Subcontract.
(f) AN INTERIM MEASURE OF PROTECTION do issue under section 7 of the Arbitration Act, No. 4 of 1995 (as against the 1st Defendant/Respondent) and AN INTERLOCUTORY INJUNCTION do issue under Order 40 of the Civil Procedure Rules, 2010 (as against the 2nd to 6th Defendants/Respondents) restraining all the said Defendants/Respondents jointly and severally from interfering with the Plaintiff/Applicant's peaceable performance of the Subcontract, including denial of access to the Project Site, removal of the Plaintiff/Applicant's plant, equipment, materials or personnel therefrom, withholding of certified payments, and engagement of any replacement contractor.
(g) A MANDATORY INTERIM MEASURE OF PROTECTION do issue under section 7 of the Arbitration Act, No. 4 of 1995 (as against the 1st Defendant/Respondent) and A MANDATORY INTERLOCUTORY INJUNCTION do issue under Order 40 of the Civil Procedure Rules,2010 (as against the 2nd to 6th Defendants/Respondents) compelling the 1st to 6th Defendants/Respondents jointly and severally, within fourteen (14) days of the date of the order made herein, to deliver to the Plaintiff/Applicant a certified true copy (or, where the said Defendants/Respondents claim confidentiality, a certified extract sufficient to demonstrate the matters set out below) of:
(a)the Main Contract for the Project (Contract No.KURA/DEV/HQ/321/2023-2024) executed between the 7th Defendant/Respondent and the Consortium;
(b) the Letter of Award issued by the 7th Defendant/Respondent in respect of the Project;
(c) the Joint Venture Agreement, Consortium Agreement or equivalent constitutive instrument under which the Consortium holds the Main Contract; and
(d) such other documentation, certified by the 1st Defendant/Respondent and countersigned by the 2nd to 6th Defendants/Respondents, as is necessary to enable the Plaintiff/Applicant's commercial bankers to issue the Performance Bond required under clause 10.2 of the Subcontract.
(h) In the event of default by the 1st to 6th Defendants/Respondents in compliance with the order made under prayer 7 above, AN ORDER do issue directing the 7th Defendant/Respondent to make available to the Plaintiff/Applicant a certified true copy of the Main Contract held in its custody, the costs whereof to be borne by the 1st to 6th Defendants/Respondents jointly and severally.
(i) Costs of this application be provided for and be paid by the 1st to 6th Defendants/Respondents jointly and severally.
(j) Such further and other relief as this Honourable Court may deem just and expedient to grant.
2. The Plaintiff/Applicant’s case is grounded on both jurisdictional and substantive bases arising from the Subcontract Agreement dated 25th September 2025 between the Plaintiff/Applicant and the 1st Defendant/Respondent. The Plaintiff/Applicant relies on clause 24 of the Subcontract Agreement which provides for arbitration of disputes in Seoul under the Rules of the Korean Commercial Arbitration Board (KCAB) , while expressly preserving, under. clause 24.7, the right of either party to seek urgent injunctive or interlocutory relief before Kenyan courts pending arbitration.
3. In that regard, the Applicant invokes section 7 of the Arbitration Act, No. 4 of 1995, which empowers the Court to grant interim measures of protection pending arbitral proceedings. The Applicant indicates its intention to commence arbitration proceedings before the KCAB including filing an Emergency Arbitrator Application within seven days and maintains that the present proceedings are supportive of, rather than contrary to, the agreed dispute resolution mechanism.
4. The Applicant further contend that the claim against 2nd to 6th Defendants/Respondents who are not parties to the arbitration agreement, properly fall within the jurisdiction of this court. These include allegations of misrepresentation and violations of the Competition Act, No. 12 of 2010,particularly under sections 55, 57 and 70A of the Competition Act which are argued to be non-arbitrable and reserved for determination by the court and the Competition Authority of Kenya. Consequently, Order 40 of the Civil Procedure Rules is invoked as an alternative jurisdictional basis for the interim relief sought.
5. On the substantive issues, the Applicant asserts that it was ready and willing to perform its contractual obligations under the Subcontract, including the provision of the Performance Bond required under clause 10.2. but was prevented from doing so by the 1st Defendant/Respondent’s failure to provide the Main Contract documentation required by its bankers. The Applicant therefore argued that any default was induced by the 1st Defendant/Respondent’s own breach of clause 2.4 of the Subcontract.
6. The Applicant challenges the termination of the Subcontract by notice dated 22nd April 2026, contending that it was unjustified and retaliatory having been issued shortly after the applicant raised concerns regarding the main contractor’s consortium structure. It further contends that the 1st Defendant Respondent’s prior attempt to terminate the contract on similar ground had been withdrawn and that continued performance and payment over several months amounted to waiver of right to terminate on that basis.
7. Additionally, the Applicant disputes the 1st Defendant/Respondent’s authority to unilaterally terminate the Subcontract asserting that the Main Contractor’s rights were jointly held by the consortium comprising the 1st to 6th Defendants/Respondents, whose existence was allegedly concealed. It is therefore argued that termination without the concurrence of the co-consortium members was invalid.
8. The Applicant contends that unless the orders sought are granted, it will suffer irreparable harm, including eviction from the project site, financial loss, loss of equipment, and reputational damage that cannot adequately be compensated by damages.
9. In support of the application for interim measures of protection, under section 7 of the Arbitration Act, the Applicant submits that it satisfies the applicable four limb test. It argues that there exists a serious dispute involving issues such as induced breach, waiver, retaliatory termination, lack of authority, misrepresentation and contraventions of the Competition Act.
10. The Applicant further contends that it will suffer irreparable harm not compensable by damages if relief is denied, and that the balance of convenience favours preservation of the status quo particularly in light of the Respondent’s prior conduct of affirmation of the Subcontract and existing security arrangements. It maintains that the orders sought are preservatory in nature and do not encroach upon the arbitral tribunal’s mandate.
11. In respect to the claims against the 2nd and 6th respondents, the applicant relies on the principles in Giella v Cassman Brown & Co Ltd under Order 40 of the Civil Procedure Rules. It also urges that the mandatory injunction sought, requiring provision of the Main Contract documents, meets the higher threshold for such relief, as articulated in Locabail International Finance Ltd v Agroexport (The Sea Hawk) and adopted by Kenyan courts, since the order merely seeks enforcement of an existing contractual obligation under clause 2.4 of the Subcontract.
12. The Application is opposed by the Respondents. The 7th Respondent filed a replying affidavit sworn on 7th May 2026 while the 1st Defendant/Respondent filed a response sworn on 9th May 2026 together with a Preliminary Objection dated on 9th May 2026 on behalf of the 1st to 6th Defendants/Respondents .The Preliminary Objection seeks orders that the suit and application be struck out or stayed pending arbitration, that interim orders granted on 6th May 2026 be vacated, that the parties be referred to arbitration in accordance with Clause 24 of the Subcontract, and that costs be awarded to the Respondents.
13. The central thrust of the preliminary objection is that this court lacks jurisdiction by virtue of the arbitration clause in Clause 24 of the Subcontract, which mandates referral of all disputes arising from the agreement to arbitration before the Korean Commercial Arbitration Board (KCAB) in Seoul.
14. The Respondents argue that the dispute, being contractual in nature, falls squarely within the scope of the arbitration agreement, which the Applicant has itself acknowledged. They contend that the Court’s jurisdiction under Section 7 of the Arbitration Act is limited to interim preservatory measures and does not extend to determining substantive contractual rights.
15. It is further argued that the Applicant improperly seeks final and declaratory reliefs, thereby exceeding the permissible scope of interim intervention and encroaching on the arbitral tribunal’s jurisdiction. The Respondents also maintain that the Applicant has attempted to circumvent arbitration by framing contractual disputes as tortious or statutory claims, contrary to the doctrine of kompetenz-kompetenz and the principle of party autonomy.
16. Additionally, the Respondents contend that the claims under the Competition Act are misconceived, as the dispute concerns a commercial subcontract between corporate entities and does not disclose any actionable statutory violation. They further assert that the joinder of the 2nd to 6th Respondents, who are not parties to the Subcontract or arbitration agreement, violates the doctrine of privity.
17. The Respondents also argue that the Applicant was aware of the consortium structure of the project and cannot rely on alleged misrepresentation to found jurisdiction. They contend that the suit amounts to an abuse of process, as it invites parallel proceedings despite the Applicant’s stated intention to commence arbitration.
18. Finally, the Respondents submit that the suit is defective for failure to properly plead damages and that judicial intervention at this stage would prejudice a public infrastructure project, thereby undermining public interest considerations.
19. In response to the Preliminary Objection, the Plaintiff’s/Applicant through a supplementary Affidavit sworn on 11th May 2026 contends that the Preliminary Objection does not meet the legal threshold of a competent preliminary objection as set out in the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. The Plaintiff argues that a proper preliminary objection must raise a pure point of law, based on uncontested facts apparent on the pleadings and be capable of disposing of the matter.
20. It is contended that the Respondents’ objection is founded on contested factual issues, including whether the dispute falls within the arbitration clause, whether the 2nd to 6th Defendants were properly joined, whether the Plaintiff had knowledge of the consortium structure, whether there were violations of the Competition Act, and whether loss was properly pleaded. According to the Plaintiff, these are matters requiring evidentiary examination, and therefore cannot properly be determined through a preliminary objection. The Plaintiff further maintained that a preliminary objection could not be used as a mechanism for litigating disputed facts under the guise of pure points of law and therefore urged the Court to dismiss the objection as incompetent.
21. On the arbitration, the Plaintiff argues that the Respondents had failed to comply with Section 6 of the Arbitration Act and Rule 2 of the Arbitration Rules. It is submitted that referral to arbitration requires a formal application for stay of proceedings, made at the earliest opportunity. The Plaintiff contends that the 1st Defendant, having filed a replying affidavit addressing the merits without seeking such stay, has taken steps in the proceedings and cannot rely on the arbitration clause at this stage.
22. Consequently, the Plaintiff maintains that this court retains jurisdiction and remains properly seized of the matter and ought to proceed with hearing and determining both the Notice of Motion and the substantive suit and that the request to strike out the suit or refer the dispute to arbitration is procedurally incompetent.
23. The Plaintiff also took issue with the conduct of the 7th Defendant, the Kenya Urban Roads Authority (KURA), arguing that it was joined only for the limited purpose compliance with disclosure orders relating to the Main Contract for the Nairobi Intelligent Transport System Project. The Plaintiff contended that despite acknowledging that limited role, the 7th Respondent has improperly engaged with the substantive issues concerning the merits of the dispute.
24. Accordingly, the Plaintiff prays that the Preliminary Objection be dismissed with costs, that the interim orders in force be extended, and that the Court proceeds to hear both the application and the substantive suit before the court.
25. This court directed that the preliminary objection be canvassed first by way of written submissions. The 1st to 6th Defendants/Respondents and the 7th Defendant/Respondent filed submissions in support of the Preliminary Objection both dated 12th May 2026 while the Plaintiff filed his submissions dated 14th May 2026.
Plaintiff’s submissions
26. The Plaintiff opposed the Preliminary Objection dated 9th May 2026 arguing that it is both procedurally defective and substantively misconceived. It submits that, apart from the 1st Defendant, the other Defendants are not parties to the arbitration agreement and therefore lack standing to rely on the arbitration clause. Further, the Plaintiff contends that the suit raises statutory and public policy issues, particularly under the Competition Act, 2010 which fall outside the scope of arbitration.
27. On Procedure, the Plaintiff argues that the Arbitration Act and the Arbitration Rules prescribe an exclusive mechanism for invoking an arbitration agreement, that is, an application for stay under section 6(1) of the Arbitration Act and rule 2 of the Arbitration Rules rather than through a Preliminary Objection.
28. It submits that a Preliminary Objection is not a proper procedure for seeking referral to arbitration. Reliance is placed on authorities such as Niazsons (K) Ltd v China Road & Bridge Corporation, Mt Kenya University v Step Up Holding (K) Ltd, and Total Security Surveillance Ltd v Oil Field Movers Ltd, which emphasize strict compliance with Section 6.
29. The Plaintiff further argues that by filing a Preliminary Objection that goes beyond jurisdiction and engages the merits of the dispute, the 1st Defendant has submitted to the Court’s jurisdiction and thereby waived its right to arbitration. It relies on Yooshin Engineering Corporation v AIA Architects Ltd and Charles Njogu Lofty v Bedouin Enterprises Ltd to support the position that a party cannot simultaneously challenge jurisdiction and argue substantive issues.
30. The Plaintiff additionally argues that Article 159 of the Constitution cannot cure the procedural defects in the Preliminary Objection. Reliance is again placed on CM & A Logistics Limited v Upland Premium Diaries and Foods Limited [2022] KEHC 14428 (KLR) where the Court held that Article 159 cannot override the mandatory provisions of the Arbitration Act and that a party invoking arbitration must strictly comply with the statutory framework.
31. The Plaintiff further submits that the Preliminary Objection does not meet the Mukisa Biscuit threshold because it raises contested factual matters requiring evidence and judicial interrogation. These includes questions relating to authority to bind the consortium; the Plaintiff’s knowledge of the other Defendants, the nature of the claims and validity and scope of the arbitration agreement. Such issues, it argues, require factual inquiry and evidentiary determination. Reliance is placed on Scania Credit Solutions (PTY) Limited v Matunda (Fruits) Bus Services Limited [2022] KEHC 16591 (KLR).
32. The Plaintiff also challenges the operability of the arbitration clause, arguing that clause 24 of the Subcontract is pathological and incapable of proper performance. The Plaintiff points out that clause 24.3 simultaneously invokes the Rules of the Korean Commercial Arbitration Board and Article 30(2)(b) of the ICC Rules, thereby creating uncertainty as to the applicable arbitral framework and procedure. The Plaintiff also argues that clause 24.6 improperly purports to create a right of appeal on points of law against an arbitral award despite no such right existing under the Korean Arbitration Act. Additionally, clauses 24.1 and 24.2 establish a multi-tier dispute resolution process involving negotiation and mediation in Korea but fail to provide clear procedures for transitioning between those stages. The Plaintiff also notes that the Subcontract contains multiple references to a non-existent “clause 0,” thereby rendering the arbitration framework incoherent and unworkable. The Plaintiff nevertheless points out that clause 24.7 expressly preserves the right of parties to seek urgent injunctive or interlocutory relief before Kenyan courts pending arbitration, thereby justifying the present proceedings under section 7 of the Arbitration Act.
33. With respect to the 2nd to 6th Defendants, the Plaintiff submits that they are strangers, non-signatories to the Subcontract and arbitration agreement and cannot invoke the arbitration clause. It maintains that the claims against them arise independently in tort, agency, statutory misrepresentation, and under Competition Act, and are therefore outside the arbitration framework. The Plaintiff also argues that to the extent the Defendants rely on agency, consortium or undisclosed principal theories to invoke arbitration, those matters themselves raise factual disputes unsuitable for determination through a Preliminary Objection.
34. Regarding arbitrability, the Plaintiff argues that claims under sections 55, 57 and 70A of the Competition Act establish statutory causes of action that cannot properly be referred to a private arbitral tribunal seated in Seoul and must be determined by the Court. The Plaintiff therefore argues that the statutory claims are inherently non-arbitrable.
35. Finally, on the interim orders issued on 6th May 2026, the Plaintiff submits that section 7 of the Arbitration Act expressly empowers the Court to grant interim measures of protection before or during arbitration proceedings. The Plaintiff argues that because the parties expressly preserved recourse to Kenyan courts under clause 24.7 and because the parties, assets and subject matter are situated in Kenya, the interim jurisdiction of the Kenyan courts remains intact notwithstanding that the seat of arbitration is Seoul. The Plaintiff therefore urges the Court to sustain the interim orders pending determination of both the Notice of Motion and the suit itself.
36. The Plaintiff concludes that the Preliminary Objection is incompetent, procedurally defective, and fails on the law, having been improperly brought, raising contested factual issues, and invoked by parties lacking standing. It therefore urges the Court to and to sustain the interim orders issued on 6th May 2026 pending determination of the suit.
1st to 6th Defendant’s/Respondents submissions
37. The 1st to 6th Defendants/Respondents submit that the Plaintiff’s suit and application are incompetent as they contravene the binding arbitration clause (Clause 24) in the Subcontract Agreement dated 25th September 2025. They argue that all disputes arising out of or in connection with the contract—including issues of interpretation, performance, breach, and termination—are expressly reserved for final and binding arbitration before the Korean Commercial Arbitration Board (KCAB) in Seoul. Despite this, the Plaintiff improperly invoked the jurisdiction of the High Court while simultaneously seeking substantive relief reserved for arbitral determination.
38. The Respondents further contended that the joinder the 2nd to 6th Respondents was improper, as they are not parties to the Subcontract Agreement. They argued that this offends the doctrine of privity of contract and cannot sustain any legally recognizable cause of action against them. They maintained that the dispute, as outlined even in the Plaintiff’s own pleadings revolved around termination of the subcontract, contractual administration, technical compliance disputes, performance obligations, delays and contractual enforcement issues, all of which squarely fell within the arbitration clause.
39. The 1st to 6th Respondents framed three issues for determination, that is, whether this Honourable court lacks jurisdiction to entertain the suit and application by virtue of Clause 24 of the subcontract agreement and Section 6 of the Arbitration Act; whether the Applicant’s claims fall within the scope of Clause 24 of the subcontract agreement and whether the joinder of the 2nd to 6th Respondents violates the doctrine of privity of contract.
40. On the issue of jurisdiction, the Respondents argue that Section 6 of the Arbitration Act imposed a mandatory obligation upon courts to stay proceedings and refer disputes to arbitration where the dispute fell within the scope of a valid arbitration agreement unless the agreement was shown to be null, void, inoperative, or incapable of being performed. They emphasized that the Plaintiff had neither challenged the validity of Clause 24 nor demonstrated that it was incapable of performance. Instead, the Plaintiff was attempting to avoid arbitration by disguising contractual disputes as tortious misrepresentation and statutory claims.
41. The Respondents rejected the Plaintiff’s contention that a stay under Section 6 of the Arbitration Act could only be sought through a formal Chamber Summons application. They argued that the substance of their Preliminary Objection raised a pure jurisdictional issue founded on the existence of a binding arbitration agreement and that jurisdiction could be raised at any stage of proceedings. In support of that proposition, they relied heavily on the decision in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1 asserting that once a court determines that it lacks jurisdiction, it must immediately down its tools.
42. The Respondents also relied on the Court of Appeal decision in Safaricom Limited v Ocean View Beach Hotel Limited & 2 Others [2010] KECA 346 (KLR) which emphasized that courts must exercise restraint and respect party autonomy and the doctrine of kompetenz-kompetenz, leaving disputes agreed for arbitration to the arbitral tribunal.
43. On the scope of arbitration clause, the Respondents submitted that Clause 24 is broadly framed to cover disputes “arising out of or in connection with” the Subcontract Agreement. They argued that such wording had consistently received wide and purposive interpretation from courts to ensure that parties were held to their chosen dispute resolution mechanism. They argued that all the Plaintiff’s grievances related to termination, contractual administration, technical compliance, performance obligations, delays, certification disputes, and enforcement of contractual obligations under the subcontract, are inherently contractual and therefore subject to arbitration.
44. The Respondents maintained that the Plaintiff cannot circumvent arbitration by recharacterizing fundamentally contractual disputes as tort claims, statutory violations, competition law breaches, or public law grievances. In support of that position, the Respondents relied on Muruthi & 3 Others v Thiongo & Another [2025] KEHC 3423 (KLR) which emphasized that allegations framed as extending beyond the contractual framework did not automatically displace a binding arbitration agreement where the dispute remained substantially rooted in the contractual relationship between the parties. Also relied upon were the cases of Talent Academy v Embu High School Limited [2025] KEHC 8992 (KLR) and Ventura Aviation Limited v Skylink Express Limited & Another [2023] KEHC 19133 (KLR).
45. The Respondents further submitted that the public nature of the project does not alter the essentially private commercial character of the dispute, which remains governed by the contractual framework and is therefore fully arbitrable.
46. On the third issue the joinder of the 2nd to 6th Respondents, the Respondents submit that the claims against them were legally untenable because they were founded upon a contract to which those Respondents were neither signatories nor parties. They relied on the doctrine of privity of contract as a pure point of law capable of determination through a preliminary objection. In support, they relied on the Supreme Court decision in Charo v Mwashetani & 3 Others [2014] KESC 5 (KLR) where the Supreme Court adopted the principles in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. The Respondents maintain that the Court was not being asked to ascertain disputed facts but merely to determine whether non-signatories could properly be sued under the Subcontract Agreement.
47. The Respondents further relied on the Court of Appeal decision in Agricultural Finance Corporation v Lengetia Limited & Jack Mwangi [1985] KLR where the Court affirmed that contracts generally affect only the parties to them and cannot ordinarily be enforced by or against strangers to the contract. They also cited Kenya National Capital Corporation Ltd v Albert Mario Cordeiro & Another [2014] KECA 775 (KLR).
48. They contend that allegations of consortium arrangements, agency, or undisclosed principals were unsupported by evidence and could not establish contractual liability against non-signatories.
49. The Respondents also relied on Bandari Development Company Limited & Another v Trustees of the Kenya Ports Authority Pension Scheme [2023] KEHC 27612 (KLR) and Rana Auto Selection Limited v Kanyoro & Another [2026] KEHC 4 (KLR).
50. In conclusion, the Respondents submit that the suit is an attempt to circumvent the arbitration agreement, improperly confer jurisdiction before the Court and undermined party autonomy and settled principles of contractual privity. Consequently, the Respondents urge the Court to uphold the Preliminary Objection, strike out or stay the suit and Notice of Motion and refer the parties to arbitration strictly in accordance with Clause 24 of the Subcontract Agreement.
7th Respondent’s submissions
51. The 7th Respondent (KURA) submitted that it is a State Corporation responsible for managing and maintaining urban trunk roads and acts as the Employer for the Nairobi Intelligent Transport System (ITS) Project Phase I, a public infrastructure project funded through a bilateral arrangement with the Korean Export-Import Bank. It stated that the Plaintiff was engaged as a subcontractor for the Traffic Management Centre component. Following the Plaintiff’s alleged failure to provide a mandatory Performance Bond, the 1st Respondent issued a termination notice dated 22nd April 2026, prompting the Plaintiff to seek interim relief, which the Court granted temporarily under Section 7 of the Arbitration Act.
52. KURA supported the Preliminary Objection dated 9th May 2026 and opposed the grant of injunctive relief on the grounds of lack of jurisdiction, public interest and the Plaintiff’s alleged non-compliance with mandatory contractual obligations. It identified four issues for determination that is whether the court has jurisdiction to determine the substantive dispute; whether the Plaintiff has established a case for the grant of a temporary injunction; whether a party in breach of mandatory statutory or contractual conditions can seek protective orders from the court and who should bear the costs.
53. On jurisdiction, the 7th respondent adopted the submissions made by the 1st to 6th Respondents arguing that Clause 24 of the Subcontract mandates arbitration before the KCAB in Seoul, thereby ousting the Court’s jurisdiction. It emphasized that under Section 6 of the Arbitration Act, the Court must refer disputes to arbitration where a valid arbitration agreement exists, and that its role under Section 7 is limited strictly to interim preservatory measures, not determination of substantive issues such as the validity of termination.
54. The 7th Respondent further submitted that interim relief is not automatic and must meet established legal thresholds. It urged that, the Plaintiff’s attempt to bypass arbitration by framing its claims as tortious misrepresentation and Competition Act violations was an impermissible attempt to override the parties’ clear intention to arbitrate disputes.
55. Regarding the second issue, the 7th Respondent submits that the Plaintiff failed to satisfy the three-part test established in Giella v Cassman Brown & Co. Ltd [1973] EA 358. It argued first that the Plaintiff had failed to establish a prima facie case with a probability of success because the Plaintiff was in admitted breach for failing to furnish the mandatory Performance Bond which KURA described as a prerequisite condition
[...truncated]
(a) Spent
(b) Spent
(c) Spent
(d) Spent
(e) AN INTERIM MEASURE OF PROTECTION do issue under section 7 of the Arbitration Act, No. 4 of 1995 (as against the 1st Defendant/Respondent) and AN INTERLOCUTORY INJUNCTION do issue under Order 40 of the Civil Procedure Rules, 2010 (as against the 2nd to 6th Defendants/Respondents) restraining all the said Defendants/Respondents jointly and severally from giving effect to, acting upon, implementing or in any manner enforcing the Notice of Termination dated 22nd April 2026 or any further or similar notice of termination founded on any alleged failure by the Plaintiff/Applicant to provide the Performance Bond pursuant to clause 10.2 of the Subcontract.
(f) AN INTERIM MEASURE OF PROTECTION do issue under section 7 of the Arbitration Act, No. 4 of 1995 (as against the 1st Defendant/Respondent) and AN INTERLOCUTORY INJUNCTION do issue under Order 40 of the Civil Procedure Rules, 2010 (as against the 2nd to 6th Defendants/Respondents) restraining all the said Defendants/Respondents jointly and severally from interfering with the Plaintiff/Applicant's peaceable performance of the Subcontract, including denial of access to the Project Site, removal of the Plaintiff/Applicant's plant, equipment, materials or personnel therefrom, withholding of certified payments, and engagement of any replacement contractor.
(g) A MANDATORY INTERIM MEASURE OF PROTECTION do issue under section 7 of the Arbitration Act, No. 4 of 1995 (as against the 1st Defendant/Respondent) and A MANDATORY INTERLOCUTORY INJUNCTION do issue under Order 40 of the Civil Procedure Rules,2010 (as against the 2nd to 6th Defendants/Respondents) compelling the 1st to 6th Defendants/Respondents jointly and severally, within fourteen (14) days of the date of the order made herein, to deliver to the Plaintiff/Applicant a certified true copy (or, where the said Defendants/Respondents claim confidentiality, a certified extract sufficient to demonstrate the matters set out below) of:
(a)the Main Contract for the Project (Contract No.KURA/DEV/HQ/321/2023-2024) executed between the 7th Defendant/Respondent and the Consortium;
(b) the Letter of Award issued by the 7th Defendant/Respondent in respect of the Project;
(c) the Joint Venture Agreement, Consortium Agreement or equivalent constitutive instrument under which the Consortium holds the Main Contract; and
(d) such other documentation, certified by the 1st Defendant/Respondent and countersigned by the 2nd to 6th Defendants/Respondents, as is necessary to enable the Plaintiff/Applicant's commercial bankers to issue the Performance Bond required under clause 10.2 of the Subcontract.
(h) In the event of default by the 1st to 6th Defendants/Respondents in compliance with the order made under prayer 7 above, AN ORDER do issue directing the 7th Defendant/Respondent to make available to the Plaintiff/Applicant a certified true copy of the Main Contract held in its custody, the costs whereof to be borne by the 1st to 6th Defendants/Respondents jointly and severally.
(i) Costs of this application be provided for and be paid by the 1st to 6th Defendants/Respondents jointly and severally.
(j) Such further and other relief as this Honourable Court may deem just and expedient to grant.
2. The Plaintiff/Applicant’s case is grounded on both jurisdictional and substantive bases arising from the Subcontract Agreement dated 25th September 2025 between the Plaintiff/Applicant and the 1st Defendant/Respondent. The Plaintiff/Applicant relies on clause 24 of the Subcontract Agreement which provides for arbitration of disputes in Seoul under the Rules of the Korean Commercial Arbitration Board (KCAB) , while expressly preserving, under. clause 24.7, the right of either party to seek urgent injunctive or interlocutory relief before Kenyan courts pending arbitration.
3. In that regard, the Applicant invokes section 7 of the Arbitration Act, No. 4 of 1995, which empowers the Court to grant interim measures of protection pending arbitral proceedings. The Applicant indicates its intention to commence arbitration proceedings before the KCAB including filing an Emergency Arbitrator Application within seven days and maintains that the present proceedings are supportive of, rather than contrary to, the agreed dispute resolution mechanism.
4. The Applicant further contend that the claim against 2nd to 6th Defendants/Respondents who are not parties to the arbitration agreement, properly fall within the jurisdiction of this court. These include allegations of misrepresentation and violations of the Competition Act, No. 12 of 2010,particularly under sections 55, 57 and 70A of the Competition Act which are argued to be non-arbitrable and reserved for determination by the court and the Competition Authority of Kenya. Consequently, Order 40 of the Civil Procedure Rules is invoked as an alternative jurisdictional basis for the interim relief sought.
5. On the substantive issues, the Applicant asserts that it was ready and willing to perform its contractual obligations under the Subcontract, including the provision of the Performance Bond required under clause 10.2. but was prevented from doing so by the 1st Defendant/Respondent’s failure to provide the Main Contract documentation required by its bankers. The Applicant therefore argued that any default was induced by the 1st Defendant/Respondent’s own breach of clause 2.4 of the Subcontract.
6. The Applicant challenges the termination of the Subcontract by notice dated 22nd April 2026, contending that it was unjustified and retaliatory having been issued shortly after the applicant raised concerns regarding the main contractor’s consortium structure. It further contends that the 1st Defendant Respondent’s prior attempt to terminate the contract on similar ground had been withdrawn and that continued performance and payment over several months amounted to waiver of right to terminate on that basis.
7. Additionally, the Applicant disputes the 1st Defendant/Respondent’s authority to unilaterally terminate the Subcontract asserting that the Main Contractor’s rights were jointly held by the consortium comprising the 1st to 6th Defendants/Respondents, whose existence was allegedly concealed. It is therefore argued that termination without the concurrence of the co-consortium members was invalid.
8. The Applicant contends that unless the orders sought are granted, it will suffer irreparable harm, including eviction from the project site, financial loss, loss of equipment, and reputational damage that cannot adequately be compensated by damages.
9. In support of the application for interim measures of protection, under section 7 of the Arbitration Act, the Applicant submits that it satisfies the applicable four limb test. It argues that there exists a serious dispute involving issues such as induced breach, waiver, retaliatory termination, lack of authority, misrepresentation and contraventions of the Competition Act.
10. The Applicant further contends that it will suffer irreparable harm not compensable by damages if relief is denied, and that the balance of convenience favours preservation of the status quo particularly in light of the Respondent’s prior conduct of affirmation of the Subcontract and existing security arrangements. It maintains that the orders sought are preservatory in nature and do not encroach upon the arbitral tribunal’s mandate.
11. In respect to the claims against the 2nd and 6th respondents, the applicant relies on the principles in Giella v Cassman Brown & Co Ltd under Order 40 of the Civil Procedure Rules. It also urges that the mandatory injunction sought, requiring provision of the Main Contract documents, meets the higher threshold for such relief, as articulated in Locabail International Finance Ltd v Agroexport (The Sea Hawk) and adopted by Kenyan courts, since the order merely seeks enforcement of an existing contractual obligation under clause 2.4 of the Subcontract.
12. The Application is opposed by the Respondents. The 7th Respondent filed a replying affidavit sworn on 7th May 2026 while the 1st Defendant/Respondent filed a response sworn on 9th May 2026 together with a Preliminary Objection dated on 9th May 2026 on behalf of the 1st to 6th Defendants/Respondents .The Preliminary Objection seeks orders that the suit and application be struck out or stayed pending arbitration, that interim orders granted on 6th May 2026 be vacated, that the parties be referred to arbitration in accordance with Clause 24 of the Subcontract, and that costs be awarded to the Respondents.
13. The central thrust of the preliminary objection is that this court lacks jurisdiction by virtue of the arbitration clause in Clause 24 of the Subcontract, which mandates referral of all disputes arising from the agreement to arbitration before the Korean Commercial Arbitration Board (KCAB) in Seoul.
14. The Respondents argue that the dispute, being contractual in nature, falls squarely within the scope of the arbitration agreement, which the Applicant has itself acknowledged. They contend that the Court’s jurisdiction under Section 7 of the Arbitration Act is limited to interim preservatory measures and does not extend to determining substantive contractual rights.
15. It is further argued that the Applicant improperly seeks final and declaratory reliefs, thereby exceeding the permissible scope of interim intervention and encroaching on the arbitral tribunal’s jurisdiction. The Respondents also maintain that the Applicant has attempted to circumvent arbitration by framing contractual disputes as tortious or statutory claims, contrary to the doctrine of kompetenz-kompetenz and the principle of party autonomy.
16. Additionally, the Respondents contend that the claims under the Competition Act are misconceived, as the dispute concerns a commercial subcontract between corporate entities and does not disclose any actionable statutory violation. They further assert that the joinder of the 2nd to 6th Respondents, who are not parties to the Subcontract or arbitration agreement, violates the doctrine of privity.
17. The Respondents also argue that the Applicant was aware of the consortium structure of the project and cannot rely on alleged misrepresentation to found jurisdiction. They contend that the suit amounts to an abuse of process, as it invites parallel proceedings despite the Applicant’s stated intention to commence arbitration.
18. Finally, the Respondents submit that the suit is defective for failure to properly plead damages and that judicial intervention at this stage would prejudice a public infrastructure project, thereby undermining public interest considerations.
19. In response to the Preliminary Objection, the Plaintiff’s/Applicant through a supplementary Affidavit sworn on 11th May 2026 contends that the Preliminary Objection does not meet the legal threshold of a competent preliminary objection as set out in the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. The Plaintiff argues that a proper preliminary objection must raise a pure point of law, based on uncontested facts apparent on the pleadings and be capable of disposing of the matter.
20. It is contended that the Respondents’ objection is founded on contested factual issues, including whether the dispute falls within the arbitration clause, whether the 2nd to 6th Defendants were properly joined, whether the Plaintiff had knowledge of the consortium structure, whether there were violations of the Competition Act, and whether loss was properly pleaded. According to the Plaintiff, these are matters requiring evidentiary examination, and therefore cannot properly be determined through a preliminary objection. The Plaintiff further maintained that a preliminary objection could not be used as a mechanism for litigating disputed facts under the guise of pure points of law and therefore urged the Court to dismiss the objection as incompetent.
21. On the arbitration, the Plaintiff argues that the Respondents had failed to comply with Section 6 of the Arbitration Act and Rule 2 of the Arbitration Rules. It is submitted that referral to arbitration requires a formal application for stay of proceedings, made at the earliest opportunity. The Plaintiff contends that the 1st Defendant, having filed a replying affidavit addressing the merits without seeking such stay, has taken steps in the proceedings and cannot rely on the arbitration clause at this stage.
22. Consequently, the Plaintiff maintains that this court retains jurisdiction and remains properly seized of the matter and ought to proceed with hearing and determining both the Notice of Motion and the substantive suit and that the request to strike out the suit or refer the dispute to arbitration is procedurally incompetent.
23. The Plaintiff also took issue with the conduct of the 7th Defendant, the Kenya Urban Roads Authority (KURA), arguing that it was joined only for the limited purpose compliance with disclosure orders relating to the Main Contract for the Nairobi Intelligent Transport System Project. The Plaintiff contended that despite acknowledging that limited role, the 7th Respondent has improperly engaged with the substantive issues concerning the merits of the dispute.
24. Accordingly, the Plaintiff prays that the Preliminary Objection be dismissed with costs, that the interim orders in force be extended, and that the Court proceeds to hear both the application and the substantive suit before the court.
25. This court directed that the preliminary objection be canvassed first by way of written submissions. The 1st to 6th Defendants/Respondents and the 7th Defendant/Respondent filed submissions in support of the Preliminary Objection both dated 12th May 2026 while the Plaintiff filed his submissions dated 14th May 2026.
Plaintiff’s submissions
26. The Plaintiff opposed the Preliminary Objection dated 9th May 2026 arguing that it is both procedurally defective and substantively misconceived. It submits that, apart from the 1st Defendant, the other Defendants are not parties to the arbitration agreement and therefore lack standing to rely on the arbitration clause. Further, the Plaintiff contends that the suit raises statutory and public policy issues, particularly under the Competition Act, 2010 which fall outside the scope of arbitration.
27. On Procedure, the Plaintiff argues that the Arbitration Act and the Arbitration Rules prescribe an exclusive mechanism for invoking an arbitration agreement, that is, an application for stay under section 6(1) of the Arbitration Act and rule 2 of the Arbitration Rules rather than through a Preliminary Objection.
28. It submits that a Preliminary Objection is not a proper procedure for seeking referral to arbitration. Reliance is placed on authorities such as Niazsons (K) Ltd v China Road & Bridge Corporation, Mt Kenya University v Step Up Holding (K) Ltd, and Total Security Surveillance Ltd v Oil Field Movers Ltd, which emphasize strict compliance with Section 6.
29. The Plaintiff further argues that by filing a Preliminary Objection that goes beyond jurisdiction and engages the merits of the dispute, the 1st Defendant has submitted to the Court’s jurisdiction and thereby waived its right to arbitration. It relies on Yooshin Engineering Corporation v AIA Architects Ltd and Charles Njogu Lofty v Bedouin Enterprises Ltd to support the position that a party cannot simultaneously challenge jurisdiction and argue substantive issues.
30. The Plaintiff additionally argues that Article 159 of the Constitution cannot cure the procedural defects in the Preliminary Objection. Reliance is again placed on CM & A Logistics Limited v Upland Premium Diaries and Foods Limited [2022] KEHC 14428 (KLR) where the Court held that Article 159 cannot override the mandatory provisions of the Arbitration Act and that a party invoking arbitration must strictly comply with the statutory framework.
31. The Plaintiff further submits that the Preliminary Objection does not meet the Mukisa Biscuit threshold because it raises contested factual matters requiring evidence and judicial interrogation. These includes questions relating to authority to bind the consortium; the Plaintiff’s knowledge of the other Defendants, the nature of the claims and validity and scope of the arbitration agreement. Such issues, it argues, require factual inquiry and evidentiary determination. Reliance is placed on Scania Credit Solutions (PTY) Limited v Matunda (Fruits) Bus Services Limited [2022] KEHC 16591 (KLR).
32. The Plaintiff also challenges the operability of the arbitration clause, arguing that clause 24 of the Subcontract is pathological and incapable of proper performance. The Plaintiff points out that clause 24.3 simultaneously invokes the Rules of the Korean Commercial Arbitration Board and Article 30(2)(b) of the ICC Rules, thereby creating uncertainty as to the applicable arbitral framework and procedure. The Plaintiff also argues that clause 24.6 improperly purports to create a right of appeal on points of law against an arbitral award despite no such right existing under the Korean Arbitration Act. Additionally, clauses 24.1 and 24.2 establish a multi-tier dispute resolution process involving negotiation and mediation in Korea but fail to provide clear procedures for transitioning between those stages. The Plaintiff also notes that the Subcontract contains multiple references to a non-existent “clause 0,” thereby rendering the arbitration framework incoherent and unworkable. The Plaintiff nevertheless points out that clause 24.7 expressly preserves the right of parties to seek urgent injunctive or interlocutory relief before Kenyan courts pending arbitration, thereby justifying the present proceedings under section 7 of the Arbitration Act.
33. With respect to the 2nd to 6th Defendants, the Plaintiff submits that they are strangers, non-signatories to the Subcontract and arbitration agreement and cannot invoke the arbitration clause. It maintains that the claims against them arise independently in tort, agency, statutory misrepresentation, and under Competition Act, and are therefore outside the arbitration framework. The Plaintiff also argues that to the extent the Defendants rely on agency, consortium or undisclosed principal theories to invoke arbitration, those matters themselves raise factual disputes unsuitable for determination through a Preliminary Objection.
34. Regarding arbitrability, the Plaintiff argues that claims under sections 55, 57 and 70A of the Competition Act establish statutory causes of action that cannot properly be referred to a private arbitral tribunal seated in Seoul and must be determined by the Court. The Plaintiff therefore argues that the statutory claims are inherently non-arbitrable.
35. Finally, on the interim orders issued on 6th May 2026, the Plaintiff submits that section 7 of the Arbitration Act expressly empowers the Court to grant interim measures of protection before or during arbitration proceedings. The Plaintiff argues that because the parties expressly preserved recourse to Kenyan courts under clause 24.7 and because the parties, assets and subject matter are situated in Kenya, the interim jurisdiction of the Kenyan courts remains intact notwithstanding that the seat of arbitration is Seoul. The Plaintiff therefore urges the Court to sustain the interim orders pending determination of both the Notice of Motion and the suit itself.
36. The Plaintiff concludes that the Preliminary Objection is incompetent, procedurally defective, and fails on the law, having been improperly brought, raising contested factual issues, and invoked by parties lacking standing. It therefore urges the Court to and to sustain the interim orders issued on 6th May 2026 pending determination of the suit.
1st to 6th Defendant’s/Respondents submissions
37. The 1st to 6th Defendants/Respondents submit that the Plaintiff’s suit and application are incompetent as they contravene the binding arbitration clause (Clause 24) in the Subcontract Agreement dated 25th September 2025. They argue that all disputes arising out of or in connection with the contract—including issues of interpretation, performance, breach, and termination—are expressly reserved for final and binding arbitration before the Korean Commercial Arbitration Board (KCAB) in Seoul. Despite this, the Plaintiff improperly invoked the jurisdiction of the High Court while simultaneously seeking substantive relief reserved for arbitral determination.
38. The Respondents further contended that the joinder the 2nd to 6th Respondents was improper, as they are not parties to the Subcontract Agreement. They argued that this offends the doctrine of privity of contract and cannot sustain any legally recognizable cause of action against them. They maintained that the dispute, as outlined even in the Plaintiff’s own pleadings revolved around termination of the subcontract, contractual administration, technical compliance disputes, performance obligations, delays and contractual enforcement issues, all of which squarely fell within the arbitration clause.
39. The 1st to 6th Respondents framed three issues for determination, that is, whether this Honourable court lacks jurisdiction to entertain the suit and application by virtue of Clause 24 of the subcontract agreement and Section 6 of the Arbitration Act; whether the Applicant’s claims fall within the scope of Clause 24 of the subcontract agreement and whether the joinder of the 2nd to 6th Respondents violates the doctrine of privity of contract.
40. On the issue of jurisdiction, the Respondents argue that Section 6 of the Arbitration Act imposed a mandatory obligation upon courts to stay proceedings and refer disputes to arbitration where the dispute fell within the scope of a valid arbitration agreement unless the agreement was shown to be null, void, inoperative, or incapable of being performed. They emphasized that the Plaintiff had neither challenged the validity of Clause 24 nor demonstrated that it was incapable of performance. Instead, the Plaintiff was attempting to avoid arbitration by disguising contractual disputes as tortious misrepresentation and statutory claims.
41. The Respondents rejected the Plaintiff’s contention that a stay under Section 6 of the Arbitration Act could only be sought through a formal Chamber Summons application. They argued that the substance of their Preliminary Objection raised a pure jurisdictional issue founded on the existence of a binding arbitration agreement and that jurisdiction could be raised at any stage of proceedings. In support of that proposition, they relied heavily on the decision in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1 asserting that once a court determines that it lacks jurisdiction, it must immediately down its tools.
42. The Respondents also relied on the Court of Appeal decision in Safaricom Limited v Ocean View Beach Hotel Limited & 2 Others [2010] KECA 346 (KLR) which emphasized that courts must exercise restraint and respect party autonomy and the doctrine of kompetenz-kompetenz, leaving disputes agreed for arbitration to the arbitral tribunal.
43. On the scope of arbitration clause, the Respondents submitted that Clause 24 is broadly framed to cover disputes “arising out of or in connection with” the Subcontract Agreement. They argued that such wording had consistently received wide and purposive interpretation from courts to ensure that parties were held to their chosen dispute resolution mechanism. They argued that all the Plaintiff’s grievances related to termination, contractual administration, technical compliance, performance obligations, delays, certification disputes, and enforcement of contractual obligations under the subcontract, are inherently contractual and therefore subject to arbitration.
44. The Respondents maintained that the Plaintiff cannot circumvent arbitration by recharacterizing fundamentally contractual disputes as tort claims, statutory violations, competition law breaches, or public law grievances. In support of that position, the Respondents relied on Muruthi & 3 Others v Thiongo & Another [2025] KEHC 3423 (KLR) which emphasized that allegations framed as extending beyond the contractual framework did not automatically displace a binding arbitration agreement where the dispute remained substantially rooted in the contractual relationship between the parties. Also relied upon were the cases of Talent Academy v Embu High School Limited [2025] KEHC 8992 (KLR) and Ventura Aviation Limited v Skylink Express Limited & Another [2023] KEHC 19133 (KLR).
45. The Respondents further submitted that the public nature of the project does not alter the essentially private commercial character of the dispute, which remains governed by the contractual framework and is therefore fully arbitrable.
46. On the third issue the joinder of the 2nd to 6th Respondents, the Respondents submit that the claims against them were legally untenable because they were founded upon a contract to which those Respondents were neither signatories nor parties. They relied on the doctrine of privity of contract as a pure point of law capable of determination through a preliminary objection. In support, they relied on the Supreme Court decision in Charo v Mwashetani & 3 Others [2014] KESC 5 (KLR) where the Supreme Court adopted the principles in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. The Respondents maintain that the Court was not being asked to ascertain disputed facts but merely to determine whether non-signatories could properly be sued under the Subcontract Agreement.
47. The Respondents further relied on the Court of Appeal decision in Agricultural Finance Corporation v Lengetia Limited & Jack Mwangi [1985] KLR where the Court affirmed that contracts generally affect only the parties to them and cannot ordinarily be enforced by or against strangers to the contract. They also cited Kenya National Capital Corporation Ltd v Albert Mario Cordeiro & Another [2014] KECA 775 (KLR).
48. They contend that allegations of consortium arrangements, agency, or undisclosed principals were unsupported by evidence and could not establish contractual liability against non-signatories.
49. The Respondents also relied on Bandari Development Company Limited & Another v Trustees of the Kenya Ports Authority Pension Scheme [2023] KEHC 27612 (KLR) and Rana Auto Selection Limited v Kanyoro & Another [2026] KEHC 4 (KLR).
50. In conclusion, the Respondents submit that the suit is an attempt to circumvent the arbitration agreement, improperly confer jurisdiction before the Court and undermined party autonomy and settled principles of contractual privity. Consequently, the Respondents urge the Court to uphold the Preliminary Objection, strike out or stay the suit and Notice of Motion and refer the parties to arbitration strictly in accordance with Clause 24 of the Subcontract Agreement.
7th Respondent’s submissions
51. The 7th Respondent (KURA) submitted that it is a State Corporation responsible for managing and maintaining urban trunk roads and acts as the Employer for the Nairobi Intelligent Transport System (ITS) Project Phase I, a public infrastructure project funded through a bilateral arrangement with the Korean Export-Import Bank. It stated that the Plaintiff was engaged as a subcontractor for the Traffic Management Centre component. Following the Plaintiff’s alleged failure to provide a mandatory Performance Bond, the 1st Respondent issued a termination notice dated 22nd April 2026, prompting the Plaintiff to seek interim relief, which the Court granted temporarily under Section 7 of the Arbitration Act.
52. KURA supported the Preliminary Objection dated 9th May 2026 and opposed the grant of injunctive relief on the grounds of lack of jurisdiction, public interest and the Plaintiff’s alleged non-compliance with mandatory contractual obligations. It identified four issues for determination that is whether the court has jurisdiction to determine the substantive dispute; whether the Plaintiff has established a case for the grant of a temporary injunction; whether a party in breach of mandatory statutory or contractual conditions can seek protective orders from the court and who should bear the costs.
53. On jurisdiction, the 7th respondent adopted the submissions made by the 1st to 6th Respondents arguing that Clause 24 of the Subcontract mandates arbitration before the KCAB in Seoul, thereby ousting the Court’s jurisdiction. It emphasized that under Section 6 of the Arbitration Act, the Court must refer disputes to arbitration where a valid arbitration agreement exists, and that its role under Section 7 is limited strictly to interim preservatory measures, not determination of substantive issues such as the validity of termination.
54. The 7th Respondent further submitted that interim relief is not automatic and must meet established legal thresholds. It urged that, the Plaintiff’s attempt to bypass arbitration by framing its claims as tortious misrepresentation and Competition Act violations was an impermissible attempt to override the parties’ clear intention to arbitrate disputes.
55. Regarding the second issue, the 7th Respondent submits that the Plaintiff failed to satisfy the three-part test established in Giella v Cassman Brown & Co. Ltd [1973] EA 358. It argued first that the Plaintiff had failed to establish a prima facie case with a probability of success because the Plaintiff was in admitted breach for failing to furnish the mandatory Performance Bond which KURA described as a prerequisite condition
[...truncated]