1. Before the Court is the Applicant’s Chamber Summons dated 15 th October 2024 brought under Sections 1A and 3A of the Civil Procedure Act, Section 7 of the Arbitration Act, Order 40, 46, and 51 Rule 1 of the Civil Procedure Rules, 2010 and all other enabling provisions of the law.
2. The Applicant seeks for interim measures of protection pending the hearing and determination of the Application and Arbitration proceedings thereto.
3. The dispute herein stems from a subcontract agreement dated 21 September 2023 where the Applicant contends that the Respondent unlawfully terminated its services via a letter dated 3 October 2024, without giving the 14-day rectification notice required under the contract. The Applicant testifies that Arbitration has already been invoked by issuance of a 30-day notice to appoint an Arbitrator.
4. The Applicant therefore sought orders restraining the Respondent from subcontracting the works to third parties and from interfering with its machinery, assets and properties pending the conclusion of arbitration.
5. The matter which was first initiated under a certificate of urgency got interim orders from the court on 23 rd October 2024 on the prayer sought pending the determination of the Application.
6. Subsequently, several applications herein have been filed by both parties namely; a Notice of Motion dated 28 th October 2024 seeking extension of interim orders granted and police assistance to enforce the orders, which was denied by the Court and aggrieved party advised to be at liberty to pursue contempt proceedings which they did vide application dated 14 th November 2024.
7. The Defendants on their part filed two Notice of Motions dated 4 th and 8 th of November 2024 seeking lifting of Interim orders issued and for matter to be referred to Arbitration.
8. On 21 st November 2024, the Court directed to first proceed with the Application in question herein as all other subsequent applications to be held in abeyance. Directions to its disposal were given accordingly and submissions filed by both parties.
9. When the matter came up for highlighting of submissions on 10 th of June 2026 , the Applicant’s counsel was absent. Counsel for the Respondent who was in attendance informed the Court that the construction works forming the subject matter of the dispute had already been completed and finalized. It was further submitted that the interim orders sought had therefore been overtaken by events and there was nothing else to protect. Counsel averred that that if the Applicant was still aggrieved then the remedy lies with arbitration.
10. The Court has considered the application, the pleadings on record, and the submissions made.
11. The jurisdiction of this Court under Section 7 of the Arbitration Act is limited to granting interim measures of protection for the purpose of preserving the subject matter of arbitration pending the arbitral process. Such measures are intended to maintain the status quo and prevent the arbitral proceedings from being rendered nugatory.
12. In the present case, the principal relief sought is an order restraining the Respondent from subcontracting the works to third parties. The Court has been informed, and there is no material before it, and to the contrary, that the construction works have already been completed. Consequently, the subject matter sought to be preserved no longer exists in the form contemplated by the application.
13. The Court further notes that the Plaintiff/Applicant was absent when the matter came up for highlighting of submissions on the 10 th of June 2026 and offered no explanation for such absence. The Court is therefore left without any evidence to rebut the Defendant/Respondent’s assertion that the project has been finalized.
14. The Court of Appeal in Safaricom Limited v Ocean View Beach Hotel Limited & 2 Others [2010] KECA 346 (KLR) observed that interim measures of protection are intended to preserve evidence, protect assets, or maintain the status quo pending the outcome of arbitral proceedings. The Court emphasized that such measures are “holding orders” whose objective is to support and not supplant the arbitral process.
15. This Court must then ask itself a simple but fundamental question: what is left to preserve? The Respondent’s uncontested position is that the construction works have already been completed. The Applicant, having failed to attend Court, did not challenge that assertion. If indeed the works have been completed, then the acts sought to be restrained have already occurred. The Court would be issuing orders against events that have already crystallized.
16. I am further persuaded by the reasoning in Highland Carriers Limited v National Oil Corporation of Kenya Limited [2021] KEHC 13030 (KLR) where it was stated that an interim measure granted under Section 7 of the Arbitration Act must aid the arbitral process by preserving the subject matter so that the eventual award is not rendered worthless.
17. Where the events sought to be restrained have already occurred, injunctive relief serves no practical purpose. Courts do not act in vain, nor do they issue orders incapable of enforcement. The application herein has evidently been overtaken by events.
18. Nevertheless, the completion of the works does not extinguish any contractual or monetary claims that may have arisen between the parties. Such claims, including allegations of wrongful termination, breach of contract, damages, loss of profits, payment disputes, or compensation for equipment and materials, remain matters properly falling within the jurisdiction of the arbitral tribunal pursuant to the parties’ arbitration agreement.
Disposition
19. This Court is therefore satisfied that there is no longer any subject matter requiring preservation through interim measures under Section 7 of the Arbitration Act. The interim reliefs sought have been overtaken by events following completion and finalization of the construction works forming the subject matter of the application.
20. Accordingly, the Court makes the following orders:
a) The Applicant’s Notice of Motion dated 15 th October 2024 is hereby dismissed.
b) The parties are at liberty to pursue and prosecute all outstanding claims in accordance with their arbitration agreement.
c) Each party shall bear its own costs.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 17 TH DAY OF SEPTEMBER 2026
ANNE.M. OKUTOYI
JUDGE
In the presence of:
Ms. Karue for the Applicant.
N/A from the Respondent.
Court Assistant: Ms. Mokeira.
2. The Applicant seeks for interim measures of protection pending the hearing and determination of the Application and Arbitration proceedings thereto.
3. The dispute herein stems from a subcontract agreement dated 21 September 2023 where the Applicant contends that the Respondent unlawfully terminated its services via a letter dated 3 October 2024, without giving the 14-day rectification notice required under the contract. The Applicant testifies that Arbitration has already been invoked by issuance of a 30-day notice to appoint an Arbitrator.
4. The Applicant therefore sought orders restraining the Respondent from subcontracting the works to third parties and from interfering with its machinery, assets and properties pending the conclusion of arbitration.
5. The matter which was first initiated under a certificate of urgency got interim orders from the court on 23 rd October 2024 on the prayer sought pending the determination of the Application.
6. Subsequently, several applications herein have been filed by both parties namely; a Notice of Motion dated 28 th October 2024 seeking extension of interim orders granted and police assistance to enforce the orders, which was denied by the Court and aggrieved party advised to be at liberty to pursue contempt proceedings which they did vide application dated 14 th November 2024.
7. The Defendants on their part filed two Notice of Motions dated 4 th and 8 th of November 2024 seeking lifting of Interim orders issued and for matter to be referred to Arbitration.
8. On 21 st November 2024, the Court directed to first proceed with the Application in question herein as all other subsequent applications to be held in abeyance. Directions to its disposal were given accordingly and submissions filed by both parties.
9. When the matter came up for highlighting of submissions on 10 th of June 2026 , the Applicant’s counsel was absent. Counsel for the Respondent who was in attendance informed the Court that the construction works forming the subject matter of the dispute had already been completed and finalized. It was further submitted that the interim orders sought had therefore been overtaken by events and there was nothing else to protect. Counsel averred that that if the Applicant was still aggrieved then the remedy lies with arbitration.
10. The Court has considered the application, the pleadings on record, and the submissions made.
11. The jurisdiction of this Court under Section 7 of the Arbitration Act is limited to granting interim measures of protection for the purpose of preserving the subject matter of arbitration pending the arbitral process. Such measures are intended to maintain the status quo and prevent the arbitral proceedings from being rendered nugatory.
12. In the present case, the principal relief sought is an order restraining the Respondent from subcontracting the works to third parties. The Court has been informed, and there is no material before it, and to the contrary, that the construction works have already been completed. Consequently, the subject matter sought to be preserved no longer exists in the form contemplated by the application.
13. The Court further notes that the Plaintiff/Applicant was absent when the matter came up for highlighting of submissions on the 10 th of June 2026 and offered no explanation for such absence. The Court is therefore left without any evidence to rebut the Defendant/Respondent’s assertion that the project has been finalized.
14. The Court of Appeal in Safaricom Limited v Ocean View Beach Hotel Limited & 2 Others [2010] KECA 346 (KLR) observed that interim measures of protection are intended to preserve evidence, protect assets, or maintain the status quo pending the outcome of arbitral proceedings. The Court emphasized that such measures are “holding orders” whose objective is to support and not supplant the arbitral process.
15. This Court must then ask itself a simple but fundamental question: what is left to preserve? The Respondent’s uncontested position is that the construction works have already been completed. The Applicant, having failed to attend Court, did not challenge that assertion. If indeed the works have been completed, then the acts sought to be restrained have already occurred. The Court would be issuing orders against events that have already crystallized.
16. I am further persuaded by the reasoning in Highland Carriers Limited v National Oil Corporation of Kenya Limited [2021] KEHC 13030 (KLR) where it was stated that an interim measure granted under Section 7 of the Arbitration Act must aid the arbitral process by preserving the subject matter so that the eventual award is not rendered worthless.
17. Where the events sought to be restrained have already occurred, injunctive relief serves no practical purpose. Courts do not act in vain, nor do they issue orders incapable of enforcement. The application herein has evidently been overtaken by events.
18. Nevertheless, the completion of the works does not extinguish any contractual or monetary claims that may have arisen between the parties. Such claims, including allegations of wrongful termination, breach of contract, damages, loss of profits, payment disputes, or compensation for equipment and materials, remain matters properly falling within the jurisdiction of the arbitral tribunal pursuant to the parties’ arbitration agreement.
Disposition
19. This Court is therefore satisfied that there is no longer any subject matter requiring preservation through interim measures under Section 7 of the Arbitration Act. The interim reliefs sought have been overtaken by events following completion and finalization of the construction works forming the subject matter of the application.
20. Accordingly, the Court makes the following orders:
a) The Applicant’s Notice of Motion dated 15 th October 2024 is hereby dismissed.
b) The parties are at liberty to pursue and prosecute all outstanding claims in accordance with their arbitration agreement.
c) Each party shall bear its own costs.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 17 TH DAY OF SEPTEMBER 2026
ANNE.M. OKUTOYI
JUDGE
In the presence of:
Ms. Karue for the Applicant.
N/A from the Respondent.
Court Assistant: Ms. Mokeira.