1.It is common ground that the parties entered into a contract dated 18th July 2022 for supply and delivery of fuel for a period of 3 years. By a letter dated 18th July 2022, the Respondent wrote to the Applicant informing it that it had terminated the contract because of failure of the Applicant to fulfil its obligations. It is this termination that precipitated the filing of the application dated 1st August 2022 made under section 7(1) of the Arbitration Act seeking an injunction restraining the Respondent from terminating the contract pending the arbitration and an order compelling the Respondent to revoke the letter dated 18th July 2022.
2.The application is supported by the affidavit of Applicant’s General Manager, Kaltuma A. Abdulla, sworn on 1st August 2022. It is opposed by the Respondent through Grounds of Opposition dated 8th September 2022. I have heard brief oral submissions by the respective counsel and came to the conclusion that the application must be dismissed for the following reasons.
3.While it is not necessary under section 7(1) of the Arbitration Act for the arbitration proceedings to have commenced in order to grant interim measures of protection, there is no evidence in the deposition that the Applicant has taken any steps to invoke the arbitration process. In the circumstances and as threshold issue, apart from stating that there is an arbitration clause in the contract, it has not been invoked and this court would be reluctant, in the circumstances, to grant an open ended interim measure of protection without an expectation that the Applicant will invoke and commence arbitral proceedings.
4.The second reason is that the contract has already been terminated. To grant interim orders of the nature sought would amount to granting a mandatory injunction which requires a high degree of certainty that the matter will succeed. Bearing in mind that the dispute ought to be settled by arbitration, the court will be required to the engage in factual maters in order to satisfy itself that the mandatory order is warranted thus straying into the jurisdiction of the arbitral tribunal. It is also for this reason that the court cannot order the Respondent to revoke the termination. Lastly, this is a proper case where damages are an adequate remedy for the party aggrieved and which the arbitral tribunal has the power to award.
5.I dismiss the Applicant’s Notice of Motion dated 1st August 2022 with costs to the Defendant assessed at Kshs. 40,000.00.