11.I have carefully considered all the pleadings, written submissions, evidence and authorities presented by rival parties in support of their positions. I do not wish to regurgitate the submissions made by parties but I will make constant reference to them as I deal with the following issues which arise for determination:i.Whether the application by Oilfields dated 4th July 2023 is res judicata.ii.Whether Oilfields is entitled to the Mareva injunction.iii.Whether the intended interested party should be enjoined to the suit.The application dated 4th July 2023: is it res judicata?
13.A reading of section 7 makes it very clear that the doctrine of res judicata serves the aim of bringing finality and closure to litigation and is a protection against wastage of judicial time and resources from endless rounds of litigation. The application of the doctrine was expounded by the Court of Appeal in the case of Independent Electoral & Boundaries Commission V Maina Kiai & 5 Others, (2017) eKLR where it was held that:
14.It is not in dispute that Oilfields had on numerous occasions attempted to get preservatory orders from the court. The candor of Oilfields in disclosing this fact to the Court has been raised by the parties. Indeed, I couldn’t agree more with Zakhem that in an application for orders such as this, full disclosure is required. Zakhem argues that had full disclosure been made, this Court would not have granted the impugned interim orders. I do note that the application of 4th July 2023 by Oilfields refers to the OS in HCCC E028 of 2023 which it acknowledged as having been struck out.
15.Zakhem refers to an application dated 30th September 2022 filed by Oilfields, seeking similar interim orders in HCCC No. E322 of 2019 which it acknowledges was later withdrawn. Subsequently, another application dated 8th October 2022 was filed and Oilfields obtained an Order for status quo which was subsequently discharged on 22nd December 2022. On the same day, it filed a suit being HCCC COMM E519 of 2022 and sought similar interim orders and then withdrew the suit and the application.
16.Counsel for Zakhem submitted that the application before court was res judicata since the Court had already determined, in the preceding suits, the question of attachment of the sums claimed before the recognition and enforcement of the arbitral award, effectively becoming functus officio. On its part, Oilfields denies that the application was res judicata as the suit E028 of 2023 (OS) was struck out on account of procedure and not on merit. It states that the other applications filed had also been struck out for being brought in independent suits as opposed to being filed in the main cause.
17.I concur with Zakhem that the multiple applications and suits filed by Oilfields must be called out and frowned upon as this boarders abuse of Court. I do however note that both parties have submitted that these previous applications and suit were either dismissed or struck out meaning that they were not heard on merit and that the prayer for Mareva injunction had not been determined with finality. In the interests of justice and so as to avail an opportunity to Oilfields to ventilate its case substantively before Court, I proceed on the basis that the application dated 4th July 2023 is not res judicata.Is Oilfields entitled to the Mareva injunction?
18.The Halsbury Laws of England 3rd Edition Vol. 3  page 329 to 331 defines a Mareva injunction as:
19.On the purpose and application of Mareva injunctions, Lord Denning in the locus classicus case of Mareva Campania Naviera SA V International Bulkcarriers SA  1 All E.R. 213 stated as follows at page 215:
20.In Fourie vs Le Roux & Ors  UKHL 1 at Para 2,  1All ER 1087, Lord Bingham also observed that:
21.The position is further captured in the Halsbury’s Laws of England (supra) to the extent that:
22.The preventive and anticipatory character of injunctive orders is also captured under Order 40 of the Civil Procedure Rules 2010. Rule (1)(b) particularly provides that if:
23.Counsel for Zakhem stated that Oilfields was not entitled to a Mareva injunction because its rights had not yet crystalized. It further argues that there was no legally enforceable right since the award was yet to be recognized by the Court and therefore had no juridical value. Counsel refers to section 36 of the Arbitration Act in the submission that a domestic arbitral award shall be recognized as binding upon adoption by the High Court.
24.My reading of section 36 is that an arbitral award is in itself binding on parties. To hold otherwise would be tantamount to disparaging the use and undermining the predictability, stability and other benefits of the process. An application for recognition of an award clothes it with the status of a judgment and a decree that is capable of enforcement.
25.Zakhem further submits that the award is yet to crystalize into an enforceable legal right capable of execution as such, it cannot be used to clog the right of the respondent to continue its normal cause of business. The same is premature and must await compliance with the formal processes of the law. I find myself unable to agree with this submission.
26.In my view this implies that for a party to seek interim relief of preservation they must have a ‘crystalized’ right in the sense of a judgment. My reading of Order 40 of the Civil Procedure Rules which governs the grant of temporary injunctions and interlocutory orders is that a temporary injunction may be granted in any suit where:
27.Turning to the matter at hand, as I have already stated, even before recognition of an award as a judgment of the Court, the resultant award and decision of the Arbitrator is binding on the parties. Moreover, a fundamental feature of arbitration as a chosen alternative to a national court, is the acceptance that the strictness of the procedure and rights of appeal of the court, are excluded subject to very limited but essential protections. This must surely count for something and is the basis upon which Oilfields seeks to assert its rights to an interlocutory preservation order, by way of a Mareva injunction, premised on the Miscellaneous Application that is currently pending before the Court.
28.Zakhem further takes issue with Oilfields for failing to appreciate that the Arbitration Act is complete code of law with its own statute and rules which does not invite the importation or transportation of Civil Procedure Rules. Indeed, there is sufficient jurisprudence on this position and with which I concur. What is also true is that an arbitrator becomes functus officio after the publication of an award. Thereafter parties must move the Court by way of a miscellaneous application for the recognition or setting aside of the award as the case may be. Within the interim period, and noting that the arbitrator no longer has jurisdiction, I see no other way of ensuring that an award has the intended practical effect to the decree holder, other than by seeking injunctive orders for the preservation of the substance of the arbitration. This explains the wording of section 7(1) of the Act that:
29.What must therefore concern this Court is whether Oilfields has made out a case for the grant of the Mareva injunction. I refer to UBA Kenya Bank Limited v Sylvia Mututi Magotsi  eKLR, where the Court outlined the threshold for the grant of a Mareva injunction stating as follows:
30.Does Oilfields have a good arguable case? What entails a good arguable case was laid out by the Court in African Banking Corporation Limited V Netsatar Limited & 6 Others, Nairobi Milimani HCC No. 299 of 2009 (UR) citing with approval from the observation by Mustill J in The Niedersachsen  2 Lloyd's Rep 600 at page 605. The Court defined a good arguable case as:
31.This Court further concurs with the observation in Fourie V Le Roux  UKHL 1,  1 WLR 320 that a Mareva injunction is sought and applied for against persons against whom there is only an allegation, hence the need to be scrupulous in checking the facts. In my view, while this Court must not use the Mareva injunction to protect a creditor before he has obtained judgement, I am fully aware that an arguable case does not also mean that a party must have a crystalized right or judgment as opined by Zakhem.
32.The arbitral award published on 30th June 2021 in favour of Oilfields in my view provides the basis for a good arguable case. The relief sought is meant to protect the subject matter of the arbitration pending the hearing of the application for enforcement and the application for setting aside the award.
33.Zakhem argues that the Mareva injunction issued by this Court on 4th July 2023 pending the hearing and determination of these applications created an impression that the Court had already predetermined the issues and made up its mind on the merits of the case thus prejudicing Zakhem’s case in setting aside the award. I have already made it clear and with backing from judicial pronouncements that this injunctive relief is only preventive. I am completely aware of the parameters of my enquiry at this point, guided by decisions such as Mbuthia v Jimba Credit Finance Corporation & Another,  eKLR that:From my overall consideration of the evidence of the matters herein I reach the conclusion that Oilfields has established a good arguable case for grant of the relief.
34.The second issue that I must address is the risk of dissipation which is the cornerstone of a freezing order. The question is whether Oilfields has demonstrated that there is a real risk that the funds in question will be removed from the jurisdiction or otherwise dissipated if the injunction is not granted.
35.One of the cases cited by the parties was Imperial Bank Kenya Ltd V Janco Investments Limited and 10 Others,  eKLR in which the court also cited The Niedersachsen  2 Lloyd's Rep 600 case. This Court concurs with the finding that:
36.The gist of Oilfields case is that the funds for satisfying the award if adopted as a decree are being held by the intended interested party. Oilfields avers that Zakhem had since the striking out of the OS received the payments owed by the intended interested party save for the USD 31,308,349.80 which amount had been secured previously in HCCC 028 OF 2023. This fact was not controverted by Zakhem or by the intended interested party. The submission is supported by the evidence produced by Oilfields as annexure JHW-3 and JHW-4 which Zakhem and the intended interested party want expunged from the record on grounds that they were illegally obtained. These claims are not substantiated and as such the Court finds that there has not been sufficient evidence to warrant the orders sought.
37.From the totality of the evidence before me, I find that Oilfields has demonstrated that the intended interested party may not be trusted not to pay out the remaining amount based on this previous payment which has not been controverted. Oilfields apprehension is heightened by the fact that Zakhem is a foreign Company registered in Cyprus, with no known assets in Kenya, which fact has also not been denied. Considering the balance of convenience, I find that Oilfields has established grounds for the confirmation of the Mareva injunction.Whether the intended interested party should be enjoined to the suit
38.The guiding principles on joinder of parties has now been established following the Supreme Court decision in Trusted Society of Human Rights Alliance V Mumo Matemu & 5 Others, SC Petition (Application) No. 12 of 2013, which decision is binding on this Court. The Court stated as follows:
39.Further, the Supreme Court in Francis Karioki Muruatetu & Another V Republic & 5 Others,  eKLR defined an interested party as:
40.The normal and established practice is for such an interested party to apply to be enjoined in the matter and show what interest they have in the case. The prayer for joinder in this case was filed by Oilfields. The intended interested party has not indicated that it wishes to participate in the matter. It has not indicated what value its involvement will serve as was stated by the Supreme Court in the above cited decisions, which are binding on this Court. While I note that the application was not opposed, I am not satisfied that the intended interested party has itself made out a good case for being enjoined in the suit herein.
41.The dispute before the court was and continues to be between Oilfileds and Zakhem. The proceedings before me are interlocutory in nature, pending the outcome of the arbitration cause, which is again a dispute between Oilfields and Zakhem. The intended interested party is therefore not critical in these proceedings and adds no value to them save that it is bound by the Court order. I do not however find it necessary only on this ground to enjoin it as a party.
42.The intended interested party correctly pointed out in submissions that it ought to be heard on the status of the monies alleged to be held by itself for Zakhem. In response to this, it is my view that should the award be recognized as a judgment of the Court, this paves way for execution under Order 22 of the Civil Procedure Rules and possible garnishee proceedings to which the intended interested party will be a party.
43.Applying the aforementioned principles, I find that the applicant has not met the threshold for admission as an interested party as it has failed to establish its interest or stake that is proximate enough to occasion any prejudice to it, if not enjoined in these proceedings.