Interim measures of protection in arbitration have emerged as a vital tool in safeguarding the interests of parties engaged in dispute resolution. In Kenya, this aspect of arbitration law has garnered significant attention, as it bridges the gap between the initiation of arbitration proceedings and the final award. The ability to secure interim relief can be crucial in preserving assets, maintaining the status quo, and ensuring that the arbitration process remains effective and equitable. With the rise of complex commercial disputes and the increasing reliance on arbitration as a preferred method of dispute resolution, understanding the nuances of interim measures in Kenya is more pertinent than ever. This article delves into the evolving landscape of interim measures of protection in Kenyan arbitration, exploring landmark cases, legislative frameworks, and the delicate balance between Court intervention and arbitral autonomy.

Nature of Interim Measures of Protection

An interim measure of protection is an order issued by either a Court or an arbitral tribunal aimed at preserving the status quo or preventing the dissipation of assets pending the resolution of the dispute. These measures can be granted either before the commencement of the proceedings before the tribunal or during the proceedings, but before an award has been rendered. Importantly, the granting of these measures is discretionary and not a matter of right. Various conditions must be met before a tribunal or Court can grant them, particularly when it comes to Court-issued measures. This discretion ensures that Courts do not overstep their bounds and usurp the role of the arbitral tribunal.

Originally, Courts were the sole judicial authority empowered to grant interim measures of protection. However, this position has evolved, with many countries revising their national arbitration laws to explicitly recognize the concurrent jurisdiction of both Courts and arbitral tribunals. Arbitral tribunals in Kenya are permitted to grant preliminary and/or interim relief under both the Arbitration Act, 1995 (the Arbitration Act) and institutional rules applicable within the Kenyan jurisdiction. Specifically – Section 18 (1) (a) of the Arbitration Act – An arbitral tribunal can order a party to take such interim measures of protection as it deems necessary or appropriate.

• Rule 18 (2) (i) of the Chartered Institute of Arbitrators Rules (CIArb Rules) – An arbitral tribunal has jurisdiction to make one or more interim awards, including injunctive relief and conservatory measures.
• Rule 27 (1) of the Nairobi Centre for International Arbitration Rules, 2015 (NCIA Rules) – An arbitral tribunal, subject to the agreement between the parties, can issue a range of interim or conservatory orders in the arbitration.

An interim award made pursuant to the CIArb Rules and the NCIA Rules is final and binding upon the parties pursuant to the Arbitration Act and the institutional rules, which define an “arbitral award”  to include any award by the arbitral tribunal, including an interim award. There is no automatic right of appeal against a decision allowing an application for security for costs brought under section 18 of the Arbitration Act. A party may only appeal such a decision on a point of law that arises within the arbitration or stemming from an award to the High Court (under section 39 of the Arbitration Act). This recourse, however, is only available where parties have expressly reserved their right of appeal. In the absence of such an agreement by the parties, an Arbitrator’s award is final and binding and can only be set aside or its enforcement challenged on the basis of the limited grounds set out under section 35 and section 37 of the Arbitration Act.

Role of the Courts

Section 7 (1) of the Arbitration Act provides that the High Court may allow applications for interim measures when so moved by either of the parties. The primary objective of Courts when intervening is to ensure that the subject matter of the arbitration proceedings is not jeopardised before an award is issued, thereby rendering the entire proceedings otiose.

This purpose was well elaborated in the case of CMC Holdings Limited v Jaguar Land Rover Exports Limited (2013) eKLR as follows: “In practice, parties to international arbitrations normally seek interim measures of protection. They provide a party to the arbitration an immediate and temporary injunction if an award subsequently is to be effective. The measures are intended to preserve assets or evidence which are likely to be wasted if conservatory orders are not issued. These orders are not automatic. The purpose of an interim measure of protection is to ensure that the subject matter will be in the same state as it was at the commencement or during the arbitral proceedings. The Court must be satisfied that the subject matter of the arbitral proceedings will not be in the same state at the time the arbitral reference is concluded before it can grant an interim measure of protection.”

Section 7 (2) of the Arbitration Act states that where a party applies to the High Court for an injunction or other interim order and the arbitral tribunal has already ruled on any matter relevant to the application, the High Court shall treat the ruling, or any finding of fact made in the course of the ruling as conclusive for the purposes of the application.

Conditions for Grant of an Interim Measure of Protection

The conditions that a Court or arbitral tribunal must consider before granting interim measures of protection have become well established under Kenyan law. These principles were clearly outlined in the landmark case of Safaricom Limited v Ocean View Beach Limited & 2 Others (2010) eKLR which set out the following criteria for consideration: The existence of an arbitration agreement.

• Whether the subject matter of the arbitration is under threat.
• A careful assessment of the appropriate measure of protection based on the merits of the application.
• If the measure is requested before the arbitration proceedings commence, the Court or tribunal must specify the duration of the measure to prevent overstepping the tribunal’s authority.

In addition, the case of Futureway Limited v National Oil Corporation of Kenya (2017) eKLR introduced further considerations, including:

• The urgency with which the applicant has approached the Court.
• The risk of substantial (though not necessarily irreparable) harm or prejudice if the protection is not granted.

These criteria underscore the careful balance that must be struck between providing necessary protection and respecting the autonomy of the arbitral process. As Kenyan jurisprudence continues to evolve, these guiding principles ensure that interim measures are applied judiciously and fairly, maintaining the integrity of both the arbitration process and the subject matter in dispute.

Emergency Arbitration

In certain cases, the urgency of a matter may require one party to seek interim measures even before an arbitral tribunal has been fully constituted. To address such situations, an increasing number of the leading arbitral institutional rules now include provisions for the appointment of emergency arbitrators. Emergency arbitrators enable parties to obtain urgent relief before the tribunal is constituted and without having to go to Court.

Emergency arbitration is a process that allows parties to seek urgent interim relief before a full arbitral tribunal is constituted. This mechanism is typically invoked when a dispute requires immediate attention, and the parties cannot afford to wait for the formation of the standard tribunal. An emergency arbitrator is usually appointed to hear an application for interim relief pending the substantive arbitration.

Key advantages of emergency arbitration over seeking interim measures from Courts include maintaining the confidentiality of the proceedings, avoiding the jurisdictional pitfalls in seeking Court intervention highlighted above and, in some cases, assuaging the concerns of parties that are apprehensive of obtaining justice from local Courts, especially in the case of foreign parties seeking remedies against national governments and their institutions.

In Kenya, the Arbitration Act and Arbitration Rules do not specifically address emergency or expedited arbitration. However, both the NCIA Rules and the CIArb Rules have provisions in place for managing expedited and emergency arbitrations. Under the CIArb Rules, an emergency arbitrator must be appointed within two (2) days of an application, with the expectation that the arbitrator will resolve the issues raised in the request for interim measures as quickly as possible, ideally within fifteen (15) days of their appointment. Importantly, the emergency arbitrator is also required to ensure that all parties receive reasonable notice and an opportunity to be heard.

The NCIA Rules equally require an emergency arbitrator to be appointed within two (2) days, and the arbitrator is required to establish a schedule for considering the emergency arbitration within two (2) days and make an order or award within fifteen (15) days from appointment, subject to any extensions as may be agreed by the parties. Under Rule 28 (4) of the NCIA Rules, upon expedited formation of the arbitral tribunal, the emergency arbitrator shall have no further power to act in the dispute. Under Rule 28 (6) of the NCIA Rules, an order or award made by the emergency arbitrator is binding on all the parties upon being issued.

It is expected that going forward, parties will increasingly adopt emergency arbitration in seeking interim measures of protection.