A Critical Analysis Of Arbitral Interim Measures Of Protection In Kenya

Abstract

study examines arbitral interim measures of protection in Kenya. It focuses on the court’s intervention in the award of interim measures and makes two arguments. The first argument is that although section 7 of the Arbitration Act 1995 grants the High Court the power to award interim measures of protection, nevertheless, the High Court, in exercise of its discretion, has created inconsistent and contradictory jurisprudence with regards to the conditions for granting such measures. This inconsistency is due to the absence of a clear statutory provision under the Arbitration Act 1995 that establishes these conditions. The second argument is that there is a tension between the supremacy of the Constitution and the Arbitration Act 1995. Thus, in utilising a doctrinal legal research methodology, this study analyses statutory provisions and case law to determine the courts approach in granting interim measures. Based on this analysis, the study found that: (a) the conditions for granting interim measures established by courts, such as, the existence of an arbitration agreement, irreparable harm and urgency are not applied uniformly; (b) in other jurisdictions such as the UK and in the UNCITRAL Model Law and UNCITRAL Arbitration Rules, the conditions for granting interim measures are clearly delineated; and (c) in some cases, courts have relied on the supremacy of the constitution as a basis for usurping jurisdiction over the application of the Arbitration Act 1995. As a result of these findings, the study concludes that the uncertainties and inconsistencies in the award of interim measures signify that a litigant is irresolute of the outcome of his case. Therefore, the study recommends a legislative reassessment to address the deficiencies in the Arbitration Act 1995. Areas of further research have also been provided in light of the research findings. Key words: arbitration, courts, interim measures of protection, Kenya, UNCITRAL.