Construction Engineering & Builders (Kenya) Ltd v Municipal Council of Kisumu [1981] KECA 27 (KLR)

Mr Behan's all-or-none submission was unsupported by any authority. Potter JA relied on Lindley LJ in Ives and Barker v Willans and Lord Parker in Bristol Corporation v John Aird & Co, noting that sections 4 of the English Arbitration Acts 1889 and 1950 and section 6 of the Kenya Act are in substantially the same terms. Law JA added that Bristol Corporation was cited with approval and followed by this Court in Kenya Oil Co Ltd v Rajwani. The judge was therefore entitled to stay further proceedings while preserving the injunction.

Potter JA noted the memorandum of appeal contained no ground attacking the injunction on its merits and that the record disclosed no denial of the allegations in the plaint and the supporting affidavit. The injunction was the primary purpose of the suit, and the Employer had succeeded in obtaining and maintaining it. Miller JA likewise found the judge's discretionary order was intended to protect the works and was justified by the sworn and unchallenged averment that materials were being removed.

Rule 13 of the Arbitration Rules gives the judge a wide discretion on costs on a stay. The primary purpose of the suit was to obtain and maintain the injunction, in which the Employer succeeded; the main purpose of the stay application was to obtain discharge of the injunction, in which the appellant failed. The appellant therefore could not complain of costs in cause. The costs of the appeal were awarded to the respondent.