Gathagu & another v Thiongo & 2 others (Environment and Land Miscellaneous Application E358 of 2025) [2026] KEELC 3956 (KLR)
The bottom line
#A Kenyan court froze a disputed apartment and its rental income to protect buyers while their arbitration case is decided.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants have satisfied the criteria for grant of an interim measure of protection pending completion of arbitral proceedings
Key legal issues
#Whether the criteria for grant of an interim measure of protection pending arbitration were satisfied
The court held that the applicants established the requisite conditions: an arbitration agreement existed (clause 9 of the deed of assignment), the subject matter was under threat, and the measures sought were appropriate protective measures pending arbitration.
The court applied the Safaricom v Ocean View criteria: existence of an arbitration agreement, threat to the subject matter, appropriate measure on the merits, and the period of the measure. It found undisputed that the applicants signed a deed of assignment containing a clause 9 arbitration agreement, paid the purchase price in full, and that respondents had not delivered vacant possession since the project stalled. The 1st respondent filed no response and continued collecting rent. Applying Progressive Credit, the court concluded protective measures pending arbitration were warranted.
Legal principles established
#- The High Court may grant interim measures of protection under Section 7 of the Arbitration Act in support of the arbitral process, independent of the civil procedure requirements for an injunction
Court orders
#- 1.An order of inhibition restraining any dealings with the suit property, pending the hearing and determination of the arbitration proceedings
- 2.The chief land registrar, Nairobi district registry to register an inhibition against the suit property in the appropriate register
- 3.All the rental income from the suit property to be remitted into an escrow account in the names of the 1st respondent and the applicants, pending the hearing and determination of the arbitration proceedings
- 4.Each party to bear its own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 7(1) of the Arbitration Act and Section 68 of the Land Registration Act
Relief refused
#Interim inhibition pending hearing and determination of the application inter partes (order 2 of the motion - spent)
The application was allowed as prayed in final form pending arbitration; no separate interim order was issued
Costs of the application borne by the respondents jointly and severally
The court instead ordered each party to bear its own costs
Costs
Each party to bear its own costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
the applicants have established the conditions requisite for the grant of protective measures pending arbitration and therefore the notice of motion application dated 14th November, 2025 is merited
An order of inhibition is hereby issued restraining any dealings with the suit property, pending the hearing and determination of the arbitration proceedings.
The chief land registrar, Nairobi district registry is hereby ordered to register an inhibition against the suit property in the appropriate register.
I hereby direct that all the rental income from the suit property be remitted into an escrow account in the names of the 1st respondent and the applicants, pending the hearing and determination of the arbitration proceedings.
Each party to bear its own costs.
the essentials which the court must take into account before issuing the interim measures of protection are:1. the existence of an arbitration agreement. 2. whether the subject matter of arbitration is under threat.
Issues in the judgment
#The judgment does not state the case number or the names of the parties in the coram; parties are referred to only by number, and the 1st and 2nd respondents' individual names are not given in the ruling text
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gathagu & another v Thiongo & 2 others (Environment and Land Miscellaneous Application E358 of 2025) [2026] KEELC 3956 (KLR)", Case Analysis (2026). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3956/eng@2026-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.