29th August 2023
We are very proud to announce that #ourveryown Noella Lubano, Paul Kamara and Zahra Omar have successfully represented Fuji Electric Co. Limited (Fuji) in HCCCOMM No. E359 of 2022: Civicon Limited vs. Fuji Electric Co. Limited & 2 Others (the Suit) in which the High Court dismissed an Application seeking to restrain Equity Bank (Kenya) Limited (the Bank) from paying Fuji the proceeds of a 2.314 million dollar Performance Bond issued in its favour.
The High Court’s decision sets an important precedent in two respects. Firstly, where parties have expressly ousted the jurisdiction of the Court in deciding that any dispute arising between them be settled through arbitration, the Court is duty bound to uphold the arbitration agreement between them. This is notwithstanding the fact that the dispute arises from a decision to call up a Performance Bond in which one party is not privy to. The fact that the Performance Bond was a creation of the agreement between the parties in which the arbitral clause emanated is sufficient for the Court to hold parties to the terms of their agreement. In doing so, the High Court affirmed the sanctity and commercial importance of on demand guarantees.
Secondly, the Court will be reluctant to grant interim orders of protection where it has already stayed the matter and referred the proceedings to arbitration, on the basis that it is now functus officio i.e. it has already rendered its decision in the matter and therefore lacks the power to make any further orders.
About Oraro & Company Advocates
Oraro & Company Advocates is a full-service market-leading African law firm established in 1977 with a strong focus on dispute resolution and corporate & commercial law. With a dedicated team of partners and associates, the firm has been consistently ranked by leading legal directories such as Chambers Global, IFLR1000 and Legal 500 as a top-tier firm in Kenya.
Oraro & Company Advocates prides itself in its deeply rooted client relationships by providing quality legal services through its partner-led approach, drawing from local knowledge and global perspectives.
The firm is a full Affiliate Member of AB & David Africa, a Pan-African business law network committed to ensuring that businesses and projects succeed in Africa, by helping clients minimize the risks associated with doing business in the continent. This enables the firm to offer cross-jurisdictional legal advice in a seamless manner, while maintaining the highest professional standards.
