GUIDE TO INJUNCTIONS IN KENYA

A temporary injunction is an order made in the early stages of a lawsuit or petition which prohibits the parties from doing an act in order to preserve the status quo until a pleading ruling or outcome. The main purpose of such an injunction is to keep the parties, while the suit is pending, as much as possible in the respective positions they occupied when the suit began and to preserve the court’s ability to render a meaningful decision after a trial on the merits. 

An application for temporary injunctions is supposed to be granted with due consideration of the guidelines laid in place by the court in the case of Giella v Cassman Brown & Co Ltd. The guidelines, which have been expressly approved by the supreme court of India and several other courts worldwide are expressed as thus: 

1. The plaintiff must satisfy the court that there is a prima facie case with a probability of success; and that if the defendants were not restrained and the plaintiff ended up winning the case then damages at common law would be insufficient and inadequate compensation for the loss that would otherwise be incurred. 

2. Whether justice would be best served by an order of injunctions. 

3. The court should not make a decision on the merits of the parties’ respective cases for the sole purpose of warding off any uncertainty regarding the rights of the parties by any decision that could be forthcoming. 

In line with the above, where there arises any uncertainty, the courts are advised to shun from the issuance of an injunctive relief to which effect the parties’ rights are settled once and for all. This study forms its basis from the lack of balance between the concepts of irreparable damage, which is often viewed as straightforward; and that of balance of convenience which is a striking contrast of the former. Evidence of this assertion is rightly seen from Laddie J’s pronouncement in the Series 5 Software case. In the present case, the court considered the observations by the House of Lords in the American Cyanamid5 case as such: 

“In many cases before American Cyanamid, the prospect of success was one of the important factors taken into account in assessing the balance of convenience. The court would be less willing to subject the plaintiff to the risk of irrecoverable loss which would befall him if an injunction in those cases where it thought he was likely to win at the trial than those cases where it thought he was likely to lose. The assessment of prospects of success was therefore an important factor in deciding whether the court should exercise its discretion to grant an interim relief. It is this consideration which American Cyanamid is said to have prohibited in all but the most exceptional case. So it is necessary to consider with some care what was said in the House of Lords issue.” 

In light of this advancement and with due regard to the pronouncements by the House of Lords in the American Cyanamid case, the relative strength of the parties’ case should be looked at with keen interest, but in so doing, courts are prompted not to enter into a mini-trial since applications for injunctive reliefs are originally meant to come in quickly and be disposed of in a similar fashion. It has however been the norm in recent times that such applications end up taking a huge chunk out of the time that would have been used to dispose of the parent course of action and as a result, parties to the suit are often inconvenienced. At the point of conclusion of hearing applications for injunctions it is usually realized that the proverbial irreparable damage that one ought to be protected against by the use of injunctions occurs before the application has been successfully disposed of therefore begging the question as to their relevance. 

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