Interlocutory – those made before trial

An interim injunction may be granted to last a certain period of time – the categorisation

The broad categorisation is between permanent and interlocutory – under this we have temporary which are meant to last up to a certain time.

Prohibitory Injunction – meant to prohibit or restrain a party from performing certain act.   It prohibits or refrains the defendant from doing certain things, mandatory requires the respondent to do certain things.  The aim is to retain or put the applicant in the position before the application was brought to court.

Mandatory injunctions require a higher level of proof than ordinary injunctions.  Order 40 Rule 1 – the requirements are settled, if the court is in doubt then on a balance of convenient – Giella V Cassman Brown 1979 EA East African Industries V TRUFOODS EA 420

Order 40 presupposes the existence of a suit under Rule 1 and because of the urgency, one has to go under a certificate of urgency so that commencement of action is simultaneous with filing of the action.  The court wants to look at the facts stated in the plaint and the evidence constituted in the supporting Affidavit to find out whether it is possible to reach the kind of conclusion that favourable to the applicant.  The court is not interested in conflict facts or evidence but to look at the facts as stated in the plaint and the affidavit.  If the court can see there is a case then it has a prima facie case Uhuru Highway Development v CBK Civil Appeal No. 75 of 1998  LLR 389 – there was an attempt to discredit Giella v Cassman Brown.  Counsel was attempting to discredit Giella and persuading the Court to accept the American Cyanamide case

In 1975 in American Cynamide v Ethicon 1975 AC 396 the House of Lords gave guidelines and principles to apply when an applicant comes for an interlocutory injunction.  The court held that the most significance of these principles was that it was not necessary for the court to be satisfied that on a balance of probabilities the plaintiff had made a prima facie case of succeeding at trial.   It would appear that the House of Lords went for a lower standard than the one in Giella Cassman, they were suggesting for one to look for the balance of probabilities and see who it favours the plaintiff or defendant.  Counsel was urging the court in UHDL was that he should abandon principles of giella and adopt American cynamide.  American Cynamide principles had been accepted in most common law jurisdictions.  The Judges held that

Prima facie case with a high probability of success
Irreparable injury that cannot be compensated with damages.
Balance of convenience   equals Giella Cassman

Order 40 does not provide for mandatory injunctions and the jurisdiction is found in Section 3A but if the purpose of the mandatory injunction is to preserve the status quo.  Hand in hand for an order of a mandatory injunction would be an order to restrain the defendant from doing that which he has done, so first you apply for mandatory and then interlocutory.

Section 3A and Order 40 Rule 1

The authority for grant of mandatory injunctions are
1.            Belle Maison v Yaya Towers  HCC 2225 OF 1992
2.            Kamau Mutua v Ripples HCCC

The standard of prove in mandatory injunctions is higher than that in interlocutory, the standard is that the court must be convinced that at the time of the trial the injunction which they had granted was not granted irregularly.  One must have a strong prima facie case.  in an interlocutory the court may apply the test that it is a possible conclusion given the evidence adduced at this point.  Under mandatory, the court will be trying to test whether there are other possible conclusions and want to be convinced whether this is the only possible conclusion given the fact and evidence.  The court may be reluctant to grant a mandatory injunction.  If the court is satisfied that you case warrants a mandatory injunction but the cause for which it is sought have not been achieved.  If the court refused to grant the mandatory it must also refuse the interlocutory and ask for inter-parties.  If the court is convinced that the standards are met then it will grant both.

The other requirement as a fourth requirement since Giella Cassman is the standard as to damages, the plaintiff files an undertaking as to damages undertakes to pay damages to the Defendant should it be found that the order was improper.

No temporary injunction is required to last more than 14 days.  All exparte orders last 14 days and not more than that.

If a party who has been served with an order, since it is a requirement to serve the other party with a penal notice.  The penal notice warns the party that in the event of failure to comply with the order, then the party risks imprisonment for six months.  If the party says that they were not aware of the penal notice, without the penal notice you cannot take a party to prison and usually they will deny to have ever been aware of the penal notice. 

Sanctions are imprisonment for defaulting, attachment of property, fines, the court can also reprimand in case the party ignores a penal notice.   Against a corporation one can arrest directors or go for an order for sequestration meaning that you attach the property of the corporation in lieu of default.    One must be sure to phrase that directors are liable to imprisonment or alternatively the property of the corporation will be attached and sold.   Maybe the corporation may be required to furnish security.  Rule 7 Order 40 if it turns out the injunction was irregularly granted, the respondent/defendant can apply for discharge.  Other grounds for discharge would be for failure to disclose material facts refer to Tiwi Beach the respondent can apply for discharge.

No injunction can be issued against the government Section 16 Cap 40, Court of Appeal under Rule 5 (2) (b)  is empowered to grant injunctions for the purpose of preserving the property the subject of the suit.  Refer to Stanley Githunguri v Jimba Credit C. A. 197 of 1998  one approaches the court of appeal under Rule 5 (2) (b) and one must have an arguable case before the court of appeal and the order you are seeking must show that if not granted then the appeal will be rendered nugatory.

You approach the court by way of, how do you commence the action under Rule 5 (2) (b) – you are asking the court to preserve the status quo – you go to court with

Direction of application for stay of execution or approach the court with a miscellaneous application, the court is exercising its jurisdiction under Rule 5 (2) (b), does one need to commence a suit in this case.  the procedure does not have to follow the one stated under Order 40


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