There is a major difference between perpetual injunction and the interlocutory injunction.

There are 3 principles that govern the interlocutory injunction:

1.            The Prima facie Case
2.            Balance of Convenience;
3.            Irreparable injury

There is one main rule which applies in respect of Prima Facie case – a plaintiff has to show a prima facie case with a probability of success.  If the court is in doubt it will decide the matter on a balance of convenience and in deciding on the balance of convenience the court looks at the irreparable injury.
a.            Right
b.            violation-success;  that a right has been violated and that you stand a chance of succeeding;
c.            The Plaintiff must show a prima facie case for the violation of that right that is reasonably capable of succeeding.

If the court is in doubt it should decide the matter on a balance of convenience.

Doubt is as to whether the Plaintiff will succeed as the Defendant might also have a very strong case.  Where the court is in doubt it decides on a balance of convenience.  But for the court to do this it has to decide on irreparable injury.  The essence of regarding irreparable injury is to show that the damage cannot be compensated in damages.  The plaintiff has to show that if he doesn’t get an injunction, damages in form of remedy will not compensate him.  The test of irreparable damage is that damages are inadequate.

East African Industries Ltd v. Trufoods Ltd

East African Industries Ltd and Trufoods Ltd were and are still manufacturers of fruit drinks.  East African Industries as the Appellant applied to the High Court for an interlocutory injunction wanting the court to restrain the passing off of the products of Trufoods Ltd as those of East African Industries.  The Appellant claimed that Trufoods had changed the shape of its bottles.  It had also changed the shape and design of the labels so that they resembled those of East Africa Industries and the intention was to deceive.

East African Industries were seeking for a perpetual injunction in the main case but in the interim they wanted a temporary injunction to sustain the status quo.  The matter was first dismissed in the High Court where the Judge directed his mind on the labels and not the whole picture.  This High Court Judge took Judicial notice that the majority of the customers for this product would be able to read English.  The High Court Judge concluded that most people would be able to read English and not get confused.  The judge concluded that East African industry was unlikely to succeed in the suit because no reasonable ordinary shopper would be deceived by the resemblance of the two bottles and therefore the application of the interlocutory injunction was dismissed.

East African Industries went to the Court of Appeal and Spry J. decided

“I think that a prima facie case has been shown but I am not prepared to say that the outcome is so certain one way or the other that the application ought not to be decided on a balance of convenience.  An interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury which would not adequately be compensated by an award of damages.”

The High court and balance of convenience

The High Court held that the appellant co. would not suffer irreparable harm if an injunction was refused

After this case, under the English system, those rules have been expressed in a different way so that following the case of American Cynamid the English courts coached a rule using different words.  In this case the court held that we should not rely too much on the prima facie rule since it was so strict but should try and consider the serious questions to be tried.

The American Cynamid case dealt with two companies that manufactured surgical sutures.  Both companies were American companies but the defendant co. was about to release a surgical suture which the Plaintiff company claimed infringed its patent.  Had the Plaintiff established a prima facie case with the probability of success?  It was not a hard and fast rule that the plaintiff must establish a prima facie case.  All the Plaintiff needed to prove was that there were serious questions that needed to be tried.   In all cases dealing with patent matters the court must establish the matter on a balance of convenience.    It was difficult to say for sure on the right of the parties and a balance of convenience was necessary.

What does it take to establish a prima facie case with a probability of success?   It requires the court to go to matters of the trial.  What is probability of success?  What does he look for?

It was against this background that the American Cynamid was decided.  American Cynamid was decided in 1975 and it has been argued that American Cynamid varied the Prima facie rule.  However it has been argued that this new rule does not apply in Kenya.

Approval of the Cynamid Rule by courts in Kenya.

There are other factors that the court takes into account other than prima facie and balance of convenience.  For example the case must not be frivolous or vexatious.  This rule is intended not to harass the Defendant in a situation where the suit is futile or misconceived or is an abuse of the court process.

For us to say that a suit is not all of the above, we must show that it is serious.

The court looks at the conduct of the parties

There may be conditions and undertakings.  The court can grant an interlocutory injunction with conditions.  The court can also ask one of the parties to give an undertaking usually the Plaintiff is asked to give the undertaking in damages.  i.e. a certain sum must be pledged to court so that if the Plaintiff is not successful, they can pay the Defendant damages.  The effect of not honouring an undertaking to the court is contempt of court.

Case Law -  where these rules have been applied

BAT (K) Ltd v. Cut Tobacco  - East African Industries v. Trufoods decision.

Simon Waiharu Chege – the court used prima facie standards.

Woodcrafts Ltd v. East Africa Building Society – Justice Ringera used the prima facie case standard.

Central Bank v. Uhuru Highway Development Ltd – the court emphasized balance of convenience indicating a shift towards American Cynamid.


  1. Delay
  2. Acquiescence
  3. waiver
  4. Hardship
  5. Conduct of the Plaintiff;


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