Plan to rethink injunction rules timely

The legal system in Kenya has its foundation structured on the English common law and doctrines of equity. Under common law, if a citizen is wronged, he can only ask for damages, an extremely inadequate remedy. Over the years, a body of law has developed all covered by the law of equity which established remedies which are considered an epitome of fairness and justness.

When it comes to remedies, equity largely ignores the common law practice of money remedies and typically orders the defendant to do something.

One of the most utilised equitable remedy is injunctions. This remedy has recently come into great scrutiny and last week when the Chief Justice visited Nairobi County Government Governor, Evans Kidero, the matter of granting injunctions “indiscriminately” by the judiciary was discussed.

Willy Mutunga has intimated that the Judiciary could soon review its policy on injunctions following hundreds of complaints costing the county billions of shillings. Dr Mutunga has agreed to have a stakeholders’ forum to review the rules and the Judicial Training Institute is likely to play an important part. Two recent high-profile examples of injunctive remedy are the Standard Gauge Railway Case at the Machakos High Court which sought to halt the development of the railway line in Kibwezi West and the Britam versus Acorn & Cytonn Case in which Britam sought to bar Acorn and Cytonn in a multi-billion real estate dispute.

Many Kenyans, human rights organisations and public interest bodies such as the Law Society of Kenya all are seeking injunctive orders in not only private disputes, but national and public matters.

Obtaining injunctions, merited or not, even against Government and county governments is interfering with development in the economic sector.

The procedural law on injunctions pervades all branches of law from contract, tort, matrimonial, constitutional, land law and even criminal law and as such, injunctive orders either require a person to do or cease to do a specific action – to perform or restrain from performing a certain action is the ultimate criteria of injunctions.

The law on injunctions is intricate, and there are different types of temporary, preventive, permanent and mandatory injunctions coupled with restraining orders.

In Kenya, the law of injunction is largely set in the Civil Procedure Act and rules enshrined thereunder, but over the years the Judiciary has developed precedents which set up the law.

The legal principle of securing injunctions is pillared on famous Court of Appeal decision case of Giella v Cassman Brown & Co Ltd [1973] EA 358 which provides that: the applicant must show a prima facie case with a probability of success and an injunction will not be granted unless the applicant otherwise suffers irreparable injury. If the court is in doubt, balance of convenience prevails and injunctions are not to be given if remedy of damages is adequate. Pursuant to Order 40 , Rule of the Civil Rules, 2010 the Court may order temporary or interlocutory injunction to restrain any dealing upon a property.

Temporary injunction is of two types, one granted immediately, till the disposal of the application for temporary injunction and the other granted till the disposal of the main suit. Generally, these injunctions are given if property is likely to be wasted, alienated or wrongfully sold or disposed.

The ironic inequality of getting remedy of injunction in Kenya is highlighted by the fact that quite often, perverse orders are obtained by parties by filing ex-parte injunctions under certificate of urgency. Ex-parte (without the other party being present) injunctions are being granted by both the High Court and Subordinate Courts and great injustice caused as parties seeking ex-parte injunction, more often than not, do not disclose all necessary facts for determinations.

Ex-parte injunctions can be granted only once for not more than 14 days and can be extended by agreement of the warring parties only and service must be made of ex-parte orders within three days of the orders being granted, failing which the orders lapse automatically. All applications of injunction must be heard and finalised within 60 days.

Despite the fact that the process of granting of temporary injunctions is governed by strict law and time frames, the legal limitations have been known to be exploited as a short cut to ultimate judgement and the course of justice abused in many cases.

In the history of injunction law, curious situations have resulted in interesting injunctions developing. There is an injunction known as the “Anton Pillar Order”. The scope of this order is that courts mandate the right to search premises and seize evidence without any prior warning, to pre-empt a Defendant from destroying evidence. This order is often used in copyright and counterfeit commodity trade cases.

The “Mareva” injunction prevents a defendant from transferring assets until the outcome of the associated law suit is decided. This is a powerful tool which has given courts wide powers to ensure judgement is not rendered worthless. It has also made legal machinery stronger and ensures realistic remedy.

The fact that the Chief Justice is prepared to look into the machinery of granting unwarranted injunctions by the judiciary is a step forward and hopefully an established judicial remedy will not be allowed to prevent development and to be abused.