Interim Relief in Kenya: Securing Your Interests

In Kenya, interim relief serves as a critical mechanism for protecting the rights and interests of parties pending the final determination of a dispute. Interim relief, particularly in the form of interim injunctions, ensures that the subject matter of a case is preserved, preventing irreparable harm and maintaining the status quo until the court delivers its final judgment. This article explores the legal framework, principles, and criteria for obtaining interim injunctions in Kenya, with a focus on the seminal case of Giella v Cassman Brown & Co Ltd [1973] EA 358 and other relevant judicial precedents.

Interim relief refers to temporary remedies granted by a court to preserve the rights of a party during litigation. These remedies include interim injunctions, stay orders, and other preservative measures. Interim injunctions, in particular, are court orders that restrain a party from performing a specific act (prohibitory injunction) or compel a party to perform a specific act (mandatory injunction). They are governed by the Civil Procedure Act, Cap 21 and the Civil Procedure Rules, 2010, specifically Order 40, which outlines the procedural requirements for seeking such relief.

The primary purpose of interim relief is to prevent irreparable harm, preserve the subject matter of the dispute, and ensure that justice is not frustrated by actions taken before the case is fully heard. Courts exercise discretion when granting interim injunctions, guided by established legal principles and case law.

In Kenya, the legal basis for interim injunctions is rooted in the Civil Procedure Act and Civil Procedure Rules. Order 40, Rule 1 of the Civil Procedure Rules provides that a court may grant an injunction where it appears just and convenient to do so, particularly when:

a) Any property in dispute is in danger of being wasted, damaged, or alienated.

b) The defendant threatens or intends to remove or dispose of their property to defraud creditors.

c) The plaintiff demonstrates a prima facie case with a probability of success.

However, the most authoritative guidance on the criteria for granting interim injunctions in Kenya comes from the landmark case of Giella v Cassman Brown & Co Ltd [1973] EA 358. This case remains the cornerstone for determining applications for interim injunctions in Kenyan courts.

Inthe case, the court established a three-part test that applicants must satisfy to obtain an interim injunction. These principles have been consistently applied in Kenyan courts and are as follows:

1. Prima Facie Case with a Probability of Success

The applicant must demonstrate a prima facie case with a reasonable probability of success at the trial. This does not mean proving the entire case at the interlocutory stage but showing that there is a serious question to be tried. The court evaluates whether the applicant's claim raises triable issues based on the evidence presented.

In Giella v Cassman Brown, the court emphasized that the applicant must present a case that, on the face of it, is not frivolous or vexatious. For example, in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125, the Kenyan Court of Appeal clarified that a prima facie case is one where a serious question is raised, supported by evidence that, if uncontroverted, would likely lead to a favorable judgment.

2. Irreparable Harm Not Adequately Compensated by Damages

The applicant must show that they would suffer irreparable harm if the injunction is not granted, and that such harm cannot be adequately compensated by an award of damages. Irreparable harm refers to damage that cannot be quantified or remedied through monetary compensation.

For instance, in Paul Gitonga Wanjau v Gathuthi Tea Factory Company Ltd & 2 Others [2016] eKLR, the court held that irreparable harm exists where the subject matter of the dispute, such as land or unique property, risks being destroyed or alienated, rendering the final judgment ineffectual. Courts assess the nature of the harm and the adequacy of damages as a remedy on a case-by-case basis.

3. Balance of Convenience

If the court is in doubt about the first two criteria, it will consider the balance of convenience, which involves weighing the potential harm to the applicant if the injunction is denied against the harm to the respondent if the injunction is granted. The court aims to determine which party would suffer greater injustice.

In American Cyanamid Co v Ethicon Ltd [1975] AC 396, the court emphasized that the balance of convenience tilts toward maintaining the status quo. Kenyan courts have adopted this approach, as seen in Kenya Commercial Bank Ltd v Kenya Planters Co-operative Union [2010] eKLR, where the court granted an injunction to preserve the status quo pending the hearing of the main suit.

Beyond the Giella v Cassman Brown criteria, courts consider other factors when deciding applications for interim injunctions:

1. Urgency and Timeliness

Applications for interim injunctions must be made promptly. Delay in seeking relief may prejudice the applicant's case, as courts may interpret it as an indication that the harm is not urgent. In Nguruman Ltd v Jan Bonde Nielsen & 2 Others [2014] eKLR, the Court of Appeal emphasized that undue delay could undermine an application for interim relief.

2. Undertaking as to Damages

Applicants are typically required to provide an undertaking to compensate the respondent for any losses suffered if the injunction is later found to have been wrongly granted. This requirement protects the respondent from potential injustice.

3. Public Interest

In cases involving public interest, such as environmental disputes or matters affecting public resources, courts may consider the broader implications of granting or denying an injunction. For example, in Okiya Omtatah Okoiti v Cabinet Secretary, Ministry of Environment and Natural Resources & Others [2018] eKLR, the court considered public interest when granting an injunction to halt activities that could harm the environment.

4. Discretionary Nature of Injunctions

The granting of an interim injunction is a discretionary remedy, and courts exercise this discretion judiciously. Factors such as the conduct of the parties, the strength of the evidence, and the overall justice of the case influence the court's decision.

To obtain an interim injunction in Kenya, an applicant must follow these procedural steps under Order 40 of the Civil Procedure Rules:

- File an Application: The application is typically made by way of a Notice of Motion, supported by an affidavit outlining the grounds for the injunction and evidence supporting the Giella v Cassman Brown criteria.

- Ex Parte Application: In cases of urgency, the applicant may seek an ex parte injunction, which is granted without notice to the respondent. However, such orders are temporary and usually followed by an inter partes hearing.

- Service of Documents: The applicant must serve the respondent with the application and supporting documents unless the court dispenses with this requirement in urgent cases.

- Inter Partes Hearing: Both parties present their arguments, and the court determines whether to grant, vary, or discharge the injunction.

- Compliance with Court Orders: If granted, the applicant must comply with any conditions imposed by the court, such as providing an undertaking as to damages.

While interim injunctions are powerful tools, they come with challenges. Respondents may argue that the applicant has not met the Giella v Cassman Brown criteria, leading to contentious litigation at the interlocutory stage. Additionally, the discretionary nature of injunctions means that outcomes can vary depending on the judge's interpretation of the evidence. Overuse or misuse of interim injunctions can also lead to delays in litigation, frustrating the expeditious resolution of disputes.

Conclusion

Interim relief, particularly interim injunctions, plays a vital role in Kenyan civil litigation by safeguarding the interests of parties pending the resolution of disputes. The principles established in Giella v Cassman Brown & Co Ltd [1973] EA 358—a prima facie case, irreparable harm, and the balance of convenience—provide a robust framework for courts to evaluate applications for interim injunctions. Supported by other precedents like Mrao Ltd and Nguruman Ltd, these principles ensure that interim relief is granted only when justified, balancing the rights of both parties and the interests of justice.

For litigants seeking interim injunctions, a thorough understanding of these criteria, coupled with timely and well-documented applications, is essential. By adhering to the procedural requirements and presenting compelling evidence, applicants can effectively secure their interests while awaiting the court's final determination.