TEMPORARY INJUNCTION

THE TYPES OF TEMPORARY INJUNCTION GIVING DECIDED CASE

LAW AND EXAMPLES
This is the most widely used type of injunction it refers to a court order
prohibiting an action by a party to a law suit until there has been a trial or
other court action, it purpose is to prevent resolution of the plaintiffs rights.
Temporary injunction can be claimed against all or against a few defendants
only, depending upon the fact as to who is interfering with the rights of the
plaintiffs
Once a temporary injunction is granted, it is open to the defendant to ask the
court to vacate the same, in appropriate cases, on the ground of changed
circumstances [Order 39 Rule 4]; Temporary injunction has great legal
sanctity. Once a person is temporarily injuncted from doing an act, the person
suffers penal consequences if he violates the order
There are of two types
1. Interlocutory injunction
2. Interim injunction
INTERLOCUTORY
In Kenya it is embodied in the civil procedure act cap 21 order 30, it refers to
an injunction granted before the hearing of the main suit or before

determination of the main suit, it is asked where there is a suit in existence

and in progress but before judgement.
There are three principles that govern the interlocutory injunctions
1.

There must be a prima facie case

2.

Balance of convenience

3.

There must be irreparable damage

Nawab Mir Barkat Ali vs. Nawab Zulfiquar AIR 1982 A.P. 384, the court held
that the petitioner shall (i) make out "prima facie" case (ii) show that balance
of convenience is in his favour and (iii) show that he would suffer irreparable
loss if temporary injunction is not granted in his favour. Further, the first
condition being "sine qua non", the plaintiff must prove one of the remaining
two conditions for grant of temporary injunction.
In respect of prima facie case, it was held in K. Karunanidhi vs. R.
Ranganathan Chettiar AIR 1973 Mad 443 that prima facie case does not mean
the thorough examination of the rival claims by the court.
It was observed in M.K. Dasappa vs. G. Ramachandra: AIR 1976 Kant.
53that in deciding prima facie case the court are to be guided by the apparent
strength or otherwise of plaintiffs case as revealed in the affidavits or other
material. In Deity Kashiswar Mahadev vs. Gram Sabha: AIR 1973 H.P. 2, the
court pointed out that the plaintiff need not prove his title to the property in
temporary injunction petition and that it is enough if the plaintiff can show
that he has a fair question to raise as to existence of right of which he alleges
and can satisfy the court that the property in dispute should be preserved in
its present actual condition until such question is disposed of

Balance of convenience is the inconvenience of the plaintiff which shall far

exceed the convenience of his opponent in the event of refusal of the relief.
Irreparable loss is the loss the plaintiff suffers if order is not granted to him
and that the loss would be such that it cannot be compensated monetarily or
otherwise
An interlocutory injunction is futher divided in an ex parte.
This type of injunction is granted with respect to or in the interest of one side
only
There two cases in which an ex PERTE application is justified
1. The case of of the mareva injunction is where there is reason to fear that
before hearing one would have already incurred damages
2where the element of urgency is so great that it would be impractible to give
notice
It is well established to be granted an ex parte injunction there must be
serious urgency to the injunction been granted that might otherwise give rise
to an imperrable damage to the plaintiff.
A PLAINTIFF should only apply for an injunction ex parte where it is
genuinely impossible to give any notice to the defendant of the order sought
without defeating the purposes of the order.
Circumstances by which interlocutory injunction may be granted
1.

Locus standi- a perpetual injunction is only granted at the instance of a

person who has a justifiable right before the court, In the following
instances the is justifiable

A. If the claimant has a present cause of action against the defendant

B.

If the claimant would have as a cause of action, were the defendants

to act as he threatens to do.

C. If the defendant is behaving unconscionable.

this principle were outlined in The court of Appeal sitting in Mombasa in the
recent case of Mrao Limited VS First American Bank of Kenya Ltd & 2
others [2003] KLR 125 applied the Giella case (supra) and settled the law on
conditions for interlocutory injunction with its resultant holdings. Firstly, it
held that the power of a court in an application for interlocutory injunction is
discretionary. Secondly, it held that the principles for granting an
interlocutory injunction are that
A party will not have standing to bring a claim if he does not have some
property right or interest in the subject matter of his complaint.
In Day verse brownrigg the court refused to grant an injunction to the
defendant from calling his house as the same name as the claimants house
although the parties lived next door to each other and the name had been used
by the claimant for sixty years: there is no legal or equitable right to the
exclusive use of the name of a private resident.
Where special damage is an essential ingredient in a cause of action as, in the
tort of slander of tittle, no injunction will be granted in the absence of the
proof that special damage has been suffered or would be suffered unless an
injunction would be granted.
It was held if you must have in our law injury as well as damage.

If a man erects a wall on his property and therefore destroys the views from
the house of the plaintiff he may damage him to an enormous extent, if he has
the right to erect the wall the mere fact of causing damage does not give the
plaintiff the cause of action.
In the case of white verses Melvin 1895 ac the claimant was refused an
injunction to restrain the defendant from affixing a label vaunting the
superiority of his own goods when he retailed the claimants good, it was held
if the cause of action is perfect without proof of special damage it is sufficient
for the claimant to establish his rights and it is infringement thus he may
obtain an injunction even though no damage was suffered.:

INTERIM INJUNCTION
They are granted prior to final resolution of dispute. Is main function is to
maintain a status quo or ensure justice is delivered at trial.
Order 39 Rule 3 points out that ordinarily temporary injunction shall be
granted only after giving notice to other side and after hearing both sides.
Where interim injunction is ordered without notice, the plaintiff shall send to
the defendant, in registered post, the copies of petition, affidavit, plaint and
documents relied upon by the plaintiff
A test to apply when considering whether an interim injunction should be
granted remains that laid down by the House of Lords in American Cyanamid
co. vs. Ethicon ltd. In this case it was held that the claimant needs to establish
only a real possibility of success and not a probability[5]
Grounds to interim injunction

The power of a judge siting in the high court is to grant an injunctions against
a party to proceedings properly served arises out of the courts inherent
jurisdiction.
1.

Where it appears to the court to be just and convenient so to do so.

However, as a matter of settled practice the court will only exercise that
jurisdiction in limited circumstances.

2.

Available where there is a dispute as to the substantive rights of an

individual or parties.

3.

Where there is no prospect of trial. Where the grant or refusal of an interim

injunction will have the practical effect of putting an end to the action.

4.

If there is a clear case. Where there is no serious question to be tried, an

injunction will be refused. Conversely, if at the interim stage it is plain that
the claimant is in the right, the balance of convenience will play no part, e.g.
where the claimants title is clear and the defendants is indisputable. Or where
the defendant is in clear breach of the covenant which binds him.

5.

Freedom of expression. Where an interim injunction might affect the

exercise of the right to expression, it will normally be necessary to show more
than a real prospect of success.