A general word on injunctions

The need to preserve the status quo in favour of a client during the tenancy of a suit or after the suit has ensured the proficiency and popularity of injunctions as civil remedies. There is no denying that an injunction is a versatile remedy. It is also a unique one in that it is available preliminarily as an interim order and also as final relief upon judgment on merit.

But what injunctions really are a matter that practicing advocates as have been loath to interrogate. This is mainly because of the alleged academic nature of such exercise. But on clear inspection, the matter is seldom academic, at least it presents useful knowledge for counsel who does not wish to be caught off-guard. This article seeks to purge the ignorance of what is generally the nature of injunctions.

Courts on remedy of injunction

With unprecedented generosity of spirit in judicial description, injunctions generally have been variously described by courts. For one, the order of injunction has been called the strong arm of equity. Injunctions have also been generously described as 'drastic remedy', 'formidable weapon' and 'transcendent or extra-ordinary remedy'. See R. Kuloba's Principles of Injunctions for more details.

In ordinary parlance, an injunction mean a command, directing/or enjoining or being enjoined. The Reader's Digest Illustrated Oxford Dictionary (1998) defines the word 'injunction' as an authoritative warning or order.

Dictionary meaning of injunction

In the legal setting the word injunction originates from the Latin word 'injunctio' which was the legal word given to a judicial order restraining a person from an act or compelling redress to an injured party.

In the authoritative book, Principles of Injunction, the learned Kuloba J paraphrasing Brar, Ag.J in a ruling in Ex parte Mayfair Bakeries Ltd, H.C Misc C.C. No. 246 of 1981 defines an injunction as:

'a solemn and authoritative remedial judicial command of a court of equity, generally acting in personam, couched in a formal order or decree directed against a person named in it and requiring him to take positive steps to do or to refrain from doing or persisting in the doing of an act or continuing a particular omission, which is precisely spelled out in the order or decree."

Injunction defined

The long and short of the above definition, in my view, is that an injunction is a an equitable judicial remedy in an order or decree requiring a named person to do, refrain from an act, stop an act or omission strictly stated therein. What emerges from this is that as equitable remedy, injunction is a discretionary remedy and, in addition a remedy that can be granted by a court acting in personam. Equity acts in personam to avoid making orders in vain!

Thus injunction will not generally issue where it is requested to apply to the whole world i.e. in rem. Same way, an injunction will not be granted where another remedy, say damages, will suffice to compensate the injury of the act sought to be restrained.

Main classifications of injunctions

Loosely, injunctions admit to two main classifications. That is based on their permanence i.e. perpetual injunction and temporary injunction and, based on their innate nature i.e. prohibitory injunction and mandatory injunction. There are other two injunctions, namely quia timet injunction and ex-parte injunctions. These do not, strictly speaking, merit a class of their own and it would serve to describe them merely as special injunctions. They are special injunctions because, overall, they are merely mutations of the other established injunction for purposes of meeting a special need.

Perpetual injunction

A perpetual injunction is a perpetual relief granted at final judgment on the merits of the case. It serves to curtail future similar infringements similar to the one in the current claim and therefore save the Plaintiff and the court the strain of having to deal with every future infringement individually.

Temporary injunction

A temporary injunction on its part is provisional and mainly engendered in an order of the court, usually pursuant to an application under Order XXXIX of the Civil Procedure Rules. Essentially, it lasts for a defined time or occasion defined by the order in contrast to the perpetual injunction. It is also called an interlocutory, interim or preliminary injunction as it affords a relief preliminary to the final one afforded by a judgment on merit.

Ex-parte injunction

Where the matter sought vide the injunction is urgent to wait service and hearing to the opposite side before the same is arrested, an application for temporary injunction seeking first that service in the first instance be done away with and the matter is be heard urgently is usually the is what is made. In such an instance, the court may make the order for injunction as sought without giving the other side an opportunity to be heard. Such an injunction is what is called an ex parte injunction. It usually lasts 14 days unless extended by the parties on consent e.g. by adjourning inter partes hearing of the injunction application beyond the 14 days.

As for the class of injunctions based on their nature, it is important to note from the onset that these can be temporary or perpetual depending when they are sought and/or ordered. So that a prohibitory injunction may be issued in an application for temporary injunction as it may be issued in the final judgment. Same way, a mandatory injunction may be issued as a temporary order and also as a relief in the final judgment.

Mandatory injunction

A mandatory injunction, as the name suggest, is a order commanding the person against whom it is issued to do a given act to remedy a condition or, at least, to do his legal duty. Its key characteristic is that it requires the doing of a mandatory injunction was issued was to compel the only commercial electricity supplier in Kenya to resume supply of electricity to a client during the currency of suit over distribution of electricity.

Prohibitory injunction

On the other hand, a prohibitory injunction is the original, more common and most ancient of compared to mandatory injunction. It is distinguished in that it does not require any positive action on the part of the person against whom it is made. The injunctive order seeks to restrain the actions of the person named in the order from doing the stated action. For instance, an injunction may be sought against a party to restrain it from demolishing fixtures in suit land.

Quia timet injunction

A prohibitory injunction may also prohibit the continuation of a wrongful act or even an anticipated one. In the latter case, it comes in the form a quia timet injunction. Here, the harm sought to be prevented usually has not occurred but it is anticipated and/or threatened. The injunctive order is thus sought to prevent the future occurrence.

Richard Kuloba in his already cited book on injunctions observes that it looks like the quia timet classification is a mere luxury given that all injunctions look to the future and prevent apprehended injurious acts or omissions. With respect, the learned judge cannot be right on this point. There is no doubt that the main feature of quia timet injunctions that distinguish it from other injunction is merely what distinguishes anticipatory bail from normal bail. It is the fact that there is no action at present that may be said to have precipitated the application for injunction.

Conclusion

In a nutshell, injunctions are equitable remedies either in form of an order or decree requiring a particular action, whether restraint from or doing the same, from the person against whom they are issued. There are mainly two classes of injunctions and a third one made of special injunctions.

Finally, we have established that injunctions may be loosely said to be of six types: perpetual injunctions, temporary injunctions, prohibitory injunctions, mandatory injunctions, quia timet (anticipatory) injunctions and ex-parte injunction. Each of these is unique depending on the nature, the timing and context of the order or relief it supplies.