Where do you think lawyers come from?

An anxious 15 year old girl comes home from school.
"Mum", she asks tentatively, "can you get pregnant from anal sex?"
"Don't be silly of course you can", replies her mother, "where do you think lawyers come from?"

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COURT OKs FOREIGNER'S DENIAL OF WORK PERMIT

Republic v Minister for Home Affairs & 2 others ex parte Leonard
Sitamze [2008] eKLR

High Court at Nairobi, Justice J.G. Nyamu, April 18, 2008.

The High Court has declined to reverse the decision of the Principal
Immigration Officer to refuse to issue a work permit to a foreign
national.

Leonard Sitamze, a Cameroonian national, had filed an application in
the High Court seeking a judicial review of the decision of the
Minister for Home Affairs and the Principal Immigration Officer in
which his application for a Class "H" work permit was declined. A
Class H permit is one of several types of work permits which an
Immigration Officer may issue to a foreigner. The discretionary power
to issue the permits is given to the Immigration Officer by section 5
of the Immigration Act.

Sitamze had told the court that he had been running a successful
company in Kenya with the aid of his wife, Josphine, a citizen of
Kenya, and that he had been issued with both a trading license by and
a certificate of good conduct. He stated that the police had
wrongfully accused him of not being in possession of valid
immigration documents and subjected him to intimidation, harrassment
and inhuman treatment. Sitamze termed the decision of the Minister
and Immigration Officer as discriminatory and unjust and amounting to
a denial of his right to the quiet use and enjoyment of his property,
his right to found a family as enshrined in Article 5 of the
Declaration of the Human Rights of Individuals Who Are Not Nationals
of the Country on Which They Live and Article 6(2) of the
International Covenant on Economic, Social and Cultural Rights
(ICSR).

He asked the High Court to issue the special order of mandamus to
compel the Minister to issue him with a class "H" work permit and an
order of Prohibition to forbid the Commissioner of Police from
harassing him, arresting him or hindering his free movement in Kenya.


The Minister, the Commissioner of Police and the Principal
Immigration Officer, who were named as the respondents to the court
action, all opposed Sitamze's application. They relied mainly on the
argument that they had acted in accordance with the provisions of the
Immigration Act empowering the Minister to issue a permit to a
foreigner after all the conditions for the issuance had been
satisfied and to direct the removal from Kenya of any person whose
presence is found to be unlawful. A classified document was produced
to the Court on behalf of the state as part of the Immigration
Department's evidence that Sitamze's presence in Kenya posed a threat
to national security.

Judge J. Nyamu agreed that indeed, the Minister for Home Affairs is
authorized by law to issue work permits to foreigners and in that
regard, the Minister would the best person to decide whether a
foreigner who seeks a permit has met the requirements provided by
law. In the Judge's view, it would be wrong for the Court to
interfere with the decision made by the Minister unless it is shown
that the decision has been made in abuse of discretion or of a legal
duty. The same considerations applied to the actions and decisions
taken by the Kenya Police who had a legal mandate to maintain law and
order and to detect and prevent crime. "Work permits are not an
automatic entitlements and have to be issued in accordance with the
domestic law" the Judge further noted. "They could be refused on
reasonable grounds and in the national interest". In any case, the
Court was satisfied that even though the fundamental rights enshrined
in the Constitution of Kenya were to be enjoyed by both citizens and
foreigners, Sitamze had failed to establish that he had been
subjected to torture or inhuman punishment by the police.

The Court appreciated that under the ICSR, to which Kenya was a
party, the right to work is a fundamental right. Sitamze was entitled
to the right to work and to seek redress if the right was infringed.
Further, under the Declaration on The Human Rights of Individuals Who
Are Not Nationals of The Country in Which They Live, he was entitled
to the right to choose a spouse, to marry and to found a family.
However, as an alien, the same Declaration obliged him to observe the
domestic laws of the State in which he was present and to regard with
respect the customs and traditions of the people of that State.
Sitamze had failed to prove that he had been discriminated against or
that his right to found a family had been violated.

Justice Nyamu was satisfied that the State had adduced sufficient
evidence to demonstrate that Sitamze's presence was a threat to
national security and this was a valid reason to decline to issue him
with a work permit. It would be wrong, he further observed, to
discriminate against a foreigner where he has created legitimate
employment for himself and his family but where there are national
security concerns, the Minister would be entitled to decline to issue
a work permit or to renew an existing one. Such a decision would not
constitute a violation of the constitutional and international human
rights to work and to establish a family life. The foreigner would
have a choice to emigrate with his family to his country of origin.
In this case, however, the Court was satisfied that Sitamze had
failed to prove that his right to family had been breached and that
in any event, the national interest would prevail.

Ultimately, the Court found that there was no merit in Sitamze's
application and it was dismissed.

Download Case


Reported by Michael Murungi, Advocate
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Law maketh business for itself

The one great principle of English law [and incidentally law the world over] is to make business for itself.

-Charles Dickens-

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Why a lawyer's brain is expensive!

A man went to a brain store to get some brain to complete a study. He sees a sign remarking on the quality of professional brain offerred at this particular brain store. He begins to question the butcher about the cost of these brains.

"How much does it cost for engineer brain?"

"Three dollars an ounce."

"How much does it cost for programmer brain?"

"Four dollars an ounce."

"How much for lawyer brain?"

"$1,000 an ounce."

"Why is lawyer brain so much more?"

"Do you know how many lawyers we had to kill to get one ounce of brain?"

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Introduction to and first condition of grant of Temporary injuunctions

The need to preserve the status quo in favour of a client during the tenancy of a suit has ensured the proficiency and popularity of temporary injunctions as one of the interlocutory orders afforded by the modern civil procedure rules. Temporary injunctions come in handy in diverse situations not least in land matters when the suit property has to be preserved either from transfer, encroachment or even demolishing.

Only recently, the versatile nature of temporary injunctions was affirmed by courts in Kenya upon issuing the same in favour of a Matatu owner. The injunctive order had the effect of keeping the litigant's substantial fleet of minibuses within Central Business District while the court was interrogating the validity of the City Council of Nairobi's directive that all matutus plying Jogoo Road (a busy highway leading from middle class residences into Nairobi) keep off the CBD. The order, which was ex-parte, has since been vacated when the same cam for inter partes hearing.

Definition of Temporary injunction

An injunction is classified as temporary as opposed to a permanent one. A temporary injunction is basically a provisional order of the court made pursuant to an application under Order XXXIX of the Civil Procedure Rules. Like all injunctions, temporary injunctions are orders requiring a named person to do, refrain from an act, stop an act or omission strictly stated therein.

Essentially, a temporary injunction 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.

Types of temporary injunctions

A temporary injunction may be either prohibitory or mandatory. A prohibitory temporary injunction requires the subject of it to refrain from specified acts for a given time ussually during the pendancy of the suit. A mandatory temporary injunction requires the doing of certain acts and/or carrying out of legal duties already being ommitted by the subject(s) of the orders. For instance, such order may require a school to re-admit an expelled pupil to school during pendancy of a case on the matter of the expulsion.

When the circumstances afford, a temporary injunction may be obtained ex-parte pending inter-partes hearing. However, ex-parte injunction 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.

At times, the court may refuse to grant an ex-parte injunction and choose to set the application inter-partes especially where the wrong has been already done. For instance, this happens in defamation matters where the defamatory material has already been published and there is only remote chance of a re-run of the story.

A quia timet temporary injunction may be granted to restrain/prohibit an anticipated wrongful act or omission. An example is where a party anticipates a demolition of a house by a local authority. Injunction may be obtained restraining/prohibiting such future/threatened demolition. The equity here seeks to save the propriator the agony of waiting the demolition without remedy.

Functions of temporary injunctions

On the function of temporary injunctions as equitable remedies, we look up to the case of Noormohamed Janmohamed versus Kassamali Virji Madhani [1953], 20 EACA 8. In the case, the court stated that Kenyan courts 'have always understood that the whole purpose of an injunction is that matters ought to be preserved in status quo until the question to be investigated in the suit can finally be disposed of'.

From the above statement, it seems clear that the object of temporary may be said to be "to preserve or restore the pre-dispute state until the trial or until a named day or further order." This is in keeping with the words of Chesoni, J in Gurbarsh Singh & Sons Ltd and others versus Bank of Credit & Commerce International (overseas) Ltd HCCC No. 2435 of 1982 that "the status quo referred to is the last uncontested status between the parties preceding the pending dispute'

Requirements for grant of temporary injunctions

Any discussion on temporary injunctions is not complete without a reiteration of the requirements for grant of injunction as set-out in the Giella Case. In Giella versus Cassman Brown, Spry, V.P stated as follows:

"First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not be adequately compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience."

In interpreting the Rules, Richard Kuloba, J in his authoritative book: Principles Of Injunction has stated of them:

" [T]he right formulation of [the principles] would be this, that among other considerations a court takes into account in determining whether a temporary injunction should be issued, first, whether there is a significant likelihood that the applicant will prevail on the merits of the case at a full trial. Second, the court will ordinarily consider whether there is a threat of irreparable harm. Finally, there is the traditional consideration of whether harm to the respondent would outweigh the need for temporary relief. But there may be other matters, for example public interest, involved."[Emphasis his]

It suffices to say that the law on interlocutory reliefs is well settled. The same was favoured with a restatement in the recent case of Kitur and Another versus Standard Chartered Bank & 2 Others [2002] I KLR 630 where the court stated that:

"the applicant must demonstrate prima facie case that it has a case with a probability of success , that unless an order of injunction is granted by the court the applicant may suffer loss or injury which cannot be compensated by an award by an award of damages and in case of doubt the court should resolve the dispute on a balance of convenience."

The court of Appeal sitting in Mombassa in the recent case of Mrao Limited-v-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:

1. the applicant must show a prima facie case with a probability of success;

2. an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury which cannot be adequately compensated by award of damages;

3. if the court is in doubt, it will decide the case on the balance of convenience.

The 1st condition: Prima facie case with a probability of success

Generally, the first condition as to prima-facie is the most contested and offers the immediate challenge in most applications for temporary injunctions. Kuloba is of the view that on this condition of prima facie case with probability of success, the court first considers the legal situation.

In that regard, he reasons that the court here seeks to be satisfied that there exist reasonable grounds for doubting the legality of the apprehended or continuing acts of the defendant, and that they constitute a violation of the applicant's legal and equitable rights. The standard to be satisfied here has been expressed by the courts in diverse ways such as that the applicant must show that there exists 'a case to be tried' or 'triable issue' or a serious issue or question to be investigated' or 'a real issue' or substantial grounds for apprehending unlawful acts'. In the negative, the claim is not 'vexatious or frivolous' and/or 'insubstantial or illusory'.

In Anil Shah versus Akiba bank Ltd, Azangalala J stating the condition for the prove of prima facie case in grant of injunctions voiced the need for the court to caution itself thus:

"I bear in mind that this is an interlocutory application and I should not make definitive findings of fact or law in determining this first condition."

The issue in a claim for specific perfomance for breach of contract for sale of land with regard for prove of prima facie case becomes: Has the plaintiff presented an arguable case that the defendant's actions or omissions in the circumstances of this case in breach of the contract with regard to completion of sale?

In Nsubuga and Another versus Mutawe, Mustafa, J.A was of the view that:

"As regards … probability of success, the applicant must not only show that it will succeed but that he could succeed."

Thus in the case, the Plaintiff failing to, inter alia, satisfy that standard, the court of appeal of East Africa concluded that no interim injunction should have been granted in the case at trial level.

The Court of appeal in the Mrao Limited case (supra) interpreted the condition as to prima facie case. It held:

"A prima facie case in a civil application includes but is not confined to a "genuine and arguable case". It is a case which on the material presented to court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the other party as to call for an explanation or rebuttal from the latter."

The relevant general question with regard to the first condition is thus whether the Plaintiff shown that it can not only probably succeed but can succeed in the suit against the Defendants.

Conclusion

In conclusion, temporary injunctions are versatile and one of the most important innovations and remedies of civil litigation and equity.

There are basically three successive conditions for grant of injunctions. If the Plaintiff proves that he has a prima facie case with probability of success s/he then proceeds further to prove that the injury to be occasioned if the injunction is not granted cannot be repaired by damages. Equitable remedies like injunctions are generally not available where damages will be adequate compensation. If the court is still in doubt, you go on to proof that the balance of convinience favour Plintiff's grant of the orders of temporary injunction in comparison with the defendant(s).