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.

Some Quotes By Aesop

The injuries we do and the injuries we suffer are seldom weighed on the same scales.

Every truth has two sides. It is well to look at both sides before we commit ourselves to either side.

A liar will not be believed, even when he speaks the truth.

Appearances often are deceiving.

Little by little does the trick.

We often give our enemies the means for our own destruction.

Distrust interested advice.

A doubtful friend is worse than a certain enemy. Let a man be one thing or the other, and we then know how to meet him.

He that is neither one thing nor the other has no friends.

Better be wise by the misfortunes of others than by your own.

After all is said and done, more is said than done.

People often grudge others what they cannot enjoy themselves.

We should look to the mind, and not to the outward appearance.

Self conceit may lead to self destruction.

The smaller the mind the greater the conceit.

He that always gives way to others will end in having no principles of his own.

It is in vain to expect our prayers to be heard, if we do not strive as well as pray.

Outside show is a poor substitute for inner worth.

Yield to all and you will soon have nothing to yield.

The unhappy derive comfort from the misfortunes of others.

Injuries may be forgiven, but not forgotten.

United we stand; divided we fall

He that is discontented in one place will seldom be happy in another

Union gives strength.

We would often be sorry if our wishes were granted.

I am sure the grapes are sour.

It is not only fine feathers that make fine birds.

Destroy the seed of evil, or it will grow up to your ruin.

It is easy to be brave from a safe distance.

Please all, and you will please none.

Example is the best precept.

The gods help those who help themselves.

Our insignificance is often the cause of our safety.

Never trust the advice of a man in difficulties.

Slow and steady wins the race.

-Aesop (620–560 BC)-
A slave and story-teller who lived in Ancient Greece

L-K’ers: What is your take on this article? Email your opinion now to: pmusyimi@gmail.com

Arbitration as an alternative to litigation in Kenya

Arbitration is a private process of dispute resolution. Arbitration is often times with the sanctioned by statute and involves determination of disputes by a tribunal, whether made of a single individual or several persons, chosen by parties or through a process agreed to by the parties.

Definition of arbitration

The following definition of arbitration by Lord Justice Raymond 250 years ago is still valid:

"An arbitrator is a private extraordinary judge between party and party, chosen by their mutual consent to determine controversies between them, and arbitrators are so called because they have arbitrary power; for if they observe the submission and keep within their due bonds their sentences are definite from which there lies no appeal". (Quoted in Totterdil B (2003) An introduction to construction adjudication: Comparison of Dispute Resolution Techniques.)

The International Law Commission has defined arbitration in respect of sovereign states as follows:

"A procedure for the settlement of disputes between states by a binding award on the basis of law and as a result of an undertaking voluntarily accepted."

Key features of arbitration

The following features of arbitration are discernible. One, the procedure of settlement is as agreed by parties either point by point or by adopting a pre-existing procedure made by an institution. Arbitration awards are on basis of the law just like judgements in litigation. This may be contrasted to decisions in other mechanisms e.g. negation which may not necessarily be on merits of the law. Thirdly, an arbitrator is a private judge chosen by parties or through a process agreed upon by the parties and given arbitrary power to decide the dispute between them. Arbitration award is usually binding upon the parties and subject to appeal like any other a normal judgement of a subordinate court. Finally, the definition of arbitration necessarily refer to agreement between parties which agreement is often times embodied in the arbitration clause in contracts.

Advantages of Arbitration (www.lcia.com)

Arbitration as a mode of disputes resolution is possessed of the following advantages among others:

• Confidential: Arbitration is a private process. Parties select an arbitrator privately and proceedings are held privately. This eliminates the presss element highly prevalent in litigation and mitigates bad publicity that disputes may yield.

• Experienced and knowledgeable Arbitrators. Unlike court litigation Parties choose arbitrators or appoint the person or body so to do. They can thus inject integrity in the process at will. Where the matter involved is complex or technical, there are no qualms choosing an arbitrator knowledgeable in the field or with relevant experience. For example, in building and construction disputes, an architect who is also an arbitrator will be an ideal choice..

• Expeditious: The private nature of arbitration and the possibility of parties consenting to expedite the process make arbitration a speedier process compared to litigation. Often, the arbitrator has no other pending matter can, therefore, dispose of the case with expedition.

• Affordable: Given its speed and flexibility (as we shall see in a moment) Arbitration is, overall, cost-effective in comparison with litigation. That is not denying that arbitral tribunals or arbitrators require to be paid for their services. So do the lawyers and persons who represent parties in the arbitration process.

• Flexible: By private and by consent arbitration can be very flexible. There are no formal or unchangeable rules like one finds in the courts. Parties and arbitrators are free to adopt flexible procedures and rules which suit everybody. After confidentiality, flexibility is perhaps the most attractive attribute of arbitration.

• Representation: in the courts one needs a lawyer to represent him. Lawyers are expensive. In arbitration one may appear in person or send a lawyer or representative or indeed anyone one chooses. It is part of flexibility.

• Limited Appeals – expediency: Except in the most blatant cases of bad arbitrating the arbitrator's award will be final and binding on the parties. Where the law allows appeals it will usually be in cases of disregard for the principle of natural justice or the express agreement of the parties.

• Minimum formality and expeditious disposal of matters: Procedure in courts is founded on rules of practice some of which are of great antiquity. The court procedures require an experienced lawyer to apply them correctly. In arbitration these rules do not apply. The rules to apply are either those agreed by the parties or some institutional procedural rules like those of the Chartered Institute of Arbitrators (UK) or the London Court of International Arbitration.

The overriding rules of arbitration may simply be paraphrased as the rules which will enable justice to be rendered between the parties with a minimum of formality and with expedition. These rules will be found in what is called "rules of natural justice." The application of the rules of natural justice as a minimum starting point ensures that justice is done and seen to be done.

Limitations of Arbitration in Kenya

Despite all the advantages that it possesses, arbitration has practicability restrictions. Internationally though, it is probably the most acceptable and effective method of resolving disputes. However, at the national level in Kenya, the process of arbitration is governed by a statute, the Arbitration Act, 1995.

The Act in section 4 requires an Arbitration clause to be in writing and in essence to be signed by the parties. Basically, the Act envisaged the application of arbitration in the context of commercial dispute resolution.

Arbitration in the context of Kenyan law

Arbitration in Kenya is recognized under the Arbitration Act 1995. The Act contains provisions relating to arbitral proceedings and the enforcement of the ultimate awards by the court. "Arbitration" is defined in section 3(1) of the Act to as "Any arbitration whether or not administered by a permanent arbitral institution".

Arbitration is thus conceived to include all types of arbitrations that can be envisaged in society. Traditional institutions dealing with issues brought before them can still carry out arbitrations. In any case, persons appointed by parties to be arbitrators need not be affiliated to any formal organization.

There is no doubt that at arbitration has a vast potential as a dispute resolution mechanism as is afforded wide application by the law. The hassles of litigation can thus be avoided through arbitration. As a plus, the Arbitration Act ensures that parties retain their autonomy in critical matters including venue, language of arbitration and procedures. These are luxuries unheard of in litigation.

The Kenyan Arbitration Act deals with domestic and international arbitration (see section 3(2) thereof. The statute is similar in many respects to the Arbitration Act 1996 of the United Kingdom (UK). In section one, the UK Act states that the provisions of the part shall be founded on the following principles and shall be construed accordingly:

1. The object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense.

2. The parties should be free to agree on how their disputes are resolved subject only to such safeguards are necessary in the public interest.

When arbitration is international in Kenya

As per section 5(3) Arbitration Act of Kenya, arbitration is international where:

1. The parties to an arbitration agreement have, at the time of the conclusion of that agreement, their places of business in different states;

2. One of the following places is situated outside the state in which the parties have their places of business;

1. The place of arbitration if determined or pursuant, to the arbitration agreement; or

2. Any place where a substantial part of the obligations of the commercial relationship is to be performed or the place with which the subject matter of the dispute is mostly closely connected.

3. The parties have expressly agreed that the subject matter of the arbitration agreement relates to more than one state.

4. For the purposes of subsection (3) –

   1. if a party has more than one place of business, the place of business is that which has the closest relationship to the arbitration agreement; and

   2. if a party does not have a place of business reference is made, to his habitual residence.

Recognition and enforcement of foreign Arbitral awards

The Act further deals with the recognition and enforcement of arbitral awards irrespective of the state in which it was made subject to certain limitations (as outlined under section 37). The refusal to enforce can be on the grounds of incapacity, lack of jurisdiction and public policy.

The distinction between local, private and public international arbitration becomes somewhat blurred, however in cases involving a private party and a state. Here we find processes that combine features of both public and private arbitration and which shift uncertainly between the two (Arbitrations under ICSID are good examples of arbitrations of this kind).

Conclusion

Arbitration is a binding process of dispute resolutions. The decision of the Arbitrator is final. Arbitration is governed by the Arbitration Act 1995 and is generally a formal process.

Arbitration as envisaged in Kenyan law is just as adversarial as litigation. There is a tendency that Arbitration assumes a formal and cumbersome streak especially where lawyers are involved in representing parties.

But overall, it affords a cost effective, binding, confidential and expeditious decision making method that parties to disputes should tap to avoid undue litigation. There is also the chance that it will preserve business relationships while solving the contentious issues betweens the parties.

So next time you are handling a contract, you may need to consider whether it bears an arbitration clause. Equally important, you may consider advising a client before to implore to pursue arbitration instead of litigation. At least, your efforts will unclog our courts! And if you are a player in legal reforms in Kenya, be part of the effort to customise arbitration to suit Kenya's the local dispute resolution needs.

Lawyers build no bridges...

True, we build no bridges. We raise no towers. We construct no engines. We paint no pictures - unless as amateurs for our own principal amusement. There is little of all that we do which the eye of man can see. But we smooth out difficulties; we relieve stress; we correct mistakes; we take up other men's burdens and by our efforts we make possible the peaceful life of men in a peaceful state.

-John W. Davis-

L-K’ers: What is your take on this? Email your opinion now to: pmusyimi@gmail.com

'When Inadvertence comes to haunt'

The following quotations are taken from official court records across a nation, showing how funny and embarrassing it gets, sometimes, in courts of law, especially when even the slightest inadvertence is preserved for posterity.


--------------------------------------------------------------------------------

Lawyer: "Was that the same nose you broke as a child?"
Witness: "I only have one, you know."

--------------------------------------------------------------------------------

Lawyer: "Now, Mrs. Kamau, how was your first marriage terminated?"
Witness: "By death."
Lawyer: "And by whose death was it terminated?"

--------------------------------------------------------------------------------

Accused, Defending His Own Case: "Did you get a good look at my face when I took your purse?"
The defendant was found guilty and sentenced to ten years in jail.

--------------------------------------------------------------------------------

Lawyer: "What gear were you in at the moment of the impact?"
Witness: "Gucci sweats and Reeboks."

--------------------------------------------------------------------------------

Lawyer: "Can you describe what the person who attacked you looked like?"
Witness: "No. He was wearing a mask."
Lawyer: "What was he wearing under the mask?"
Witness: "Er...his face."

--------------------------------------------------------------------------------

Lawyer: "This myasthenia gravis -- does it affect your memory at all?"
Witness: "Yes."
Lawyer: "And in what ways does it affect your memory?"
Witness: "I forget."
Lawyer: "You forget. Can you give us an example of something that you've forgotten?"

--------------------------------------------------------------------------------

Lawyer: "How old is your son, the one living with you?"
Witness: "Thirty-eight or thirty-five, I can't remember which."
Lawyer: "How long has he lived with you?"
Witness: "Forty-five years."

--------------------------------------------------------------------------------

Lawyer: "What was the first thing your husband said to you when he woke that morning?"
Witness: "He said, 'Where am I, Cathy?'"
Lawyer: "And why did that upset you?"
Witness: "My name is Susan."

--------------------------------------------------------------------------------

Lawyer: "Sir, what is your IQ?"
Witness: "Well, I can see pretty well, I think."

--------------------------------------------------------------------------------

Lawyer: "Did you blow your horn or anything?"
Witness: "After the accident?"
Lawyer: "Before the accident."
Witness: "Sure, I played for ten years. I even went to school for it."

L-K’ers: What is your take on this? Email your opinion now to: pmusyimi@gmail.com