In Syokimau rubble lies useful case study

By Pravin Bowry

The ongoing demolitions of houses, most with title documents issued by Government agencies, built on land now said to belong to Kenya Airports Authority in the Syokimau area near Nairobi brings to the fore the mechanisms of preservation of interests of parties. It is reported that many properties being demolished have injunctions barring interference with the properties until the cases are disposed of.

The question as to how one piece of land can have two conflicting titles raises perplexing legal issues. The sanctity of court orders in such weighty and disputed matters must be respected.

Historically, under English Common Law, which applies in Kenya, the only civil remedy available to an aggrieved party is an award of damages. But damages alone can and does lead to injustices and so the laws of equity developed remedies and awarding injunctive orders is one such equitable remedy.

Injunction is therefore is an order from the court refraining a party from doing (restrictive injunction) or doing (mandatory injunction) a particular act or thing. Injunctions may also be interlocutory, to preserve the status quo until the relevant facts can be ascertained or perpetual based on final determination of the rights of the parties.

Procedurally in Kenya aggrieved parties run to courts and get ex parte (without the other party being there) injunctions which under the Kenyan laws can only have a life of 14 days after which the orders can only be sustained if the matter is dealt with inter parties (i.e. with all parties being present)

Interlocutory and ex parte injunctions should only be granted where a strong prima facie case is made out but in Kenya practice, matters of interlocutory injunctions have become casual and routine, with courts granting injunctions without due weight being given to the threatened or apprehended injury or very substantial harm likely to be incurred.

Sufficient public interest

In doubtful cases, the courts consider the nature of the injury and balance of convenience to the parties, conduct of the parties, whether there has been acquiescence or delay, and generally what is equitable in the circumstances.

Injunctions are given when irreparable injury takes place and where the damages alone are not considered adequate remedy.

Injunctions once given are not an academic exercise or an exercise in futility and must be implicitly obeyed and observed to the letter. The remedy for breach of an injunction is committal to prison for flouting the order of the court. Officers of the Government or corporate bodies can be held to account for any contraventions. After obtaining orders the orders in Kenya must be served on the concerned litigants and a Penal Notice given warning the party being served the consequences of not obeying the orders.

Impending breaches of law directed, encouraged or procured by the executive or those in authority are looked at in disdain in most jurisdictions by courts.

In practice, in Kenya breaches of injunctions are often taken lightly, with the law enforcement agencies terming the matters as civil and not worthy of being pursued.

Unlike other jurisdictions, the role of court bailiffs has not been exploited to enforce orders to protect the rights of litigants.

The law of injunctions has been developed to protect all the citizens’ rights — including the constitutional and fundamental human rights — and courts keep coming up with amazing sets of new injunctive orders to fit every case with its specific factual peculiarities.

Injunctions are also being used in matters of criminal nature. It has been held in courts that police authorities can apply for injunctions to preserve evidence in proceedings in criminal courts and that police do have sufficient public interest in protecting the rights of the general citizenry.

Courts have developed new concepts to injunctive orders. For example there is now what is called a ‘Mareva Injunction’ which refers to a temporary injunction that freezes the assets of a party pending further order or final resolution by the court. It is also known as the freeze injunction. It is often used to prevent the Defendant from secreting assets out of the court’s jurisdiction as soon as the claim is served, to frustrate enforcement of the judgment.

Search warrant

There is now a new ingenious procedure famously termed the "Anton Piller Order" which is a court order which allows a party to go to someone’s premises and seize documents or even evidential material, for example where copyright infringement is going on.

This order has been dubbed as a ‘private search warrant’.

Obeying injunctions, and generally giving court decisions sanctity is the very basis of dispute resolutions by court for orderly running of society and hopefully strict adherence to court orders will be strictly enforced in our courts.

—Writer is an Advocate of the High Court.

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