KENYA Law and Practice Contributed by: Ahmednasir Abdullahi, Asli Osman, Peter Muchoki and Elizabeth Wangui Mungai, Ahmednasir Abdullahi Advocates LLP
6.4 Liability for Damages for the Applicant An applicant for an injunction may be held liable for damages if the injunction is later discharged and the respondent can show that it suffered loss as a result of the order. To mitigate this risk, the court often requires the applicant to give security for costs or an under- taking as to damages before granting the injunction. This is particularly common where the injunction is of a type likely to affect commercial interests or prevent access to property or funds. For ex parte injunctions, the requirement for security is even more significant because the respondent has not had an opportunity to be heard before issuance of the order. The applicant must typically provide a bond or other security to cover potential damages that the respondent might claim if the injunction is later set aside. 6.5 Respondent’s Worldwide Assets and Injunctive Relief Courts have the discretion to grant injunctive relief affecting a respondent’s assets, typically sought through a Mareva or freezing injunction, which may restrain the disposal or transfer of assets worldwide. When considering such applications, courts will examine the applicant’s case carefully, ensuring that there is a genuine risk of asset dissipation and that the order is proportionate. However, enforcement of such orders against assets located abroad depends on the co-operation of for- eign courts, principles of international comity, and whether or not the foreign jurisdiction recognises and enforces Kenyan court orders. 6.6 Third Parties and Injunctive Relief Kenyan courts can grant injunctive relief against third parties, but only in limited and specific circumstances where a third party is involved in facilitating or abet- ting the primary respondent’s conduct. Ordinarily, such third parties are joined to the proceedings for purposes of dispensing with the application and in order to give them an avenue to make representations in court. The court’s discretion to bind third parties is exercised carefully, and the applicant must demonstrate that the
to act rather than refrain from acting, are granted only in exceptional circumstances and may be granted either as interim relief or after full trial. Specialised injunctive orders such as freezing (Mare- va) injunctions are issued by courts to prevent a party from dissipating assets, anti-suit injunctions to restrain proceedings in other jurisdictions that are vexatious or oppressive, and quia timet injunctions to protect against harm that has not yet occurred, particularly in intellectual property, environmental, or contractual contexts. 6.2 Arrangements for Obtaining Urgent Injunctive Relief Urgent injunctive relief can be obtained on extremely short notice where circumstances so demand. Where the matter is extremely urgent, an applicant may move the court ex parte under a certificate of urgency. The application is normally placed before a duty judge of the court for immediate directions. In addition to that, the judiciary has established an out-of-hours duty judge system (commonly known as the “duty judge” or “vacation judge” arrangement). During court vacations, weekends, or public holidays, a designated judge remains on call to handle urgent matters, including injunctions. 6.3 Availability of Injunctive Relief on an Ex Parte Basis Injunctive relief can be granted on an ex parte basis in Kenya, but only in urgent and exceptional circum- stances where giving notice to the respondent would undermine the very purpose of the order. Typical scenarios include cases where there is a risk that assets may be dissipated, property destroyed, or other actions taken that would render the injunc- tion ineffective if the respondent were informed in advance. Ex parte injunctions are usually temporary in nature. Such orders are granted for a limited period, ordinar- ily not exceeding 14 days, pending a full hearing on notice to the respondent.
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