AFRICA NAZARENE UNIVERSITY

LAW SCHOOL
COURSE: EQUITY AND TRUSTS
COURSE UNIT: LAW 428
SEPTEMBER-DECEMBER 2025
EQUITABLE REMEDIES: INJUNCTIONS

1. INTRODUCTION

An injunction may be granted against an individual, a class or an organization restraining the

unlawful acts of unidentified people. The court can however, only interfere where there is an
invasion of a legal or equitable right. This was held in Day v Brownrigg [1878].
A person may seek an injunction to protect his existing private rights. Public rights are
usually protected by injunctions obtained by the Attorney General. A local authority may also
seek an injunction to protect public rights in the locality or to enforce planning control. To act in
breach of an injunction is contempt of court. Although Kenya has no contempt of court Act,
nonetheless various penalties may be imposed under the Judicature Act (Chapter 8 Laws of
Kenya) including imprisonment, sequestration of assets, fines or even an order to pay costs.

2. TYPES OF INJUNCTIONS

Each type of injunction has been designed to achieve a different function. These categories
include:

(a) Prohibitory Injunctions

Which being restrictive in nature forbid the party to do or continue to do an unlawful act. For
example, to build upon land in breach of a restrictive covenant.

(b) Mandatory Injunctions

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Which order that an act be undone. For example, to demolish a building which has been built in
breach of a restrictive covenant. Hence, a mandatory injunction when granted is likely to undo
a wrongful act rather than to ask the defendant to carry out a positive obligation. This is
because if the difficulties of supervision. Mandatory injunctions are uncommon, but when
granted should be worded in positive terms.

(c) Final or Perpetual Injunctions

Are granted in final settlement of the dispute between the parties and are issued at the
completion of the court proceedings. Such injunctions are granted or not in accordance with
established equitable principles. Hence the court will take on board factors such as: the
adequacy of damages; conduct of the plaintiff; impossibility or futility; delay and
acquiescence; hardship and public interest.

(d) Interim Injunctions

These are also known as “interlocutory injunctions” which are made during the course of legal
proceedings. They continue only until the eventual trial of the action. The purpose is to restrain
the defendant immediately without waiting for a full court hearing. The grant of an interim
injunction is governed by the principles set out in Giella v Casman Brown [1973]

(e) Without Notice (or Ex parte) Injunctions

Are granted sparingly, and in an emergency, without the other side having been informed or
given the opportunity to attend the hearing of the application. Such injunctions are often sought
to restrain possible copyright and patent infringements; In the UK case of Bloomsbury
Publishing PLC v News Group Newspapers Ltd [2003] the plaintiffs were the publisher and
writer of Harry Potter Books. Advance copies of the fifth book were taken unlawfully from the
publisher and offered to the press. The plaintiffs asked for an injunction against an unnamed
person or persons to restrain breach of copyright. It was held that an injunction would be

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granted as the defendant could be identified by his actions albeit not by name. That is, anyone
who had possession of the books without the consent of the plaintiffs.

(f) Quia Timet Injunctions

Which are designed to prevent an anticipatory infringement of the plaintiffs rights where an
infringement is a realistic threat. In Redland Bricks Ltd v Morris [1970] which concerned
anticipated damage from land slippage, it was admitted that the requirement of proof is greater
for a party seeking a quia timet injunction than other types of injunction.

(g) Search Orders

Formerly known as “Anton Piller” orders, which authorize the plaintiff, to enter the
defendant’s premises to inspect and seize documents relevant in the case. The aim is to protect
evidence in relation to impending limitations.

(h) Freezing Injunctions

Formerly known as “Mareva Injunctions” which prevent the defendant from taking his assets
out of the jurisdiction of the court before the completion of litigation.

2. DAMAGES IN LIEU OF AN INJUNCTION

The general presumption is that, if a right is infringed, an injunction will be granted. In certain
circumstances, however, the courts may award damages instead of injunctive relief. Following
Shelfer v City of London Electric Lighting Co. [1895]; the working rule emerged that
damages may be the better alternative where:-
(a) The plaintiff’s loss is small;
(b) The loss can be valued in monetary terms;
(c) Money would provide the plaintiff with adequate compensation; and
(d) An injunction would be oppressive, unduly harsh or disproportionate.
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 It should be understood, however, that the Shelfer guidelines have not been universally
welcomed. In Coventry v Lawrence [2014]

Supreme Court felt that the guidelines were out of date and lamented that they had been
slavingly followed by the court. Sumption J admitted that, “There is much to be said for the
view that damages are ordinarily an adequate remedy for nuisance.”

3. DECIDED CASES

In Tamares (Vincent Square) Ltd v Fairpoint Properties (Vincent Square) Ltd [2006]
Deputy Judge David Moss refused to grant an injunction which would require part of a
building to be knocked down because:
“It would be ‘oppressive’ to grant a mandatory injunction which would create
loss to the Defendants but of all conceivable proportion to any loss that might be
suffered by the claimant. The grant of a mandatory injunction would be unjust
and inequitable and, in the exercise of my discretion, I am not prepared to grant
it.”
In Regan v Paul Properties [2006] Mr Regan claimed that his right to light had been infringed
by a nearby building development. The Court of Appeal upheld his claim and awarded a
mandatory injunction, which required the redesign of the top floor of the development.
Damages were inadequate because the injury to light was not small; it could not be compensated
by the payment of a small monetary sum and the injunction was not oppressive as the
developer was still very much in profit on the project. A similar outcome on basically similar
facts reached in HKRUK (CHC) LTD v Heanley [2010]
In Coventry v Lawrence [2014]; the plaintiffs brought an action in nuisance against the
defendant as regards noise generated by motor sports carried out on his land. The Supreme
Court considered when damages should be awarded in lieu of an injunction. Although the
Supreme Court did not actually decide that issue on the facts before it, it sent out clear signals
that injunctive relief might be more readily denied. In those nuisance cases where planning
permission has been granted, there is public utility involved with the conduct complained of

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and the financial implication of granting an injunction would be disproportionate to the
damage done to the plaintiff.

4. GUIDELINES FOR INTERIM INJUNCTIONS

A series of guidances as to when interim injunctions should be granted were set out by the Court
in Giella v Casman Brown [1973] subject to the Civil Procedure Act (Chapter 21 laws of
Kenya) and the Rules therefore, these ensure that:

(a) The plaintiff’s case must disclose a prima facie care with a high probability of
success. The UK Care of American Cyanamid v Ethicon Ltd [1975] fest to require
that the plaintiff’s case must not be frivolous and vexatious and there must be a
serious question to be tried.
(b) In Kenya, pursuant to Giella v Casman Brown the plaintiff must show that unless an
injunction is granted he will suffer irreparable harm which cannot be compensated
in money damages. The UK Cyanamid Standard requires a claimant to give an
undertaking in damages to the court;
A “balance of convenience” or “balance of justice” test must be satisfied. This test
involves weighing up the potential harm suffered by the applicant if no injunction is
awarded, with the potential inconvenience caused to the defendant if it is granted.
For example, in Gregory v Castleback Ltd [2002]
(c) If the injunction was not granted, was minimal whereas, it would be financially
disastrous for the defendant. Importantly the case for an injunction will be
strengthened if the plaintiff is prepared to give an undertaking to the court to
compensate the defendant for loss in the event of the eventual litigation being
unsuccessful. If the plaintiff cannot afford to pay such potential damages, the court
may refuse to order the injunction.
(d) Only as a last resort will the strength of each party’s case be considered.
Nevertheless, in Series 5 Software v Clarke [1996] more emphasis was placed on this
last guideline. The plaintiff’s case was weak and in refusing to grant the injunctive
relief, Laddie J. adopted a more flexible approach. He was not prepared to relegate
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 the strength of each party’s case to the last resort. There was need for flexibility as
recently seen in ESL Fuels v Fletcher [2018]

5. EXCEPTIONS TO CASMAN BROWN

The Giella principles do not apply in the following situations:-

(a) Where there is no arguable defence. As a permanent injunction will be eventually be
granted, an interion injunction will be granted until the trial occurs.
(b) When the grant or refusal of an injunction will render the trial of the action unlikely
nugatory. In Cambridge Nutrition Ltd v BBC [1190].
The plaintiff unsuccessfully sought an injunction restraining the BBC from
broadcasting a program until the publication of a government report. If the interim
injunction had been granted, the plaintiffs would have achieved their goal without a
trial. The Giella guidelines are inappropriate in such cases.
(c) When it is an interim mandatory injunction that is sought. It was demonstrated in
Shepherd Homes v Sandham [1971] that the court will not usually require the defendant
to take positive steps (e.g. the demolition of a building) before the issue has gone to trial.
Naturally, a higher standard of proof is required than with an interim prohibitory
injunction.

6. SEARCH ORDERS

This is a mandatory, ex parte order preventing disposal by the defendant of any evidence
prior to trial. The order requires the defendant to allow the holder access to premises for
specified purposes. The design is to prevent vital documents or files being destroyed before
being inspected by the plaintiff. It is especially important in commercial cases involving breach
of confidence, copyright, passing off and infringement of patents. The power to make a search
order was made clear in Anton Piller KG v Manufacturing Processes Ltd [1976]
The following conditions must be met:
(a) There must be a strong prima facie case;
(b) The plaintiff must show actual or potential damage of a serious nature; and
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 (c) There must be clear evidence that the defendant has incriminating documents or other
items that are likely to be destroyed before the trial. He applicant must make full and
fair disclosure of all material facts.

(a) Safeguards
The guidelines on the execution of such orders were laid down in Universal Thermosensors Ltd
v Hibben [1992]

7. FREEZING INJUNCTIONS

As in Mareva Compania Naveira SA v International Bulk Carriers SA [1975]; These

injunctions were originally granted where a plaintiff had brought an action in Britain against a
foreign defendant who had assets within the jurisdiction that he might hide or remove. This is
referred to as the “enforcement Principle” The jurisdiction must be exercised in a flexible and
adaptable manner (the “flexibility Principle”) and the order must be clear and unequivocal
and strictly construed (the “strict interpretation principle”). This was set out in JST BTA
Bank v Ablyazor (No. 10) [2013]. It is possible also to seek a freezing injunction where
proceedings are started outside Britain. Freezing orders are usually issued on an interim basis
pending trial.