Injunction: What it means in law and how it is applied

Hi Wakili,

Please shed light on the term ‘injunction’, what it entails and how it is applied in law.

What in law is 'injunction' defined as, i.e., 'restraining' from carrying out 'business' (activity etc.) in the same area? Please shed light on this.

Yours faithfully.

Alnashir D Walji

Nairobi

Dear Alnashir,

Injunctions are often sought to ensure that people's relationships, alongside their transactive nature, are not threatened by the insensitivity of specific actions considered injurious to their rights and interests. This is more reason such measures are sought before the civil court.

Civil matters often place two or more persons disputing over something in court in which both have vested interests. These interests could be commercial, emotional, social, political, or personal. It is therefore essential to underscore that injunctions are relieves created by law and given by courts upon being moved by a litigant, often referred to as a plaintiff or complainant in a civil matter, directing one or more parties to do, not do or stop doing something.

The basic tenet of any injunction is the defensive architecture that is activated to preserve or prevent the loss of an asset, shield a person against personal harm, foil loss or damage to reputation, besides safeguarding businesses or personal interest in a given situation. All injunctions originate as court orders, which form its second and most fundamental principle.

However, certain evidentiary thresholds must be proven before any court, as has been determined in different jurisdictions and legal systems, grants an injunction. The plaintiff who seeks an injunction must first present credible and realistic evidence indicating irreparable injury on their part if the court fails to issue one.

Secondly, the injunction seeker should also demonstrate the unavailability of any other satisfying remedy to cure the problem under contestation. Thirdly, the plaintiff must show that the injunction's benefits far outweigh the burden created for the defendant. Lastly, failure to award the injunction could outclass public interest. Notwithstanding all the mentioned, courts also consider the likelihood of the matter before it being successful in favour of the plaintiff before making such an order.   

Several forms of injunctions exist, which are awarded through the court's discretionary powers as a response to requests made and supported by relevant evidence showing the need for such orders. First, there are permanent, also referred to as perpetual injunctions being court orders requiring a person or persons to execute or cease from performing a specifically defined act, especially in the circumstances which, under the court's assessment, using evidence presented by a plaintiff, cannot be remedied with financial rewards. Such an injunction is a court's admission that money legally defined as pecuniary award is not enough compensation to a complainant or plaintiff in reducing harm or impact of injury originating from a disputed action or inaction.

The prohibitory injunction is when the defendant is required to refrain from doing something. In such circumstances, the court agrees with the plaintiff and the public that the continued execution of certain things, often disputed, predisposes the complainant to more harm or injury. Such an injunction is a court's preliminary admission that a business-as-usual attitude may not be the order of things as the matter is canvassed before it. Prohibitory injunctions could be applied to reduce the chances of a defendant using confidential information acquired in their course of business. Similarly, when it is almost inevitable, non-issuance may lead to a breach of a specific contract by the defendant.

Depending on the circumstances prevailing between a plaintiff and a defendant, and based on the merit of a specific case, the court may award an interlocutory injunction, which is a remedy aiming to preserve the status quo by preventing one party from committing, repeating or continuing a wrongful act before trial. It is temporal and could only stand if no trial commences or if and until the court decides otherwise. Please note it differs from an interim injunction, which is given ex-parte (in the absence of one party) for a period allowing both the plaintiff and defendant to appear in court.

On other occasions, when the court is convinced by the plaintiff's evidence showing severe harm and the likelihood that the respondent may not incur unreasonable expenditure not in accord with the applicant's injury, it may award a mandatory injunction. This is the injunction that requires a defendant to execute something in particular.

Lastly, an injunction is provided in anticipation of an injury or harm to the plaintiff. This is known as a precautionary injunction, where there is the likelihood that a potential defendant has threatened a wrongful act or a substantial risk is demonstrated, indicating that the absence of an injunction will, in a way, allow actionable wrong to be committed. Another characteristic of an injunction is that failure to observe and act as directed by the court leads to a contempt of court charge on the defendant's part.

In conclusion, all these injunctions can best be classified into three categories; preliminary injunctions, typically applied in lawsuits or trials where the final verdict is not yet determined; temporary injunctions, which are commonly invited to put an immediate stop to an action to prevent further harm or damage; and permanent injunctions, in addition to what was discussed earlier is the final order issued by the court once the suit before it has been heard and determined.

Eric Mukoya has over 17 years’ experience working in the social justice sector. He’s the executive director of Undugu Society of Kenya. Legal query? Email [email protected]