Wakilii

Ariviza and Another v Attorney General of Kenya and Another

East African Court of Justice · [2011] EACJ 61 · 2011 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for temporary injunction pending determination of Reference challenging the constitutionality of Kenya's constitutional referendum and promulgation process
Decision
Application for temporary injunction dismissed; Reference to proceed to full hearing on merits

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court dismissed the application for a temporary injunction restraining implementation of Kenya's new Constitution. While the applicants established an arguable case warranting investigation, they failed to demonstrate that they would suffer irreparable injury if the injunction was not granted. The Court held that stopping the constitutional implementation process would occasion more injury should the Court ultimately find for the respondents, whereas any actions taken could be undone with minimum injury if the Court found for the applicants.

Outcome

Application for temporary injunction dismissed; Reference to proceed to full hearing on merits

Facts

The applicants filed a Reference challenging the conduct and process of Kenya's constitutional referendum and the promulgation of the new Constitution, alleging violations of the East African Community Treaty. Pending determination of the Reference, they sought a temporary injunction to restrain the Attorney General of Kenya from implementing the new Constitution through legislation. The applicants alleged that the 1st Respondent had begun fast-tracking bills through Parliament to implement the Constitution, which would render the Reference nugatory. They contended the constitutional process was unlawful and not representative of the majority of Kenyans, and that implementation would lead to breakdown of law and order, violation of rule of law, and erosion of separation of powers. The respondents opposed the application, arguing the applicants had not established grounds for injunctive relief and that 38 million Kenyans would suffer if the injunction was granted.

Issues

  1. Whether the applicants established a prima facie case with a probability of success for the grant of a temporary injunction.
  2. Whether the applicants would suffer irreparable injury if the temporary injunction was not granted.
  3. Whether the balance of convenience favoured the grant of a temporary injunction restraining implementation of Kenya's new Constitution pending determination of the Reference.

Orders

  • Application dismissed.
  • Costs to be in the cause.

Rules and key headnotes

Interlocutory Injunctions — Judicial Discretion — Exercise
The granting or refusal of a temporary injunction, which is an interlocutory order, is an exercise of judicial discretion which must be exercised judiciously.
Interlocutory Injunctions — Purpose — Preservation of Status Quo
The purpose of a temporary injunction is to preserve the status quo pending determination of the substantive matter.
Interlocutory Injunctions — Conditions for Grant — Three-Part Test
The conditions for the grant of an interlocutory injunction require: (a) the applicant must show a prima facie case with a probability of success; (b) an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury which would not adequately be compensated by an award of damages; and (c) if the court is in doubt, it will decide the application on the balance of convenience.
Interlocutory Injunctions — Prima Facie Case — Arguable Case Sufficient
At the interlocutory stage, an applicant need only establish an arguable case or bona fide serious issues to be investigated by the Court; the Court must refrain from making any determination on the merits of the application or any defence to it.
Interlocutory Injunctions — Irreparable Injury — Assessment of Comparative Harm
Where granting an injunction to stop an ongoing process would occasion more injury should the Court ultimately find for the respondents, and where any actions taken can be undone with minimum injury if the Court finds for the applicants, no irreparable injury will be occasioned to the applicants if the injunction is refused.

Cases cited (8)

  • Giella v Cassman Brown & Co Ltd [1973] EA 358
  • Sargent v Patel (1949) 16 EACA 63
  • Noor Mohamed Hanmohamed v Kassamali Virji Madhani (1953) 20 EACA 8
  • Garden Cottage Food Limited v Milk Marketing Board [1984] AC 130
  • EA Industries v Trufoods [1972] EA 420
  • Prof Peter Anyang-Nyong'o and 10 Others v Attorney General of Kenya and 5 Others (Reference No. 1 of 2006)
  • East Africa Law Society and 4 Others v Attorney General of Kenya and 3 Others (Application No. 9 of 2007)
  • American Cyanamid Co v Ethicon Ltd [1975] 1 All ER 504

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Ariviza and Another v Attorney General of Kenya and Another [2011] EACJ 61 (23 February 2011)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.