Interim Injunctions in Kenyan Commercial Disputes: The Giella v Cassman Brown Test in Practice

Interim Injunctions Kenyan Commercial Disputes are decided, in practice, by a single three-part test that has survived more than fifty years without serious challenge: Giella v Cassman Brown & Co [1973] EA 358. This piece is about ordinary interlocutory injunctions generally, the tool used to freeze a situation in place while a dispute is resolved. It is not about freezing a defendant’s assets specifically ahead of judgment, which is a narrower remedy we cover separately in our guide on Mareva injunctions and attachment before judgment.

The Test, and Why It Has Lasted

The Giella test asks three questions in sequence: does the applicant have a prima facie case with a probability of success; will the applicant suffer irreparable harm that damages could not adequately compensate; and, if the court remains in doubt on the first two limbs, where does the balance of convenience lie. What makes this test unusual is how consistently Kenyan courts have restated it in near-identical language across five decades. Confirmation of its continued authority is easy to find in recent decisions: Mwananchi Credit Limited v Githua & Another [2024] KEHC 7081, a commercial dispute decided in June 2024, and Ndolo v Mbolu & 3 Others [2025] KEELC 8046 and EPCO Builders Limited v Kenya Railways Corporation & 3 Others [2025] KEELC 8211, both decided in the Environment and Land Court in late 2025, all recite the same three-limb test as the controlling standard for an interlocutory injunction application today.

Limb One: What a Prima Facie Case Actually Means

The Court of Appeal gave the operative definition in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KECA 175: a prima facie case is one where, on the material before the court, a tribunal properly directing itself would conclude that a right has apparently been infringed by the opposite party, calling for an explanation or rebuttal. This is a meaningfully higher bar than simply having an arguable case. An applicant needs to show the court something concrete pointing to an actual infringement of a right, not merely a plausible legal theory; applications that rest on assertion rather than documented, specific evidence of the underlying right and its apparent breach tend to fail at this first limb.

Limb Two: Irreparable Harm

The second limb asks whether the harm the applicant fears is of a kind money cannot fix. Loss of a unique property interest, damage to a business relationship or reputation that cannot be quantified with precision, or the practical destruction of the subject matter of the dispute before it can be resolved are the classic categories. A pure, quantifiable financial loss, by contrast, is generally not irreparable in this sense, because damages exist precisely to compensate for it; applicants who can show only that they stand to lose money, without more, often struggle at this limb even where their underlying case is strong.

Limb Three: Balance of Convenience

Where the first two limbs leave the court genuinely uncertain, it turns to which party would suffer greater harm from the grant or refusal of the injunction relative to the other. This is the limb most fact-dependent and least predictable in advance, and it is where the specific commercial context of a dispute, rather than pure legal argument, tends to carry the most weight.

Undertakings and the Cost of Being Wrong

An applicant who obtains an injunction is typically required to give an undertaking as to damages, a promise to compensate the respondent for loss caused by the injunction if it later turns out to have been wrongly granted. This is not a formality courts treat lightly, particularly in commercial disputes where an injunction can halt a transaction, a construction project or a business relationship for months while the underlying dispute is resolved. An applicant should weigh the realistic exposure under that undertaking before seeking an injunction as a matter of course, since winning the injunction application is not the end of the story if the substantive claim later fails.

Practical Application in Practice

The consistency of this test across commercial, land, and general civil disputes means that preparing an injunction application in Kenya should always start from the same structure: assemble the specific, documented evidence pointing to an actual infringement of a right, articulate precisely why damages would not be an adequate remedy, and be ready to address the balance of convenience if the first two points do not resolve the matter cleanly. This applies whether the underlying dispute concerns a contract, a shareholding, a construction project, or a piece of land, which is why the same test recurs across such different subject matter in the case law above.