Order 41 rule 2 also provides for a different scenario. It reads as follows:
(1) In any suit for restraining the defendant from committing a breach of contract or other
injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may,
at any time after the commencement of the suit, and either before or after judgment,
apply to the court for a temporary injunction to restrain the defendant from committing
the breach of contract or injury complained of, or any injury of a like kind arising out of
the same contract or relating to the same property or right.
(2) The court may by order grant such injunction on such terms as to an inquiry as to
damages, the duration of the injunction, keeping an account, giving security or otherwise,
as the court thinks fit.
(3) In cases of disobedience, or of breach of any such terms, the court granting an
injunction may order the property of the person guilty of the disobedience or breach to be
attached, and may also order the person to be detained in a civil prison for a period not
exceeding six months unless in the meantime the court directs his or her release.”
The court in the latter rule has power to prevent breach of contract or other injury of any kind
through a restraint order or injunction. The words: “other injury of any kind” under the above
rule is wide enough to cover the applicant‟s application. The principles courts have used to grant
injunctions are well set out in the Court of Appeal case of Giella v Cassman Brown And
Company Ltd [1973] EA 358. The court held that firstly, an applicant must show a prima facie
case with a probability of success. Secondly, an interlocutory injunction would normally not be
granted unless the applicant might otherwise suffer irreparable injury, which cannot be
adequately compensated by an award of damages and thirdly, where the court is in doubt, it will
decide the application on the balance of convenience. In the case of Noormohamed
Janmohamed vs. Kassamali Virji Madhani [1963] 1 EACA 8 it was held that the major
purpose of a temporary injunction is to maintain the status quo until the matter in controversy in
the suit have been finally determined. The authorities cited by the counsels on the principles to
be used in cases of this nature are not disputed and state the principles courts relied on in
applications for grant of temporary injunctions involving trade mark disputes. These are the
cases of Cut Tobacco (K) Ltd vs British American Tobacco (K) Ltd [2001] 1 EA 24,
Hassanali M Sachoo vs Jonkoping Och Vulcans Tandsticksfabriktiebolag [1958] EA 463,
HCCS 0325 of 2004 Napro Industries Ltd vs Five Star Industries and Another decided by
Hon. Mr. Justice Yorokamu Bamwine High Court Judge at the Commercial Division as he then
was and HC MA 773 of 2004 arising from HCCS 325 of 2004 Napro Industries Ltd vs Five
Start Industries and Another decided by Hon. Lady Justice Stella Arach Amoko High Court
Judge at the Commercial Division as she then was.
There is preference for the principle that all the applicant needs to prove in an application is not
so much that he has a prima facie case with a high likelihood of success but that the plaint raises