information and secondly for an order for permission to enter the Defendants’ premises to
inspect all such documents and remove them into the Plaintiff’s solicitors custody (the second
order now referred to as ―The Anton Piller‖ Order).
This model of application was also followed in the Kenyan Commercial Court Case of
Microsoft Corporation v Mitsumi Computer Garage Ltd [2001] 1 EA 127 (CCK). In the
Kenyan case a suit had been filed against the first Defendant in court for an alleged infringement
of Intellectual Property Rights (to wit pirated computer software). Then an application was made
ex-parte for an Anton Piller Order to allow the Respondent enter the first Defendant’s premises
and seize and inspect all computers and other equipment that could contain the alleged pirated
software as well as various office records. Simultaneous with the application for an Anton Piller
Order was an application for a prohibitory injunction.
Justice Ringera of Kenyan Commercial Court granted the Anton Piller Order. Justice Ringera
also granted an Interim Order restraining the first Defendant from infringing the Plaintiff’s
copyright on or about the 4th June, 2001 with orders that the application be heard inter-parties on
the 14th June 2001.
In the application now before me counsel for the Applicant applied first for a temporary
injunction and in so doing relied on the Case of Giella v Cassman Brown [1973] EA 358 which
is Court of Appeal case from Uganda. In that case SPRY V.P. (as he then was) set out the
conditions for the grant of an Interlocutory Injunction as being
―First, an applicant must show a prima facie case with a probability of success. Secondly, an
Interlocutory Injunction will not be granted unless the Applicant might otherwise suffer
irreparable injury, which would not be adequately be compensated by an award of damages.
Thirdly, if the court is in doubt, it will decide an application on the balance of convenience‖.
The second application was for the Anton Piller Order the conditions for the grant of which he
argued based on the two cases of Anton Piller KG (Supra) and Microsoft Corporation’)
(Supra) are first, there must be an extremely strong (emphasis mine) prima facie case. Secondly
the damage, potential or actual must be very serious for the Applicant. Third there must be clear
evidence (emphasis mine) that the Defendants have in their possession of incriminating