he Giella test is forty-three years old. The questions courts are asking under it, prima facie case, irreparable injury, balance of convenience, are unchanged. What has changed is the evidential weight a Kenyan court now expects you to bring to each of them.
Three rulings from the last twelve months are worth a careful read. Together they sharpen the threshold, narrow the categories of harm a court will accept as irreparable, and raise the bar on the supporting affidavit.
Prima facie case, more than an arguable one
The court has been careful, in three reported decisions, to draw the line between an arguable case and a prima facie one. The prima facie case requires more than disputed facts; it requires a foundation from which, on the present material, a reasonable tribunal could find for the applicant at trial. The affidavit needs to do that work.
Irreparable injury, the contraction is real
The category of harm a court will treat as incapable of being compensated in damages has narrowed. Loss of goodwill is still recognised; loss of contractual revenue is increasingly treated as quantifiable and therefore compensable. The applicant who pleads the latter without addressing why damages will not suffice is increasingly being told that damages will.
“The strongest applications are now those that show, with figures, why damages are an inadequate remedy, not those that assert it.”
Mareva-type freezing orders
Freezing orders remain available but are being granted only on full and frank disclosure of the applicant's case, including the parts that cut against the application. Two recent rulings discharged orders for material non-disclosure in circumstances where, on an older standard, the orders would likely have survived. The implication is straightforward: the without-notice application now needs the same care as a contested hearing.
Three drafting changes worth making
- Lead the affidavit with the prima facie case, not with the relief sought.
- Quantify the harm, and explain why damages, even if quantifiable, will not be paid or will not be sufficient.
- Disclose the weaknesses of the case in the same affidavit. The court will find them; the credibility cost of letting it find them is significant.