Chatur Radio Service v Pronogram Limited
The bottom line
#Kenya's Court of Appeal ruled that damages for a wrongly granted injunction aren't capped at Shs 2,000 when the winning party gave an undertaking to pay damages.
What this practically means
#Executive summary
#Key legal issues
#Whether Mayers v Akira Ranch Ltd (No 2) barred an award of damages exceeding Shs 2,000
Mayers was distinguishable because in that case there was no undertaking as to damages; where an undertaking attaches to the injunction, an inquiry as to damages is a matter of course and damages are not capped by section 64.
In Mayers the only recourse was compensation under section 64 because no undertaking had been given. Here the respondent gave an undertaking as a term of the Anton Piller order. Enforcement of that term under order XXXIX rule 2(3) and (4) is independent of section 64, so the statutory maximum does not apply. The trial judge erred in restricting himself to Shs 2,000.
Nature and effect of an undertaking as to damages
The undertaking is given to the Court, confers power on the Court to enforce it by attachment or committal, and compliance involves a judicial inquiry into the defendant's damages.
The undertaking protects a defendant against damage from a wrongly granted interlocutory injunction, preserving the injunction's purpose without rendering it nugatory. Order XXXIX rule 2(2) permits the Court to grant an injunction on terms as to an inquiry as to damages, which amounts to an undertaking enforceable under sub-rules (3) and (4).
Whether the inherent jurisdiction under section 3A could be invoked to award larger damages
No - where a statutory procedure exists, inherent jurisdiction cannot be used to circumvent it; but section 64 did not govern this claim, which was founded on the undertaking under order XXXIX.
Muli JA accepted that inherent jurisdiction cannot displace a statutory procedure. However, the claim here was not under sections 63 and 64 but under order XXXIX on the undertaking, a separate and distinct cause of action, so the section 64 maximum did not arise and the judge had unfettered discretion to award just damages.
Whether an Anton Piller injunction is final or interlocutory (dissent)
Omolo JA held it is temporary and interlocutory, issued under order 39, and subject to that order's provisions.
There is no provision in the Act or Rules called an Anton Piller injunction; the High Court can only issue injunctions under order 39, whose heading is 'Temporary Injunctions and Interlocutory Orders'. An ex parte Anton Piller order would lapse after 14 days under rule 3(2) and is dischargeable under rule 4, confirming its interlocutory character.
Legal principles established
#- Where an undertaking as to damages is given on the grant of an interlocutory injunction, an inquiry into damages on the plaintiff's failure is enforceable under order XXXIX rule 2(3) and (4) independently of section 64, and is not limited to the statutory maximum of Shs 2,000.
- Save in exceptional circumstances, an undertaking as to damages should always be required when an interlocutory injunction is granted.
- The inherent jurisdiction of the court cannot be invoked to circumvent an existing statutory procedure.
- An undertaking as to damages is given to the Court, not to the other party, and no suit can be founded on it; breach is enforceable by attachment or committal.
Court orders
#- 1.Appeal allowed with costs to the appellant
- 2.Case remitted to the superior court for proper assessment of damages (majority: Gicheru JA to the trial judge; Muli JA to another judge)
- On appeal from
- High Court of Kenya at Nairobi
- HCCC No. 3380 of 1980
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over appeals from the High Court (section 3A Civil Procedure Act context; first appeal on damages award)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chatur Radio Service v Pronogram Limited", Case Analysis (1994). Civil Appeal No. 50 of 1988. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1994/111/eng@1994-05-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.