INTERLOCUTORY RELIEFS BEFORE ORDER 11

Question 1

WHAT ARE THE SIX INTERLOCUTORY RELIEFS?

Answer 1

1. Order for commission
2. Security of Costs
3. Arrest before judgement
4. Appointment of receivers
5. Temporary Injunction
6. Attachment before judgement

Question 2

What is ARREST BEFORE JUDGEMENT INTERLOCUTORY RELIEF?

Answer 2

[Order 38, Rule 1 – 4]
* Generally, the rule is that a creditor having a claim against the debtor has first to obtain a decree before they can execute against the debtor
* However, there are other special circumstances where one may be able to apply for arrest of the person before judgment,
e.g. if a person is planning to leave the jurisdiction of the court with the intent to abscond liability and defeat justice

Question 3

WHAT IS ATTACHMENT BEFORE JUDGEMENT INTERLOCUTORY RELIEF?

Answer 3

[Order 39, Rule 5 – 39]
* This is where the defendant is disposing of their property so that they can defeat the realisation of a court decree where one would been awarded
* The court can order for the property to be attached if there is real danger of either party trying to circumvent justice
* The court is usually cautious about granting this order because they are essentially taking away somebody’s property
* The application is by way of Notice of Motion (normally under certificate) and in the Supporting Affidavit you have to state exactly why you feel his property should be attached (i.e. relay your fears to the court)

Question 4

WHAT IS AN ORDER FOR COMMISSION INTERLOCUTORY RELIEF?

Answer 4

[Order 28, Rules 52 – 54, CPR]
Before going to trial, either party may want to conserve/preserve any evidence, or even conserve the testimony of a witness because: the witness will not be able to make is to trial; the witness will not be in attendance at trial because of the costs involved; the witness is barred from the act of being a witness in court even though he has enough information
to be a witness, etc,
* An order for commission is where the court suo moto or through an application by a party seeks an issue of commission –the commission goes to a specific person, and this person must go and reduce the testimony of a witness into writing or make an investigation/inquire into evidence

Question 5

WHAT IS THE TEMPORARY INJUCTION RELIEF?

Answer 5

• An injunction is an auxiliary relief whereby a party is required to do or refrain from doing any particular act
• The primary purpose of injunctions, like any other interim relief, is preservation of property, legal rights and liabilities of
  parties until their conflicting claims are determined
• A temporary injunction can only last for one year (Order 40, Rule 6, CPR)

Order 40, Rule 1 Where in any suit it is proved by affidavit or otherwise—
a) that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any
party to the suit, or wrongfully sold in execution of a decree; or
b) that the defendant threatens or intends to remove or dispose of their property in circumstances
affording reasonable probability that the plaintiff will or may be obstructed or delayed in the
execution of any decree that may be passed against the defendant in the suit,
the court may by order grant a temporary injunction to restrain such act, or make such other order for
the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of
the property as the court thinks fit until the disposal of the suit or until further orders

Question 6

WHAT IS APPOINTMENT OF RECEIVER INTERLOCUTORY RELIEF?

Answer 6

• Appointment of receivers is an equitable relief, albeit, a very drastic one because the court is taking away the rights of both parties at that time
• Normally when you approach the court to appoint a receiver, you will tell the court what you want the receiver to do and the receiver is appointed according to your terms or in accordance with other terms determined by the court and depending on the case
• One is allowed to select a receiver with a professional indemnity so that if they occasion one loss, one can claim from the Insurance

CPR PROVISION WHAT IT STATES
Order 41, Rule 1(1) Where it appears to the court to be just and convenient, the court may by order—
a) Appoint a receiver of any property, whether before or after decree;
b) Remove any person from the possession or custody of the property;
c) Commit the same to the possession, custody or management of the receiver; and
d) Confer upon the receiver all such powers as to bringing and defending suits and for the realisation, management, protection, preservation, and improvement of the property, the collection of the rents and profits thereof, the application and disposal of such rents and profits, and the execution of such documents as the owner himself has, or such of those powers as the court thinks fit

Question 7

WHAT IS SECURITY FOR COSTS INTERLOCUTORY RELIEF?

Answer 7

• This is basically money paid into court through which an unsuccessful plaintiff will be able to satisfy any eventual award of costs made against him
• Where a plaintiff resides outside Kenya or where the plaintiff does not have sufficient immoveable property within Kenya, then the court may order that security for costs be provided
• It is only to be used for the reasonable protection of the interests of the plaintiff or defendant
• If one fails to furnish security to the satisfaction of court and the other party, then the case will be dismissed

CPR PROVISION WHAT IT STATES
Order 26, Rule 1 In any suit, the court may order that security for the whole or any part of the costs of any defendant or third or subsequent party be given by any other party
Order 26, Rule 2 If an application for security for costs is made before a defence is filed, there shall be filed with the application an affidavit setting out the grounds of the defence together with a statement of the deponent’s belief in the truth of the facts alleged