Injunctions in Kenya: Analysis of the Rule in Giella vs Cassman Brown 

In the Kenyan legal landscape, the case of *Giella vs Cassman Brown* has established a significant precedent for obtaining injunctions. In this analysis, we will explore the rule set forth in the case and decipher its implications for seeking injunctions in Kenya.


The rule was derived from the landmark case of Giella v. Cassman Brown & Company Limited (1973) E.A 358, which set parameters for arguing and granting injunctive reliefs. 

The plaintiff, Giella, entered a contract with Cassman Brown & Co. to acquire shares in a company. After a dispute arose between the parties,Giella sought to prevent Cassman Brown from disposing of the shares before the resolution of the dispute. 

The court granted an injunction in favor of Giella, leading to the establishment of a guiding rule for injunctions in Kenya.

The Giella Rule

The rule in Giella vs Cassman Brown can be summarized as follows: 

  1. The applicant must show a _prima facie_ case with a probability of success. 
  2. The applicant must prove that denial of the injunction would lead to irreparable damage that cannot be compensated through damages. 
  3. If points 1 and 2 are satisfied, the court must then use its discretion to determine whether it’s just and convenient to grant the injunction.


The Giella rulehas had several key implications for the Kenyan legal system and for those seeking injunctions in the country. These implications include:

  1. Setting a clear standard for the courts: The Giella rule provides courts with a clear guideline on how to assess applications for injunctions. This has contributed to increased consistency in court decisions and ensured a more predictable legal outcome for litigants.
  2. Balancing competing interests: The Giella rule strikes a balance between the rights of both parties in a dispute to safeguard their respective interests. It does so by considering the probability of success, the potential irreparable damage, and the idea of fairness and convenience when making decisions on granting injunctions.
  3. Flexibility and discretion: The Giella rule allows for the exerciseof judicial discretion in determining whether an injunction should be granted. This gives judges the flexibility to consider the unique circumstances of each case, preventing the legal process from becoming overly rigid or formulaic.


Despite its advantages, the Giella rule has faced some criticisms over the years:

  1. Subjectivity and varying interpretations: Critics argue that the rule’s reliance on judicial discretion can lead to inconsistent outcomes or biased judgments, depending on the judge handling the case. This subjectivity may undermine the predictability and consistency of the legal process. Potential abuse of power: The discretion granted to judges might also result in an abuse of power, where judges could potentially grant injunctions for reasons outside the scope of the rule’s parameters or deny them in circumstances that merit their approval.
  2. Limited recourse for applicants: Some critics suggest that the Giella rule is too restrictive for applicants who may have valid reasons for seeking an injunction but do not satisfy the rule’s stringent requirements. These applicants may find themselves without adequate protection, which could exacerbate their existing legal problems or leave them with insufficient remedy.
  3. Possible delays in court proceedings: Finally, injunctive proceedings may prolong court processes, causing further delays in an already burdensome legal system. This criticism raises concerns about whether granting injunctions might do more harm than good in certain cases or simply complicate matters further.


In sum, the Giella vs Cassman Brown rule has been instrumental in shaping the legal approach toinjunctions in Kenya. It has provided clear guidelines for courts to follow, ensured a balance between competing interests, and allowed for judicial discretion in decision-making. However, it has not been immune to criticisms relating to subjectivity, potential abuse of power, and the possibility that the rule restricts applicants with valid reasons for seeking injunctions or exacerbates delays in the legal system.

Regardless, the Giella rule remains a vital legal precedent in Kenyan jurisprudence, serving as the backbone for the granting of injunctions. As the legal landscape evolves, it remains essential for continued analysis and possible perspectives on how to enhance the rule’s application and address any shortcomings that arise. Ultimately, this would further promote fairness, transparency, and the rule of law in Kenya’s judiciary system.

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