By Joseph Njogu
An interim court order can protect the Constitution, preserve the subject matter of litigation and prevent irreversible injustice.
But when temporary orders paralyse businesses, sporting competitions and major investments for months, without prompt inter partes hearings, the question is whether Kenya has struck the right balance between access to justice and commercial certainty.
Imagine 18 football clubs preparing to begin a new season. Players have trained, sponsors have committed money, broadcasters have scheduled matches and supporters have bought tickets. Then, hours before kick-off, a court order brings the competition to a halt.
The dispute may be genuine.
The parties may have legitimate grievances. The judge may have acted out of a sincere desire to prevent injustice. Yet the consequences extend far beyond the litigants.
Clubs lose revenue, players lose playing time, sponsors question their commitments and supporters are left disappointed.
Now imagine that different courts issue orders with competing implications for the same competition.
One order requires a particular qualification match before the league proceeds; another directs the inclusion of a disputed team.
The organisers face the unenviable task of complying with judicial orders that appear difficult to reconcile.
This is not merely a sporting problem. It raises a fundamental question about the administration of justice: how should the courts balance the right to seek judicial protection against the public and economic costs of prolonged interim relief?
The same question arises in major corporate transactions, infrastructure projects and investments involving billions of shillings. The extraordinary power of a temporary orderAn interim order is not a final determination of the rights of the parties.
Its purpose is to preserve the position, prevent irreparable harm or ensure that the eventual judgment is not rendered meaningless.
That power is indispensable in a constitutional democracy. Without it, public bodies could implement unlawful decisions before affected citizens had an opportunity to challenge them.
Property could be transferred, evidence destroyed, public resources dissipated and constitutional rights violated before a court could intervene. But interim relief has another characteristic: its practical effects can be enormous even when its legal status is temporary.
A transaction may be suspended. Financing arrangements may collapse. Contractual deadlines may expire. Investors may incur substantial losses.
A business may suffer reputational damage that no subsequent judgment can fully repair.
An order described as temporary can therefore produce consequences that are difficult, if not impossible, to reverse. The problem is not that courts issue interim orders.
The problem arises when the duration and practical consequences of those orders become disproportionate to the urgency that justified them.
The constitutional petition: inexpensive to file, expensive to defendBut the cost of filing is not the same as the cost of litigation.
A petition that begins with relatively modest expenditure can require extensive legal research, affidavits, documentary evidence, several court appearances and years of litigation.
For a company defending a transaction worth billions of shillings, the legal and commercial costs may be substantial.
This creates an imbalance that deserves careful attention.
A petitioner may obtain an urgent order at relatively little initial expense, while the respondent bears the immediate burden of complying with it, seeking its discharge and defending the substantive proceedings.
The delicate balance between public interest and commercial certainty.
Consider a major corporate acquisition. The transaction may have received approvals from the relevant regulators, undergone due diligence and proceeded on the basis of legal advice. Yet a subsequent petition may seek to suspend or reverse it.
Regulatory approval does not place a transaction beyond constitutional scrutiny. Regulators can make mistakes, statutory requirements can be violated and a transaction can raise legitimate questions about competition, taxation, public interest or compliance with the law.Equally, the mere filing of a petition does not establish that a transaction is unlawful.
The objective must be neither to shield businesses from constitutional accountability nor to allow commercial transactions to be paralysed indefinitely by unresolved interlocutory disputes. It must be to protect the rule of law while preserving reasonable certainty in economic affairs.
Eight reforms worth considering
The Chief Justice and the Judiciary can improve the management of interim relief without compromising judicial independence or the constitutional right of access to justice.
1. A transparent register of significant interim orders.
The Judiciary should consider publishing a searchable register of significant interim orders affecting major transactions, public infrastructure and other enterprises of substantial public importance.
2. Prompt return dates and periodic review.
Urgent ex parte orders should ordinarily specify an early return date at which the affected parties can be heard. Orders should be reviewed in light of the evidence and developments in the case.
3. Verification and full disclosure.
A person seeking urgent relief should provide sufficient information to establish standing, explain the alleged harm and disclose material facts, including previous applications concerning the same subject matter.4.
Appropriate and proportionate safeguards.
Courts should consider undertakings in damages or security for costs where legally appropriate and proportionate to the circumstances.
Such measures can discourage abusive applications and help address the harm caused by unjustified injunctions.
5. Proper allocation of commercial disputes.
Proceedings whose substance is a commercial dispute should ordinarily be allocated to the appropriate commercial court or division, where jurisdictional rules permit.
6. Expedited hearings for exceptionally large transactions.
For transactions of substantial economic significance, the Judiciary could consider expedited hearings and appropriate case-management directions. A threshold of Sh1 billion, for example, might be explored as a policy criterion for prioritization.7. Coordination of related proceedings.
Where substantially identical applications concerning the same transaction are filed in different courts, mechanisms for disclosure, transfer, consolidation or coordinated case management should be used.
8. Accountability without intimidation.
The Judicial Service Commission and the Judiciary should examine systemic patterns involving delayed hearings, repeated applications, inconsistent orders and prolonged interim relief. The interim order being the most consequential instruments of judicial power, can be abused to shape events before the underlying dispute has been decided.
The Chief Justice cannot dictate how judges decide cases.
The office can, however, promote sound case management, improve administrative transparency and support procedures that bring urgent disputes to a timely hearing.
The ultimate objective is simple: protect the Constitution without turning interim relief into a substitute for a final judgment.
The writer is a communications expert who comments on topical issues.
You can reach him on newstodayke@gmail.com
