Interim court orders must not become final justice

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, Kenya must ask whether it has struck the right balance between access to justice and commercial certainty.

Imagine 18 football clubs ready for a new season when a court order halts the competition, costing clubs revenue, players game time and sponsors confidence. Conflicting orders from different courts can compound the disruption, raising questions about balancing access to justice with economic certainty.

The power of temporary orders

Interim orders do not finally determine the rights of parties. They preserve the position, prevent irreparable harm or ensure that a final judgment remains meaningful.

This power is indispensable in a constitutional democracy. Without it, unlawful decisions could be implemented, property transferred and constitutional rights violated before a court intervenes.
However, temporary orders can have lasting consequences. Transactions may collapse, financing arrangements unravel, contractual deadlines expire and businesses suffer losses that subsequent judgments cannot fully repair.
The problem is not the issuance of interim orders, but situations in which their duration and practical effects become disproportionate to the urgency that justified them.

The cost of constitutional litigation

A petition may be relatively inexpensive to file but costly to defend. Legal research, affidavits, documentary evidence, court appearances and prolonged proceedings can impose substantial financial and commercial burdens.

A petitioner may obtain an urgent order at modest initial expense, while the respondent must comply with it, seek its discharge and defend the substantive case.
This imbalance warrants attention, particularly where major investments are involved.
Regulatory approval does not place a corporate acquisition beyond constitutional scrutiny. Authorities can err, statutory requirements can be breached and transactions can raise legitimate questions about competition, taxation or public interest.
Equally, filing a petition does not establish that a transaction is unlawful. The objective should be to preserve constitutional accountability without allowing unresolved interlocutory disputes to paralyse economic activity indefinitely.

Eight reforms worth considering

The Chief Justice and the Judiciary can improve the administration of interim relief without compromising judicial independence or access to justice.

First, the Judiciary should consider a searchable register of significant interim orders affecting major transactions, infrastructure projects and enterprises of substantial public importance.
Second, urgent ex parte orders should ordinarily specify an early return date for hearing all parties, followed by periodic review where necessary.
Third, applicants should disclose material facts, establish their standing, explain the alleged harm and identify previous applications concerning the same subject matter.

Security of costs 

Fourth, courts should consider undertakings in damages or security for costs where legally appropriate and proportionate, helping address losses arising from unjustified injunctions.
Fifth, commercial disputes should be allocated to the appropriate commercial court or division where jurisdictional rules permit.
Sixth, exceptionally large transactions could benefit from expedited hearings and tailored case-management directions. A threshold of Sh1 billion, for instance, could be explored as a policy criterion for prioritisation.
Seventh, courts should use appropriate mechanisms for disclosure, transfer, consolidation or coordinated case management when substantially similar applications concerning the same transaction arise in different courts.
Eighth, the Judiciary and Judicial Service Commission should examine systemic patterns of delayed hearings, repeated applications, inconsistent orders and prolonged interim relief without intimidating judicial officers or interfering with judicial independence.
Interim orders are among the most consequential instruments of judicial power because they can shape events before the underlying dispute is determined. Their administration therefore demands urgency, proportionality and accountability.
The Chief Justice cannot dictate how judges decide cases. The office can, however, promote sound case management, administrative transparency and procedures that bring urgent disputes to timely hearings.
The objective is simple: protect the Constitution without allowing interim relief to become a substitute for a final judgment.

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The writer is a communications expert who comments on topical issues. You can reach him on [email protected].