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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal No. 50 of 1988

Chatur Radio Service v Pronogram Limited

Court of Appeal
20 May 1994
11,038 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~44 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Court of Appeal allowed, by a two-to-one majority, an appeal against a High Court award of Shs 2,000 in damages following the dismissal for want of prosecution of Pronogram Limited's copyright suit against Chatur Radio Service. The respondent had obtained an ex parte Anton Piller injunction from Cockar J on 4th December 1980 under order XXXIX of the Civil Procedure Rules and section 3A of the Civil Procedure Act, giving an undertaking as to damages. After the suit's dismissal, Shaikh Amin J found the appellant had suffered damages far exceeding Shs 2,000 but felt bound by Mayers v Akira Ranch Ltd (No 2) to cap the award at the section 64 maximum. Gicheru JA, with Muli JA concurring, held Mayers distinguishable: there, no undertaking had been given, so section 64 was the only recourse; here, the undertaking attached to the injunction order and its enforcement under order XXXIX rule 2(3) and (4) is independent of section 64, so damages were not capped. The Court held the undertaking is given to the Court, enforceable by attachment or committal, and that inherent jurisdiction cannot circumvent statutory procedure. Omolo JA dissented, holding the undertaking conferred no jurisdiction to award damages beyond section 64 and that subsidiary legislation cannot exceed the parent Act. The appeal was allowed with costs and the case remitted for proper assessment of damages.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the trial judge was bound by Mayers v Akira Ranch Ltd (No 2) to limit damages to Shs 2,000 under section 64 of the Civil Procedure Act
  2. 2.Whether damages recoverable on an undertaking as to damages given with an interlocutory (Anton Piller) injunction are limited to the statutory maximum under section 64
  3. 3.Whether the inherent jurisdiction under section 3A could be invoked to award damages beyond the statutory limit
  4. 4.Whether the undertaking as to damages founded a cause of action separate from sections 63 and 64 of the Act

Key legal issues

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01

Whether Mayers v Akira Ranch Ltd (No 2) barred an award of damages exceeding Shs 2,000

Holding

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.

Reasoning

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.

p. 6
02

Nature and effect of an undertaking as to damages

Holding

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.

Reasoning

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).

p. 3
03

Whether the inherent jurisdiction under section 3A could be invoked to award larger damages

Holding

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.

Reasoning

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.

p. 10
04

Whether an Anton Piller injunction is final or interlocutory (dissent)

Holding

Omolo JA held it is temporary and interlocutory, issued under order 39, and subject to that order's provisions.

Reasoning

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.

p. 13

Legal principles established

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  • 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

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  1. 1.Appeal allowed with costs to the appellant
  2. 2.Case remitted to the superior court for proper assessment of damages (majority: Gicheru JA to the trial judge; Muli JA to another judge)

The bench

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Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.

majority

Wrote the judgment

Wrote the leading judgment holding that where an undertaking as to damages attaches to an interlocutory injunction, an inquiry into damages is enforceable under order XXXIX rule 2(3) and (4) independently of section 64 of the Civil Procedure Act, and damages are not limited to the statutory maximum of Shs 2,000.

Such enforcement is independent of section 64 of the Act and the damages recoverable in that regard are not limited to the maximum of Shs 2,000/- provided for by that section.p. 6
majority

Wrote the judgment

Concurring judgment holding that the undertaking was given to the Court, that claims under order XXXIX are separate and distinct causes of action from claims under sections 63 and 64 of the Civil Procedure Act, and that the trial judge had unfettered discretion to award unlimited damages on the undertaking.

He had unfettered discretion to award unlimited damages without regard to the maximum provided for under sections 63 and 64 of the Act. This was a misdirection.p. 10
dissenting

Wrote the judgment

Dissenting: an Anton Piller injunction is temporary and interlocutory under order 39; the undertaking is given to the Court and confers only power to punish breach, not to award damages beyond section 64; order 39 being subsidiary legislation cannot create a cause of action exceeding the parent Act; would have dismissed the appeal.

For my part I am satisfied that order 39 rule 2(2) does not authorise a Court to assess damages in excess of the Shs 2,000/- prescribed by section 64 of the Act.p. 15
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)

Relief refused

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Invocation of the court's inherent jurisdiction under section 3A to award damages beyond section 64

Where a statutory procedure exists, inherent jurisdiction cannot be invoked to circumvent it

p. 7

Dissenting view that damages be limited to Shs 2,000 under section 64

Omolo JA held the undertaking conferred only power to punish breach, not to award damages beyond the statute

p. 15

Costs

Appeal allowed with costs to the appellant.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Such enforcement is independent of section 64 of the Act and the damages recoverable in that regard are not limited to the maximum of Shs 2,000/- provided for by that section.
p. 6Damages on undertaking not capped by section 64
save in exceptional circumstances, an undertaking as to damages should always be required when an interlocutory injunction is granted
p. 3Undertaking as to damages required on interlocutory injunctions
An undertaking is given to the Court, not to the other party, and a suit cannot be founded on such an undertaking.
p. 2Nature of undertaking as to damages
where there exists a statutory procedure, like in this case, the inherent jurisdiction of the court cannot properly be invoked to circumvent the statutory procedural provision.
p. 7Inherent jurisdiction cannot circumvent statute
In the result, I would allow this appeal with costs to the appellant. I would remit the case to the superior court for assessment of damages by another judge.
p. 11Disposition (Muli JA)
For this reason, I would allow the appellant’s appeal with costs and order that the case be remitted to the trial judge for the proper assessment of damages.
p. 6Disposition (Gicheru JA)
It is for these reasons that I would myself dismiss this appeal with costs. My Lords are, however, of a different view and the orders of the Court shall be as proposed by them.
p. 16Dissent and final orders of the Court

Issues in the judgment

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minor

Recording date of 'Mary's Boy Child' given as 1989 by Muli JA but 1978 by Omolo JA.

minor

Mayers case citation varies between [1972] EA 347, 348 and 350 within the judgment.

minor

Muli JA refers to 'four causes of action' and later 'five options of causes of action' inconsistently.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.