11 August 1972
Criminal Appeal No. 40 of 1971
COURT OF APPEAL FOR EAST AFRICA
CYRIL HERBERT MAYERS AND HAZEL MARGARET MAYERS
AKIRA RANCH LIMITED
BEFORE: PRESIDENT: Duffus
JUDGES OF APPEAL: Mustafa
Editor's Note: Appeal from the ruling and order of the High Court of Kenya at Nairobi (Simpson, J.) dated 1st April, 1971 in Civil Suit No. 1353 of 1969
 A consent judgment was entered in certain proceedings in the High Court, in pursuance of which the respondent company (to which I shall refer as Akira) executed a chattels mortgage over 1,200 head of cattle in favour of the appellants.
 The present suit was brought by Akira and another company, the name of which has since boon struck out, for a declaration that the chattels mortgage, and certain other instruments with which we are not now concerned, wore void and unenforceable.
 In purported exercise of the powers conferred by the chattels mortgage, the first appellant (to whom I shall refer as Mayers) seized the cattle and removed them.
 The two plaintiff companies then applied exparte for an injunction to prevent the sale of the cattle and to order their return. An injunction was granted, as prayed, on 18th December, 1969. As soon as they became aware of it, the appellants moved to have it set aside.
 The mandatory injunction was immediately suspended but the application for rescission was not disposed of until 1st April, 1971. The learned judge who heard the application discharged the injunction but refused to order an enquiry into damages, an order for payment of damages so found and a stay of the proceedings until payment.
 It is against that refusal that the present appeal is brought. The application for the injunction was rightly criticized as not complying with the practice as set out in Noormohamed Janmohamed v. Kassamali Virji Madhani (1953) 20 E.A.C.A. 8.
 The order granting it was criticized partly on the ground that it should not have been made because the affidavits supporting the application did not prove the essential requirements prerequisite to the grant of an injunction and partly because the applicants were not required to enter into an undertaking as to damages.
 I think there is substance in both these criticisms. As regards the latter? there does not appear to be any East African authority laying down any rule of practice.
 In England, such undertakings are invariably required, save in certain special circumstances, such as application on behalf of the crown.
 I do not know the practice in India, but Order .39, rule 2(2) in the First Schedule to the Civil Procedure Code, 1908, allows the court, when granting an injunction, to impose terms, and it appears from the commentaries that this power has been used to require an undertaking as to damages. When that rule was reproduced in the Kenya Civil Procedure (Revised) Rules, 1948, the words “an inquiry as to damages" were inserted, which suggests that the intention was that the English practice should be followed.
 Be that as it may, I am firmly of the opinion that, save in exceptional circumstances, such an undertaking should always be required when an interlocutory injunction is granted.
 This brings me to a matter on which we thought it desirable to ask counsel to address us, as it touches on jurisdiction. The application for discharge of the injunction, which was headed inter alia with a reference to section 97 of the Civil Procedure Act, contained a prayer for such further or other order as the justice of the case might require.
 At the hearing of the application, Mr. Khanna, who appeared for the appellants, specifically asked for an order for an enquiry into damages and the consequential orders. It was quite apparent from the affidavit annexed to the application that a very large sum would be claimed. We wished to be satisfied that the High Court had jurisdiction, in the circumstances, to make the order sought and that the procedure adopted was correct.
 Mr. Khanna made various submissions on those matters. First, he submitted that section 64 of the Act, to which we had referred him, could not apply to the high Court. That section allow the court, on application, summarily to award compensation not exceeding two thousand shillings to a defendant as compensation for expense or injury caused to him by a temporary injunction granted on insufficient grounds.
 Mr. Khanna argued that if it applied to the High Court, it would be in derogation of the unlimited jurisdiction of the court and so be unconstitutional. With respect, I see no merit in that argument.
 The fact that the High Court is a court of unlimited jurisdiction does not mean that the legislature cannot limit the relief to which a person is entitled or oven deprive him of relief, as indeed is done by the laws relating to limitation of actions. I can see nothing in section 64 itself to suggest that it applies only to subordinate courts and I am firmly of the opinion that it, like the section which precedes it, applies also to the High Court.
 I may add that it would appear from the commentaries of Mulla and Chitaley and Rao on the Indian Code that section 95, from which the Kenya section 64 was derived, is invoked by the High Courts in India.
 Secondly, Mr. Khanna argued that section 64 should be read subject to section 91, which provides for restitution and imposes no limit. He conceded that section 91 applies only when a decree is varied or reversed, and that, I think, disposes of this argument.
 Thirdly, he argued that the limitation imposed in section 64 should only apply to applications brought under that section. This brought him to his main argument, which was, that nothing in the Act affects the inherent power of the court, preserved by section 97, and that it is the duty of the court to invoke that power when the ends of justice so require.
 Mr. Slade, for Akira, argued that the High Court has jurisdiction to award damages in respect of an injunction wrongly obtained only on one of three bases: under section 64,in which case it is subject to the limit of shs 2,000/-under section 91, which ho submitted would apply only to perpetual injunctions; and where an undertaking has been given.
 Section 64(2) provides that in order an application under the section bars a suit for compensation and this implies that a suit may otherwise be brought. Mr. Slade submitted that such a suit could only be a suit founded on an undertaking.
 With respect, this cannot be so. An undertaking is given to the court, not to the other party, and a suit cannot be founded on such an undertaking is dealt with in the same way as the breach of an undertaking. In England, the breach of such an injunction (see the Supreme Court Practice, 1967, notes under O. 29, r. 1and 0.45, r. 5), by proceedings for committal.
 In Kenya, the procedure is by attachment or committal, under Order XXXIX, rule 2(3).
 Mr. Slade sought to support his argument by reference to various English Cases and he drew our attention to the use by Cotton, L.J., in Smith v. Day (1882) 21 Ch. D. 421 at page 430, of the expression "jurisdiction founded on the undertaking".
 Mr. Khanna, in reply, submitted that jurisdiction could not be based on the undertaking, as consent of parties can never confer jurisdiction.This argument again is based, I think, on a mis¬-conception. The matter is not one of consent. The court has power to enforce undertakings given to it and to punish the breach of such undertakings: the power comes into being when the undertaking is given, and it is only in this sense that the word jurisdiction should be read. In this connection, in arguing that the reason for an undertaking is not to confer jurisdiction, Nr Khanna submitted that the reason for it is to avoid the necessity for a fresh action, a submission which seems to me inconsistent with his main argument.
 In my opinion, the reference to suits in section 64(2) can only be to suits in tort for abuse of civil process. I cannot think of any other cause of action that could be invoked.
 I am reinforced in the opinion by an examination of the judgment in Nanjappa Chettiar v Ganapathi Gouden (1912) I.L.R. 35 Mad.598 and the commentaries of Mulla and Chitaley and Rao, which show that section 95 of the Indian Code is so interpreted. I do not think this is necessarily inconsistent with a remark of North, J., in Attorney-General v. Albany Hotel Company (1896) 2 Ch. 696 to which Mr. Slade referred us.
 Speaking of undertakings in damages , the learned judge said “ it is difficult to see how in the absence of such an undertaking, the defendant could recover from the plaintiff the damages which wore really sustained by him by reason of the improper order of the court".
 The action for abuse of civil process is only available where both absence of reasonable and probable cause and malice can be proved and this will obviously only be in the exceptional case.
 The position in Kenya would seem be that a defendant can recover damages from the plaintiff in respect of a temporary injunction wrongly granted¬
(a) on a broach of any term contained in an order
(b) made under Order XXXIX, rule 2(2), and enforceable under rule 2(3) summarily, up to a maximum 0f shs, 2 ,000 under section 641
(c) under section 91, where a decree has issued and has been subsequently varied or reversed; or
(d) in a suit brought for abuse of civil process.
 The question is, whether the high court may, and should, and invoke its inherent power so as to award damages which could not be awarded in any of those ways.
 In my view, it cannot. The inherent power could only be invoked in the proceedings in which the injunction was discharged, but that is precisely the situation for which section 64 provides.
 In providing that the court may award compensation not exceeding 2, OOO, the statute is, in effect, saying that the court shall not in such proceedings award more than shs. 2, 000.
 The inherent power cannot be invoked so as to defeat the express provisions of a statute.
 Mr. Khanna, in the course of his argument suggested that section 64 only applied to an application expressly brought under that section and could not limit the power of the court to grant an application invoking the inherent power of the court. With respect, I cannot accept that proposition. I think section 64 governs all interlocutory applications made to the court for damages for injury suffered through the improper grant of a temporary injunction. An application should properly be headed with a reference to the section, but it applies whether or not it is so cited.
 It follows that in my opinion the application for an order for an enquiry into damages in the form in which it was presented could not properly have boon granted and therefore that this appeal must fail.
 The learned judge gave three reasons for refusing to order an enquiry. First, he said that Mayers had "brought these costs upon himself by removing the cattle as he did and could at any time have avoided further costs by returning the cattle to Akira Ranch”.
 With respect, I think the first part of this proposition would have justified standing the application over until the hearing of the suit rather than dismissing it, because it seems to go to the merits of the suit.
 As regards the second part, Mr. Khanna complained that the cattle could not lawfully have been returned, owing to foot-and-mouth regulations and in any case, considerable cost would have been involved. Secondly, the learned judge said that there had been inordinate delay in prosecuting the application.Here, Mr. Khanna complained that the delay had not been the fault of the appellants.
 He alleged that it had been partly the inevitable consequence of the agreement of the parties to give priority to an application for the striking out of the other plaintiff company and partly to delays in the court itself.I must say that I find the delay disgraceful and inexplicable.
 This was a simple little matter of great urgency, yet it took over fifteen months before it was decided. I can see no reason why it needed to await the outcome of the other application nor do I see why it need necessarily have been taken by the same judge.
 There is, however, in my opinion, not sufficient material before us to enable us to apportion the blame and certainly not enough to justify our saying that the learned judge was wrong, when he knows, as we do not, the causes of delay in the High Court.
 Thirdly, the learned judge gave as a reason for dismissing the application that it had not formally been contained in the notice of motion. On this, I am inclined to agree with Mr. Khanna that it was not a good reason.
 Mr. Slade argued that had it been included in the formal application, Akira would have been prepared for it and could have produced evidence as to the damages. The time for such evidence, however, was after an inquiry had been ordered and, in any case, an adjournment could, if necessary, have been granted on terms. There is one other matter that I would mention.
 Mr. Slade, in the course of his argument, submitted that decisions of the English courts given prior to 1898 on the interpretation of the Common Law are binding on this Court and not merely persuasive.
 With respect, I cannot agree. There have been cases, where the English courts after that date have held that earlier decisions were wrong.
 I think it would be quite absurd if we were to be bound by decisions of English courts which we think wrong and which have, in England been held wrong, or which may in the future be held wrong there.
 In my opinion, we should treat the pre-1898 English decisions on the Common Law with the highest respect, but I think we have the power to depart from any such decision if we are convinced that it was wrong and that there is no reason of judicial policy for continuing to follow it.
 I have referred briefly to these matters, but I would base my decision on my belief that the enquiry, as sought by the appellants, could not properly have been granted. I would dismiss the appeal with costs and a certificate for two advocates.
 I have had the advantage of reading the judgment prepared by Spry, V.-P. I am in complete agreement with his reasoning and conclusion and concur in the order proposed by him.
 I have read and entirely agree with the judgment of the learned Vice-President and as Mustafa, JA also agrees, the appeal is dismissed with costs and with a certificate for two advocates.