Defining Prima Facie Cases: Mrao and Injunction Law

An injunction can stop a sale, freeze the use of property, restrain a business step or preserve a disputed right before a full trial has taken place. Because that power can have serious consequences, a court does not grant temporary relief merely because a dispute exists. Mrao Ltd v First American Bank of Kenya explains the first and most important screening question: has the applicant shown an apparently existing right and an apparent infringement that genuinely requires an answer?

The phrase used by lawyers is a prima facie case. It can sound abstract, but Mrao makes it practical. The applicant must do more than identify an argument worth discussing. The evidence placed before the court must connect a legal right to conduct that appears to violate or threaten it, while leaving the final merits for trial.

The banking dispute behind the famous test

Mrao Ltd had borrowed substantial sums from First American Bank of Kenya and granted securities over property and company assets. After default, the bank appointed receivers and moved to enforce its security. Mrao sought interlocutory injunctions to restrain enforcement and challenged aspects of the charge, debenture and receivership.

The High Court refused temporary relief. On appeal, the Court of Appeal in Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR) upheld that refusal.

The case became famous not because of the amount borrowed, but because the Court explained what the first limb of the Giella v Cassman Brown test actually requires. A prima facie case is more than a genuine or arguable dispute. The material must show an apparent right and an apparent infringement that calls for explanation or rebuttal.

A prima facie case is evidence, not a conclusion

An injunction application is usually supported by affidavit evidence. The court therefore asks what the documents show at first sight without conducting a full trial. A claimant who simply states that a contract is invalid, that a bank acted fraudulently or that property is in danger has not necessarily established the threshold.

The right should be identified first. It might arise from ownership, contract, statute, intellectual property, employment, membership or another legally recognised interest. The next question is what specific act threatens or infringes that right. The affidavit should then attach the material that makes the infringement apparent.

This is why an application built around documents is generally stronger than one built around adjectives. A statutory notice, agreement, title, valuation, correspondence, account statement or official decision can connect the legal theory to a concrete event. The court is not being asked to decide finally that the applicant will win. It is being asked to see enough lawful substance to justify preserving the position while the suit proceeds.

Mrao does not replace the rest of the injunction test

The Court of Appeal's later decision in Nguruman Ltd v Jan Bonde Nielsen & 2 others [2014] KECA 606 (KLR) clarified the sequence. The three familiar Giella requirements are separate hurdles. First, the applicant must establish a prima facie case. Second, the applicant must show irreparable injury that damages would not adequately repair. Third, where appropriate doubt remains, the balance of convenience is considered.

A strong prima facie case therefore does not automatically produce an injunction. The applicant still has to explain the harm that will occur if the court does nothing before trial. Conversely, where no prima facie case is shown, a court should not jump to irreparable harm or convenience as a way of rescuing a weak claim.

That sequential method remains routinely applied in recent Kenyan rulings, including commercial and land disputes decided in 2025. Mrao is therefore not an old banking formula that has faded from practice. Its definition continues to structure everyday applications for interim protection.

The current Civil Procedure Rules make the procedure concrete

Order 40 of the Civil Procedure Rules governs temporary injunctions and interlocutory orders. Rule 1 allows temporary protection where property in dispute is in danger of being wasted, damaged, alienated or wrongfully sold in execution, or where a defendant threatens to dispose of property in circumstances that could obstruct a future decree. Rule 2 permits an injunction to restrain breach of contract or other injury.

The Rules also impose procedural discipline. An ex parte injunction is exceptional and time-limited, service must follow promptly, and applications are to be heard expeditiously. An interlocutory injunction that remains in place while a suit is not determined for twelve months will ordinarily lapse unless the court orders otherwise for sufficient reason.

Those provisions reinforce Mrao's policy logic. Interim relief is meant to preserve justice pending trial, not to become a substitute for trial.

What Mrao means in a modern bank-sale dispute

Bank enforcement remains one of the settings in which Mrao is frequently cited. The legal framework is now shaped by the Land Act. Section 90 requires a chargee to issue a written default notice containing specified information and giving the chargor the statutory opportunity to remedy default. Section 96 requires a further notice before the power of sale is exercised, while section 97 imposes a duty of care and requires a forced-sale valuation.

A borrower seeking an injunction should therefore identify the precise alleged defect. Was the section 90 notice never served? Was the statutory period shortened? Was the section 96 notice missing? Was the valuation omitted or materially defective? Was the proposed sale inconsistent with the charge?

A bare dispute about the amount owed may not, without more, establish an apparent violation of a legal right. Recent 2025 banking decisions continue to use Mrao precisely in this way: the court asks whether the bank's own enforcement record reveals a statutory or contractual defect serious enough to satisfy the prima facie threshold.

Avoiding the mini-trial problem

There is an important limit on the test. A judge deciding an interlocutory application should not make final findings on contested fraud, ownership, breach or credibility. Doing so can prejudge the trial before witnesses have been examined and the complete record has been tested.

Nguruman stresses that the court should identify a clear right threatened with material invasion without closely examining the merits as though deciding the suit. Mrao is demanding because the applicant must show more than an arguable issue, but it remains provisional.

For advocates, the drafting skill is to show enough without asking the court to decide everything. The affidavit should demonstrate the right and the immediate threat, while the submissions explain why the material reaches the threshold. Arguments reserved for final liability should remain for trial.

A practical checklist without turning the case into a checklist

The best injunction application tells a short evidential story. It identifies the right, attaches the document that proves or strongly supports that right, isolates the act that threatens it, and demonstrates why the harm cannot wait for final judgment. Each stage of the legal test should be addressed separately.

For the respondent, the answer should be equally focused. If there is no apparent right, show why. If the act is authorised by contract or statute, produce the authority and compliance documents. If damages would adequately compensate the applicant, explain the measurable nature of the alleged loss. If the applicant has delayed or concealed material facts, that may also matter because injunctions are equitable and discretionary.

For the court, reasons are critical. A ruling should not merely recite Mrao and Giella. It should identify the asserted right, the evidence of infringement and the distinct conclusion reached on irreparable harm. That is what makes interim discretion reviewable rather than impressionistic.

Why Mrao continues to matter

Mrao endures because it gives courts a disciplined way to protect rights without deciding cases too early. It keeps weak applications from freezing lawful activity merely because litigation has been filed, while preserving the court's ability to intervene where the documents reveal an apparently unlawful threat.

Its most useful sentence can be expressed in ordinary language: show the court what right you have, show what the other party is apparently doing to that right, and support both propositions with real material.

That is why the precedent travels far beyond bank cases. Property disputes, commercial conflicts, family-property claims, intellectual-property cases and many other civil proceedings still begin their injunction analysis with the same evidential question. Mrao remains a practical bridge between urgent protection and the fairness of waiting for a full trial before final rights are decided.

Source note

This article is based on Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR), Giella v Cassman Brown & Co Ltd [1973] EA 358, Nguruman Ltd v Jan Bonde Nielsen & 2 others [2014] KECA 606 (KLR), Order 40 of the Civil Procedure Rules, and sections 90, 96 and 97 of the Land Act, with reference to recent 2025 Kenya Law rulings applying Mrao.

Suggested citation: 

Ronald Serwanga, "Defining Prima Facie Cases: Mrao and Injunction Law" East Africa Legal Insight (8 September 2026).