The Applicants in this matter, namely, MARY
ARIVIZA and OKOTCH MONDOH, have filed a Reference in this Court basically
praying for declaratory orders.
 In essence they are praying that the conduct and process of the
Referendum as well as the promulgation of the new Constitution in the
Republic of Kenya be declared contrary to law, null and void and an
infringement of the East African Community Treaty.
 However, pending the determination of the Reference, the Applicants have
applied for a temporary injunction seeking to restrain the Attorney -
General of the Republic of Kenya (hereinafter to be referred to as the “1st
Respondent”) from receiving, tabling and making or passing any legislation
to implement the new Constitution until the hearing and determination of the
Reference by this Court. Further to the foregoing they are also praying that
any legislation passed by the Parliament of Kenya to implement the new
Constitution be stayed until the hearing and determination of the Reference.
 It may be necessary at this juncture to state that the Applicants allege
that the 1st Respondent has begun the process of implementing the new
Constitution by fast-tracking bills through the Parliament of Kenya to the
detriment of the Claimants and that the Reference shall be rendered nugatory
if the injunction is not granted.
 It was submitted by Mrs. Judith Wambui Madahana and Mr. Luka Sawe, the
learned advocates for the Applicants, if we may put it in a nutshell,
relying heavily on the affidavits sworn by the two applicants, that they
have a prima facie case with a probability of success in that the 1st
Respondent was responsible for setting in motion an automatic promulgation
of a Constitution which is unlawful and not representative of the majority
of Kenyans. It is the thrust of their argument on behalf of the Applicants
and purportedly all Kenyans, that if the injunction sought is not granted,
there is every possibility of enacting laws culminating into total breakdown
of law and order and violation of the rule of law and the doctrine of
separation of powers. It was submitted further that at the moment the
Judiciary has been paralyzed, the Executive is in full control of the
constitutional process and the Legislature does what it desires to do. It is
their main argument that all these erode and/or undermine the rule of law.
 It is against this background that both learned counsel submitted that
if the injunction is not granted Kenyans will suffer irreparable injury and
that the balance of convenience tilts in favour of the Applicants.
 In rebuttal learned advocates for the Respondents Messrs Kepha Onyiso
and Nderi Nduma, vigorously submitted that the Applicants have not
established a prima facie case with a probability of success as set out in
the case of GIELLA V CASSMAN BROWN & CO LTD  EA. 358.
 They further submitted that the Applicants have not shown that they will
suffer any loss, if at all, in the event the injunction, so sought, is not
granted. On the contrary, it is the thirty eight (38) million or so Kenyans
who stand to suffer if this Court grants the injunctive orders sought. It is
their contention that the balance of convenience favors the respondents.
 We have dutifully, and carefully considered the rival submissions by
learned Counsel to this application, the evidence and the law on the subject
and we have the following to say:
 One, the granting or refusal of a temporary injunction, which is an
interlocutory order, is an exercise of judicial discretion which must be
exercised judiciously. (See: SARGENT V PATEL (1949) 16 E.A.C.A 63).
 Two, the purpose of a temporary injunction is to preserve the status
quo. (See: NOOR MOHAMED HANMOHAMED V KASSAMALI VIRJI MADHANI (1953) 20 EACA
8 and GARDEN COTTAGE FOOD LIMITED V MILK MARKETING BOARD  A.C 130.
 Three, the conditions for the grant of an interlocutory injunction are
now well settled in East Africa:-
(a) an applicant must show a prima facie case with a probability of success;
(b) an interlocutory injunction will not normally be granted unless the
applicant might otherwise suffer irreparable injury, which would not
adequately be compensated by an award of damages;
(c) If the court is in doubt, it will decide an application on the balance
of convenience. (See: GIELLA & CASSMAN BROWN CO. LTD (supra), E. A
INDUSTRIES V TRUFOODS,  E A 420, PROF. PETER ANYANG- NYONG’O AND 10
OTHERS V THE ATTORNEY GENERAL OF KENYA AND 5 OTHERS, Ref. No 1 of 2006 (EACJ)
and EAST AFRICA LAW SOCIETY AND 4 OTHERS V THE ATTORNEY GENERAL OF THE
REPUBLIC OF KENYA AND 3 OTHERS - Application No. 9 of 2007 (EACJ) arising
out of Ref. No. 3 of 2007 (EACJ).
 In light of the aforestated general principles, we now turn to the
facts of the present case. Having regard to what stands out clearly from the
Applicants’ affidavits in support of the Reference, the replying affidavits
of the Respondents and the oral submissions of the learned counsel
representing the parties, we find that the totality of the facts disclose
bona fide serious issues to be investigated by the Court. In other words,
there is an arguable case. (See: AMERICAN CYANAMID CO V ETHICON LTD  1
ALL ER 504).
 At this stage we must of course refrain from making any determination
on the merits of the application or any defence to it. A decision on the
merits or demerits of the case must await the substantive consideration of
the facts and applicable law after full hearing of the Reference.
Consequently, we are satisfied that the Applicants have crossed over the
 We now come to the second condition, namely, that the Court’s
intervention is necessary to protect the Applicants from the kind of injury
which may be irreparable and which cannot be compensated by way of damages
in the event the application is refused.
 Here we must say that since the Referendum in question, a lot of water
has run and continues to run under the bridge. Stopping this process by way
of a temporary injunction, would occasion more injury should the Court find
for the Respondents in the Reference.
 In the event, however, that the Court finds for the Applicants, it is
our strong view that all that will have been done, can be undone with
minimum injury, if any, to either party.
 In light of the foregoing, we are of the decided view that no
irreparable injury will be occassioned to the Applicants if the order sought
is not granted.
 In the result, we are amply satisfied that the Applicants have not made
out a case for the grant of the order sought. The application is accordingly
dismissed. Costs to be in the cause.
It is so ordered.
DATED and DELIVERED at Arusha on this 23rd day of February, 2011.