Harrison v Ilado & 6 others (Civil Suit E229 & E233 of 2021 (Consolidated)) [2022] KEHC 17161 (KLR) (Civ) (22 December 2022) (Ruling)
Neutral citation:
[2022] KEHC 17161 (KLR)
Republic of Kenya
Civil Suit E229 & E233 of 2021 (Consolidated)
CW Meoli, J
December 22, 2022
Between
Kinyanjui J. Harrison
Applicant
and
Paul Ilado
1st Respondent
Annette Wambulwa
2nd Respondent
Radio Africa Ltd
3rd Respondent
Tabbyrose Wanja Wamwitha
4th Respondent
As consolidated with
Civil Suit E233 of 2021
Between
Kinyanjui J. Harrison
Applicant
and
Chris Oyuga
1st Respondent
Bernice Mbugua
2nd Respondent
Mediamax Network Ltd
3rd Respondent
Tabbyrose Wanja Wamwitha
4th Respondent
Ruling
1.The events leading to the consolidation of the afore-captioned matters is as follows. Kinyanjui J Harrison (hereafter the Applicant) filed a suit being Nairobi High Court Civil Suit No E229 of 2021 via a plaint dated September 22, 2021 against Paul Ilado, Annette Wambulwa, Radio Africa Ltd and Tabbyrose Wanja Wamwitha (hereafter the 1st, 2nd, 3rd and 4th Respondent/Respondents). The plaint was accompanied by an amended motion dated September 23, 2021 seeking inter alia that pending the hearing and determination of the suit the court be pleased to issue interim injunctive order restraining the Respondents by themselves their servants and or agents, their ancillary media or social media outlets connected with the Respondents or otherwise howsoever from publishing in print or electronic form or uttering any defamatory statements against and concerning the Applicant or to maintain online and to forthwith remove the article at www.the-star.co.ke/news/2021-09-21-city-lawyers-lover-seeks-exhumation-of-childs-body-cities-foul-play/, and at https://www.the-star.co.ke/news/2021-09-21-lawyers-ex-partner-seeks-exhumation-of-her-baby/ and or further disseminating or causing to be disseminated in print or electronic form on any platform or social media or on the 4th Respondent’s Facebook page by the handle 'Wanja Nyarari' or otherwise howsoever the said or any defamatory material of or concerning the Applicant.
2.The grounds on the face of the motion are amplified in the supporting affidavit sworn by the Applicant who describes himself an experienced legal practitioner licensed to practice by the Law Society of Kenya and who has undertaken many cases including some that have gained national prominence and were reported as landmark decisions in the Kenyan jurisprudence. Thus, he has contributed positively to the growth of jurisprudence in Kenya and especially in public interest litigation that is beneficial to the general public and has therefore become known across the country. That in addition he has participated in discussions on national television at prime times at various stations regarding topics of national interest and of law. Hence, a substantial number of viewers of national television readily identify and know him.
3.He deposes that on September 21, 2021 he was shocked and stunned to note that the 2nd Respondent herein using the 3rd Respondent’s online platform www.the-star.co.ke/news/2021-09-21-city-lawyers-lover-seeks-exhumation-of-childs-body-cities-foul-play/ and published by the 1st Respondent had falsely and maliciously uttered false and defamatory statements of and concerning him in an article titled 'Mother of city lawyers child seeks body exhumation'. That the said defamatory statement in the article made several false and defamatory insinuations against him that include 'mother of city lawyer Harrison Kinyanjui’s deceased daughter has moved to court seeking to exhume the remains, arguing there was foul play in her death' which false allegation is capable of being construed and understood in its ordinary meaning, to mean that, he was guilty of foul play in the death of his deceased daughter, and purported involvement in rituals of a diabolical nature.
4.The deponent further states that the allegation is false and untrue as the results of a postmortem conducted openly, transparently in respect of the deceased child were furnished to the 4th Respondent; whereas the article in question imputes that he conspired with the relevant medical officer responsible for conducting the post mortem on his deceased infant at MP Shah Hospital, to commit criminal acts under the Public Health Act & Health Act in a bid to cover up the actual or true cause of death. Which imputation is not true and is clearly designed to taint his image in the mind of the general public and those who know him as a legal practitioner.
5.He goes on to depose that the 2nd Respondent had further alleged of him that; 'In an application filed at the Commercial Court, Tabby Wamwitha said Kinyanjui is a free mason. The applicant herein believes that Harrison Kinyanjui practices and participates in harmful religious practices known as free mason,' read court documents'. The deponent asserts that the application referred to in the said publication did not in fact mention that he was a ‘free mason’ whereas the natural meaning and imputation of the aforementioned words authored by the 2nd Respondent, approved by the 1st Respondent and published by the 3rd Respondent at the behest of the 4th Respondent was that he is involved in religious practices that are harmful to society and to his family by sacrificing his own daughter pursuant to allegiance to the free masonry, which is false.
6.That the 4th Respondent habitually makes malicious and false statements of and against him especially on her social media Facebook page under the handle 'Wanja Nyarari' and that the impugned publication at the behest of the 4th Respondent is to discredit and manifestly points to the malicious intention to defame and grossly injure his reputation following the breakup of a social relationship with 4th Respondent over three years ago. He asserts that Article 33(2)(d)(i) of the Constitution forbids the vilification of persons via publication of court proceedings and that the 1st, 2nd and 3rd Respondent are openly abusing media freedom which is limited in terms specified, thus entitling the court to grant him protection of law pursuant to Article 27(1) of the Constitution of Kenya.
7.That the unequivocal proof of the 1st, 2nd & 3rd Respondents’ malice and ill will against him is the fact that the defamatory article was repeated and republished online on the same date of September 21, 2021 under the heading 'BITTER FALLOUT' 'lawyer’s ex-partner seeks exhumation of her baby' she argues that there was foul play in her death’ by Annette Wambulwa Court Reporter News' and prominently also on the front page of the hard copy of the Star Newspaper titled 'Foul Play claim woman seeks exhumation of her daughter'. That the hard copy publication was in an exclusive of the 3rd Respondent’ star newspaper of September 22, 2021 , which is indicative of the Respondents express malice. That he sent to the 2nd Respondent’s WhatsApp number a demand for retraction of the contents which demand was ignored.
8.That the foregoing incessant and expressly defamatory statements made by the Respondents despite his plea to have them cease and desist have the effect of continually and irreparably harming the Applicant’s professional reputation, social standing, and character, thus necessitating the intervention of this court by the instant motion. He asserts that on account of the Respondents’ continued actions he has fielded numerous inquiries from friends, relatives and clients who express shock at the publications, causing him mental anguish, embarrassment pain and suffering. In conclusion he deposes that 3rd Respondents newspaper enjoys national circulation and international readership and therefore the story would attract non-curious readers as such it is in the interest of justice the prayer sought in the motion is allowed as prayed.
9.The Applicant also filed a further suit being Nairobi High Court Civil Suit No E233 of 2021 vide a plaint dated September 23, 2021. The suit name as defendants, the 4th Respondent and Chris Oyuga, Bernice Mbugua, Mediamax Network Ltd (hereafter the 5th, 6th & 7th Respondent/Respondents) . Similarly, the plaint was accompanied by a motion under certificate of urgency . The motion seeks inter alia that pending the hearing and determination of this suit the court be pleased to issue interim injunctive order restraining the Respondents by themselves their servants and or agents, their ancillary media or social media outlets connected with the Respondents or otherwise howsoever from publishing in print or electronic form or uttering any defamatory statements against and concerning the Applicant or to maintain online and to forthwith remove the article at http://www.pd.co.ke/news/city-lawyer-harrison-kinyanjui-lover-wants-girl-body-exhumed-95765/ and or further disseminating or causing to be disseminated in print or electronic form on any platform or social media or on the 4th Respondent’s Facebook page by the handle 'Wanja Nyarari' or otherwise howsoever the said or any defamatory material of or concerning the Applicant.
10.The grounds on the face of the motion are similarly amplified in the supporting affidavit sworn by the Applicant whose contents are more or less in the same vein as the depositions in the affidavit sworn in Nairobi High Court Civil Suit No E229 of 2021. The Applicant however specifically swears with respect to the 6th Respondent that the said Respondent had, using the 7th Respondent’s online platform at http://www.the-people daily.co.ke/news/2021-09-21-city-lawyer-lover-seeks-exhumation-ofchils-body-cities-foul-play/ with the approval of the 5th Respondent falsely and maliciously published, uttered false and defamatory statements concerning the Applicant.
11.That the 6th Respondent’s article maintained online at http://www.pd.co.ke/news/city-lawyer-harrison-kinyanjui-lover-wants-girl-body-exhumed-95765/ is false and malicious. Further that the 5th, 6th and 7th Respondent repeated the publication of the said article on page 7 of the hard copy of the People Daily Newspaper of September 22, 2021 under the title 'City lawyer Harrison Kinyanjui’s lover wants girl body exhumed '. He complained that actions of the 4th, 5th, 6th and 7th Respondents had resulted in the Applicant receiving numerous calls and messages from shocked friends, relatives and clients and had caused him mental anguish, embarrassment pain and suffering. In conclusion he deposes that 7th Respondent’s newspaper enjoys national circulation and international readership and therefore the story would attract non-curious readers and that despite a demand to retract and withdraw the defamatory material complained of , no response has been forthcoming. Hence, it was in the interest of justice the prayers sought in the motion is allowed as prayed.
12.The suits were consolidated on October 12, 2021 and Nairobi High Court Civil Suit No E229 of 2021 was appointed as the lead file . The Respondents in Nairobi High Court Civil Suit No E233 of 2021 being Chris Oyuga, Bernice Mbugua, Mediamax Network Ltd were designated as 5th, 6th & 7th Respondent in the consolidated suits.
13.The 1st, 2nd & 3rd Respondent oppose the Applicant’s amended motion through a replying affidavit dated November 10, 2021 sworn by the 1st Respondent who describes himself as Head of Content at the 3rd Respondent, competent and duly authorized to swear on behalf of the 2nd and 3rd Respondent. He denies the averments in supporting affidavit and deposes that the articles published on September 21, 2021 and September 22, 2021 are not defamatory. The deponent asserts that the publications were true in substance and in fact, made in good faith and without malice on account of a matter of immense public interest; and that the publications were made on a privileged occasion. He therefore asserted that the Applicant is not entitled to the orders sought in the motion and the urged the court to dismiss it with costs.
14.The 4th Respondent opposed the amended motion through her replying affidavit dated October 8, 2021. She stated that there are ongoing court proceedings between the Applicant and herself before the Milimani Commercial Court concerning the exhumation of her deceased daughter; that the said proceedings are open to scrutiny from anyone whether a party to the suit or not; that neither the Applicant nor MP Shah Hospital furnished her with a copy of the autopsy report regarding her late daughter; that the Applicant has constantly forbidden her on threat of death from disclosing that he is a dedicated member of a cult by the name 'Free mason'; that the Applicant used to voluntarily narrate to her his shrine rituals in relation to the 'Free mason' cult, and how he had become estranged from his mother for having introduced him to a cult.
15.She goes on to depose that what was published by the Respondents is true in substance and in lawful exercise of the freedom of expression and to information pursuant to Article 33, 34 and 35 of the Constitution. That the amended motion offends public interest and policy which favors free speech as an integral aspect of democracy and should only be limited in exceptional circumstances. She further asserts that on account of having lived with the Applicant for about five years during which they sired two children, she knows the Applicant well enough to confirm and affirm to the best of her knowledge and understanding that what was published was a fair comment. She views the amended motion as frivolous, scandalous, vexatious and a waste of the court’s time and asserts that it ought to be struck out.
16.The 5th, 6th & 7th Respondent oppose the Applicant’s motion in Nairobi High Court Civil Suit No E233 of 2021 vide the replying affidavit sworn by the 6th Respondent dated November 22, 2021. To the effect that the deponent is a journalist by profession in the employment of the 7th Respondent and well versed with facts in issue and is duly authorized by the board of directors of 7th Respondent to swear the affidavit on behalf of the 5th & 7th Respondent. She denies the averments in the supporting affidavit and defends the publication as made under a sense of duty, without malice towards the Applicant; that the same comprise fair comment made in good faith on account of public interest , and on a privileged occasion on account of the court proceedings between the Applicant and 4th Respondent before the Milimani Commercial court.
17.In conclusion she denies that the 5th & 7th Respondent defamed the Applicant as alleged and that the orders sought are unjustified and would amount to barring the 7th Respondent from its duty to comment on a matters affecting the society . She seeks that the motion be dismissed with costs.
18.By way of rejoinder, the Applicant filed supplementary affidavits dated November 2, 2021 and November 22, 2021 in response to the 4th Respondent’s affidavit and 1st, 2nd & 3rd Respondents affidavit.
19.He deposes therein that 4th Respondent has been extremely malicious against him following his termination of an intermittent social relationship with her and has vengefully embarked on an attempt to tarnish his name in order to bring his legal practice to ruin. He points out that the said Respondent has not denied certain averments in his supporting affidavit and disputed allegations made against him in the said Respondent’s affidavit; that the court proceeding between him and the 4th Respondent are not open to all and sundry as no perusal fees or request that has been demonstrated by the 4th Respondent ; and that the judiciary does not allow non-litigants to access court proceedings.
20.He asserts further that the Respondents’ reporting of the court proceedings of the dispute between him and the 4th Respondent before the commercial court in the defamatory publication was inaccurate, as the 4th Respondent’s pleadings therein did not contain a statement under oath that he was a 'Free Mason' and yet those proceedings were the alleged basis of the impugned defamatory publications; that he has never threatened to kill the 4th Respondent which threat would constitute a crime which the 4th Respondent has never reported to police for action; he denies narrating to the 4th Respondent any alleged shrine rituals in relation to the 'Free Mason' cult or that his mother introduced him to any cult as alleged by the 4th Respondent asserting that that he is a born again Christian; that he was an avid reader and has in his possession a wide variety of books by dint of his profession for purposes of expanding his knowledge and that possession of certain literature does not connote adherence to the subject matter thereof.
21.He states that based on the intermittent nature of his relationship with the 4th Respondent the said Respondent hardly knows him. Further that the defence of fair comment and justification are not available to the 4th Respondent having failed to tender any evidence of the truthfulness of the defamatory allegations. He goes on to assert that despite the advocate on record for the 4th Respondent giving an undertaking before this court, the 4th Respondent has continued to publish defamatory material against him and it is in the interest of justice that the order sought be issued to restrain the 4th Respondent.
22.In his second supplementary affidavit the Applicant takes issue with the 1st, 2nd & 3rd Respondents’ response on grounds that the entire affidavit constitutes bare denials of the claim and does not address the specific depositions in his affidavit in support of the motion; that no sworn evidence by the 4th Respondent was tendered in the dispute before the commercial court that could be cited, quoted or otherwise published by the said Respondents in the name of public interest; that the deponent of the affidavit did not demonstrate and or prove the source of their alleged defamatory statements; and that said publications are expressly malicious and devoid of public interest.
23.The motions were canvassed by way of written submissions. First, counsel for the Applicant reiterated the contents of the Applicant’s affidavit. Asserting that the impugned publications evidently refer to the Applicant, the same are untrue and without any legal basis. He cited rights enshrined in Articles 2(6), 27, 28, 32(2)(d)(i) & 34(1) of the Constitution of Kenya and Article 17 of the International Covenant on Civil and Political Rights (ICCPR) and the treatise Gatley on Libel and Slander, 12th Edition, Para. 25.2 to submit that the Respondents do not enjoy absolute rights allowing them to publish defamatory material injurious of the Applicant’s reputation and that threshold for the grant of interlocutory injunctive orders has been met in this case.
24.It was asserted that the Respondents failed to report the dispute between the Applicant and 4th Respondent pending before the commercial court accurately, objectively and truthfully and the sole motivation behind the Respondents’ offensive publication was to malign and defame the Applicant by lowering his estimation among right thinking member of the society. That there can be no public interest in the dissemination of defamatory material which also infringed upon the Applicant’s right to dignity. Conduct that is both irresponsible and dishonest.
25.Addressing the court reliefs sought, counsel relied on Halsbury Laws of England 4th Edition, Volume 28 at Para 42. He cited several the decisions including Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] eKLR, Raila Odinga & 5 Others v IEBC & 4 Others [2013] eKLR, Megascope Healthcare Kenya Limited v Nation Media Group Limited & 4 Others [2021] eKLR, Micah Cheserem v Immediate Media Services & 4 Others [2000] 2 EA 371, West Kenya Sugar Company Limited v Moses Malulu Injendi & Another [2021] eKLR, and Paul Mwaniki Gachoka & Another v Nation Media Group Limited & Another [2019] eKLR to argue that the Respondents have failed to tender justification and or authenticate the source of their defamatory statements and to demonstrate the prejudice or harm they stand to suffer if the injunctive orders sought by the Plaintiff are granted.
26.It was further submitted that 4th Respondent’s publications were driven by malice as evidenced by her failure to tender reasonable justification. Citing the case of J P Machira t/a Machira & Co Advocates v Wangethi Mwangi & Another [2017] eKLR, Abno Softwares International Limited & Another v Hermandra Singh & Another [2020] eKLR and Hon Uhuru Muigai Kenyatta v Baraza Limted [2011] eKLR counsel reiterated the Applicant’s status as a legal practitioner urging that it is imperative to preserve his reputation pending the trial. Regarding the defence accorded by Section 6 & 7 of the Defamation Act, he asserted that the same was not available to the Respondents as the defence of privilege only applies where the report in question is strictly confined to actual court proceedings and must contain no defamatory observation or comments. It was further contended the defence of justification by law requires the Respondents to establish the true facts of such statements they publish.
27.Concerning the balance of convenience, he called to aid the decision in Paul Gitonga Wanjau v Gathuthis Tea Factory Company Ltd [2016] eKLR and Samuel Ndungu Mukunya v Nation Media Group Limited & Another [2015] eKLR to contend that the Applicant stands to suffer more harm to his reputation and standing as a legal practitioner if the injunctions sought are not granted and that the defence of fair comment does not cover misstatement of facts. Concluding, counsel cited the case of Safaricom Limited v Porting Access Kenya Limited & Another [2011] eKLR to assert that it is apparent that the Respondents intend to repeat or re-publish the defamatory statements , which action would constitute a fresh cause of action with each republication and therefore the Applicant is entitled under Article 27 (1) of the Constitution to the protection of law through the orders sought.
28.Counsel for the 1st, 2nd & 3rd Respondent anchored his submissions on the decision in Michah Cheserem v Immediate Media Services & 4 Others [2000] eKLR and Gatley on Libel and Slander, 12th Edition to argue that the words published in the impugned articles do not qualify as defamatory being verbatim reports of the ongoing suit between the Applicant and the 4th Respondent before the commercial court. It was further submitted that the defences of justification and privilege were applicable in the instant matter and that the Applicant has not made out a case for the issuance of restraining orders against the 3rd Respondent.
29.He cited the English case of Fraser v Evans (1969) 1 ALL ER 8 and Star Publication Limited & Another v Ahmednasir Abdullahi & 5 Others [2015] eKLR to argue that the court should not grant an injunction where the defence of justification and fair comment are taken. Counsel further cited the decision in Vimal Kumar Bhinji Depar Shah v Stephen Jennings & 5 Others [2016] eKLR concerning the threshold required for issuance of a mandatory injunction as sought and that such an order would be tantamount to determining the dispute before trial. He urged the court to dismiss the amended motion.
30.Counsel for the 4th Respondent opened his submissions by asserting that a claimant in a defamation case must prove that the words were spoken or written by the offending party and that the words spoken refer to the claimant, are false and that the claimant has thereby suffered injury to his reputation. It was contended that the articles published were neither calculated to injure, or ridicule the Applicant nor made without justification. While placing reliance on Nation Media Group v Jakoyo Midiwo (2018) eKLR and Wycliffe A Swanya v Toyota East Africa Ltd & Another [2009] eKLR counsel submitted that the Applicant has not demonstrated malice and asserted that the 4th Respondent was not involved in the publication of the articles the Applicant alleges to have defamed him. Moreover, that he has failed to prove how the words published have lowered his reputation in the estimation of right-minded persons. The case of JP Machira (supra) was cited in support of the latter submission.
31.Concerning whether the Applicant in entitled to the orders sought counsel relied on Giella v Cassman Brown Co Ltd (1973) EA 358, Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR, Ibrahim Mukhatar Abasheikh v Royal Media Services & Another [2020] eKLR, Kenya Breweries Ltd v Washington Okeyo [2002] eKLR and Nation Media Group & 2 Others v John Harun Mwau [2014] eKLR to contend that Applicant has not established the three requisite conditions for the grant of an interlocutory injunction. Further that the publication was fair, accurate , not actuated by malice but by an intention of informing the public on a matter of general interest to them. Hence the orders sought are untenable.
32.Counsel for the 5th, 6th & 7th Respondent on his part while calling to aid several cases including Nguruman Limited v Jan Bonde Nielsen & 2 Others (supra), Michah Cheserem v Immediate Media Services & 4 Others (supra), Kenya Commercial Finance Co. Ltd v Afraha Education Society [2002] 1 EA 86 (CAK), and Gilgil Hills Academy Ltd v The Standard Ltd [2009] Ltd argued that Applicant has not demonstrated to prima facie standard that he was defamed and that if the publication were to be continued it would result in immediate and irreparable injury. That the Applicant has yet to establish that the words complained of are untrue and that no defence is available to the the Respondents. Further that the Applicant has failed to provide evidence of irreparable damage through the risk of the impugned article being republished or of the Respondent publishing statements defamatory of him.
33.Counsel cited Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] eKLR and Francis Atwoli & 5 Others v Kazungu Kambi & 3 Others [2015] eKLR to contend that damages would be adequate compensation for any injury suffered by the Applicant. He pointed out that the orders sought are too wide and imprecise as the words or statements that are classified as defamatory have not been stated. It was further submitted that given the public interest in having a free and unencumbered media, the orders sought would result in unlawfully muzzling the Respondents. Therefore, the court was urged to dismiss the motion with costs.
34.The Court has considered the affidavit evidence on record and the parties’ respective submissions. The Court of Appeal had this to say in Musikari Kombo v Royal Media Services Limited (2018) eKLR :
35.Actions founded on the tort of defamation bring out the conflict between private and public interest. Article 33(1) of the Constitution guarantees every person’s right to freedom of expression including the freedom to seek, receive or impart information or ideas but sub-Article (3) states that 'In the exercise of the right to freedom of expression, every person shall respect the rights and reputation of others'. Article 34 guarantees the freedom of the media but the exercise thereof is subject to the provisions of Article 33(2). Articles 25 and 31 protect the inherent dignity of every person and the right to privacy. These rights are reinforced by the provisions of the Defamation Act.
36.In contemplating these competing rights Lord Denning MR stated in Fraser v Evans & Others [1969]1 ALLER 8
37.In Halsbury’s Laws of England 4th Edition Vol 28 paragraph 10- a defamatory statement is defined as follows:
38.Additionally, Gatley on Libel and Slander 6th Edn states that:
39.In Selina Patani & Another vs Dhiranji V Patani (2019) eKLR’s the Court of Appeal stated that the law of defamation is concerned with the protection of reputation of persons, that is, the estimation in which such persons are held by others. The Court restated the ingredients of defamation as follows:i.The statement must be defamatoryii.The statement must refer to the plaintiffiii.The statement must be published by the defendantiv.The statement must be false.'
40.The undisputed background to this action as gleaned from material on record is as follows. The Applicant is an advocate of the High Court of Kenya who has had a fairly visible career as a legal practitioner. The Applicant and the 4th Respondent were prior to 2017 involved in a romantic relationship out of which they sired two children, namely JH and RH. RH was born with the medical condition called Downs syndrome and developed other medical conditions. She died while receiving treatment at a Nairobi hospital on October 14, 2017, and was buried on land apparently belonging to the Applicant or his family.
41.Meanwhile the relationship between the Applicant had apparently become so strained that by 2021, the two had parted ways. In January 2021 the 4th Respondent filed a case in the Children’s Court at Nairobi, namely, Children Case No E 039 of 2021 against the Applicant. The parties were therein embroiled in a dispute over the custody of JH among other issues. Several orders had been made in the cause but while it was still pending, the 4th Respondent in July 2021 lodged yet another suit being Nairobi CM’s Miscellaneous Civil Application No 10041 of 2021 in which she named the Applicant, a hospital, and several public bodies as respondents.
42.Therein the 4th Respondent sought orders for the exhumation of the body of RH for purposes of an autopsy. The 4th Respondent claimed in the matter that she suspected foul play in the death of RH and made certain allegations against the Applicant including involvement in free masonry or the occult and an imputation that somehow these practices could have had a role in the death of RH. She claimed that she had never seen RH’s autopsy report and suggested collusion between the Applicant and the pathologist in covering up the real cause of RH’s death. These claims were also posted albeit in different form on the 4th Respondent’s Face Book page christened 'Wanja Nyarari’. The Applicant filed a lengthy affidavit in the miscellaneous cause, disputing the 4th Respondent’s claims and attached therein a copy of the autopsy report in respect of RH.
43.On September 21, 2021 the 1st,2nd and 3rd Respondents, and the 5th ,6th and 7th Respondents, respectively, twice published under different titles on their online platforms, a report in connection with the miscellaneous cause setting out in some detail the contents of the 4th Respondent’s application and affidavit. As expected, the report drew protestation from the Applicant. However, on the next day, the story was also prominently reported in the said Respondents’ hard copy newspaper. These developments prompted the filing of the two suits before the Court.
44.The principles governing the grant of an interlocutory injunction as enunciated in Giella v Cassman Brown & Co Ltd [1973] EA 358 are settled. Similarly, as to what constitutes a prima facie case, this is settled too since the decision in Mrao v First American Bank of Kenya Ltd & 2 Others CA No 39 of 2002; (2003] eKLR. Both decisions have been reaffirmed and applied by superior courts in countless subsequent decisions including the recent decisions cited in this case by the parties.The Court of Appeal in Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR restated the principles governing the grant of interlocutory injunctions as enunciated in Giella’s case and observed that the role of the Judge dealing with an application for interlocutory injunction is merely to consider whether the application has been brought within the said principles. The Court cautioned that such a court ought to exercise care not to determine with finality any issues arising.
45.The Court expressed itself as follows:
46.In addition, the Court stated that the three conditions apply separately as distinct and logical hurdles to be surmounted sequentially by the Applicant. That is to say, that the Applicant who establishes a prima facie case must further establish irreparable injury, being injury, for which damages recoverable could not be an adequate remedy. And that where the court is in doubt as to the adequacy of damages in compensating such injury, the court will consider the balance of convenience. Finally, where no prima facie case is established, the court need not investigate the question of irreparable loss or balance of convenience.
47.As to what constitutes a prima facie case, the Court of Appeal delivered itself as follows: -
48.In addition, this being a suit founded on defamation, the counsel contained in Micah Cheserem’s case is pertinent to the consideration of the instant motion. This is what Khamoni J (as he then was) stated in that case:
49.None of the Respondents herein dispute the publications attributed to them and which were similar in substance. The 4th Respondent by her affidavit in response appears to stand by claims she made against the Applicant in the miscellaneous cause and appears to defend the publications attributed to her co-Respondents. She does not dispute the words published on her Face Book page. However, she disputes having handed over any of the filings in the miscellaneous cause to her co- Respondents. No purpose would be served in replicating all the subject publications here. The gist of the reports published by the 1st to 3rd Respondents both online and in their hard copy newspaper between 21st and September 22, 2021, suffice to illustrate the near similar contents of the four publications by the 1st to 3rd Respondents and by the 5th to the 7th Respondents, respectively.
50.The first online publication by the 1st to 3rd Respondents read as follows:
51.A subsequent online version of the publication made on the same day under a different title read as follows:
52.The publications by the 5th to 7th Respondents repeat almost verbatim the foregoing content in their own publications. Ex facie, the publications indirectly impute that the Applicant was a suspect in the death of his own daughter RH which is supposedly related to the Applicant’s involvement in occultic or freemasonry practices. Further that in a bid to cover up the cause of the death, the Applicant arranged for a secret autopsy in collusion with a certain pathologist. Evidently some of the actions attributed to the persons adversely named in the article would amount to criminal conduct attracting penal sanctions.
53.The Applicant strongly refuted the imputations as false, presenting his own version of events and most importantly, a copy of the autopsy report in respect of HR. He also pointed out that the 4th Respondent had never reported to police her suspicions against the Applicant, for investigation. If eventually found to be false, and not covered by the various defences raised by the Respondents, the imputations made by the Respondents against the Applicant would comprise an egregious form of defamation depicting the Applicant, a lawyer as a law breaker involved in dubious spiritual activities.
54.By their defence statement and replying to affidavit the 1st to 3rd Respondents assert that the above publication is not defamatory, plead justification, good faith, and qualified privilege. For their part the 5th to 7th Respondents equally deny that their publications were borne of malice, plead good faith, fair comment, and assert that the same were made on a privileged occasion. For her part, the 4th Respondent appears to plead justification and qualified privilege in addition to denying that the publications attributed to her or her co-Respondents were defamatory.
55.The foregoing notwithstanding, none of the Respondents, except the 4th Respondent attempted to demonstrate the truthfulness of their assertions. For her part, the 4th Respondent reiterated her claims in the miscellaneous cause and also exhibited copies of material contained in so-called free masonry literature which she claimed the Applicant owned. Besides, she claimed that the Applicant had narrated to her during their relationship, the rituals he engaged in as a free mason to which he was allegedly introduced by his mother. The fact of reading or owning such literature could not surely be evidence that the Applicant was possibly the ritual killer of his own daughter as alleged in the publications in question.
56.In so saying the court is fully alive to the words of Lord Coleridge CJ in Bonnard and another V Perryman (1891 -4) ALLER 968, later quoted by Denning MR in Fraser v Evans & Others, to the effect that:
57.In the court’s view however, while the evidence of the respective parties will be fully tested at the trial, the duty lay even at this stage with the Respondents to furnish some sort of material tending to support the alleged truthfulness of their publications. In Uhuru Muigai Kenyatta V Baraza Leonard [2011] eKLR the Supreme Court stated:
58.The defence of justification and privilege may be displaced by evidence of malice. It was held in Adam v Ward (1917) AC 309:
59.Further in Shah v Uganda Argus (1972) EA 80 it was held that a defendant is only entitled to protection of the privilege if he uses the occasion in accordance with the purpose for which the occasion arose, but he will not avail himself of such protection if he uses the occasion for improper or indirect motive. Comparing the 1st, 2nd, 3rd 5th, 6th 7th Respondents’ initial report with the parties’ pleadings in the miscellaneous cause as exhibited herein, it appears that the portions adverse to the Applicant contained in the pleadings of the 4th Respondent got extensive exposure.
60.And even though the said Respondents included references to the Applicant’s response in the miscellaneous cause, the references barely set out the substantive depositions in the Applicant’s affidavit in the cause. And specifically, the asserted cause of the minor’s death as contained in the Applicant’s affidavit and annexed copy of the autopsy of RH showing the cause of death to be due to respiratory failure secondary to pneumonia.
61.This even though by the time of the subsequent reports, the Applicant had reached out to the Respondents to protest the initial publications, apparently to no avail. Selective or unbalanced reporting of court proceedings or pleadings of one party in a case can hardly pass for accurate reporting and may in fact negate asserted good faith by the reporter. Ditto for failure to seek comment from the affected party, which in extreme cases could lead to an inference of recklessness.
62.Equally, the circumstances in which a publication is made could lead to a suggestion of malice. There is no indication whatsoever that the 4th Respondent had made a report concerning her suspicions against the Applicant to investigative authorities to inquire into the circumstances of the death of RH Or threats allegedly made to her life by the Applicant if she ever revealed his involvement in the so-called free masonry cult. The Applicant and the 4th Respondent were at the material time embroiled in a child custody dispute following what appears to be an acrimonious parting of ways. Could it be, as the Applicant suggests, that the publications by the 4th Respondent were a consequence of these events?
63.In Phineas Nyagah v Gilbert Imanyara [2013] eKLR the court held that :
64.As stated in Dorcas Florence Kombo V Royal Media Services [2014] eKLR:
65.The court is wary of saying more concerning this matter at this stage. Suffice to say that the Applicant has demonstrated a prima facie case. Equally, the loss of the Applicant’s reputation as an advocate through repeated publication of the kind of allegations pleaded herein appears real. The assertions made by each party will be determined through evidence at the trial, but no amount of damages could possibly compensate the Applicant for such loss if it is eventually found that the allegations are false and defamatory. See the case of Brigadier Arthur Ndoj Owuor (supra).
66.Certainly, while the litigation between the Applicant and the 4th Respondent subsists, the likelihood that more 'dirty linen' may be aired appears real. Freedom of the media and other persons to expression and which the 4th Respondent has strongly espoused is not absolute and in proper cases, the court may intervene on behalf of deserving parties. The court having reviewed all the relevant matters feels assured that this is a proper case for granting interim orders to restrain the Respondents.
67.In the circumstances, the Court will grant both the prayers identified as number 3 as contained in the two amended motions dated September 23, 2021, in the following terms:Pending the determination of this suit, the Respondents are hereby restrained, by themselves, their agents, servants or howsoever from publishing, continuing to publish, or further publishing in print or electronic media or uttering defamatory statements concerning the Applicant, or further disseminating the articles cited in the prayers, on any platform or media.
68.Costs will be in the cause.
DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 22nd DAY OF DECEMBER 2022C.MEOLIJUDGEIn the presence of:For the Applicant: N/AFor the 1st to 3rd Respondents: N/AFor the 4th Respondent: Ms. Omuoyo h/b for Mr. OmariFor the 5th to 7th Respondents: Ms. Odeo h/b for Mrs. Ochieng