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Cheserem v Immediate Media Services & 4 others

High Court, at Nairobi April 18, 2000

Khamoni J

Civil Case No 398 of 2000

Injunction- interlocutory injunction – in defamation cases – applicable principles.

Defamation – remedies – injunctions – at interlocutory stage – whether available in the face of defences of justification & fair comment

The applicant’s cause of action arose from the publication by the 1^st defendant in its paper called "The Independent" Vol 1 No 6 of March 17, 2000 wherein the lead article was titled "Central Bank Boss in major sex scandal." The applicant was, at the material time, Governor of Central Bank.The article alleged that the applicant had used his position to entice married ladies to enter into illicit relationship with him and more particularly that such relationship had led to a breach of the marriage of a lady employed by Trust Bank whose husband allegedly employed by Barclays Bank of Kenya was compromised by payment of substantial sums through a settlement. At the end of the article, the respondents said “more to follow on the man entrusted to oversee Kenya’s financial sector". The applicant contended that the article was published falsely and maliciously. He argued that the injuries caused to him could not in any way be compensated in any form and that even if he succeeded in the suit, the respondent from the nature of their publication were unlikely to compensate the applicant in damages awarded by the Court or in any manner. He therefore beseeched the Court to grant an injunction to restrain the defendants and each of them whether by themselves or their servants or agents or otherwise howsoever from publishing, circulating or disseminating in any manner whatsoever the words concerning the plaintiff in the article published in the aforesaid issue of the magazine. The respondents opposed the application arguing that the applicant could be compensated through payment of damages and that no evidence had been adduced to prove that they were incapable of paying the damages that the Court may award. They denied that the article was a scathing, unwarranted and scandalous attack against the applicant’s personal character, integrity and moral standing. That the article was published without any intention to defame, without malice and asserted that any views expressed therein were based on fair comment.

The second respondent further pleaded that he had the right to freedom of speech and expression as guaranteed by the Constitution of Kenya and that such freedom could not be taken away from the press since the freedom was in the public interest for shaping up the society.

Held:

1. Although the conditions applicable in granting an injunction as set out in the case of Giella vs Cassman generally apply, in defamation cases, those conditions operate in special circumstances.

2. In defamation cases, the court’s jurisdiction to grant an injunction is exercised with the greatest caution so that an injunction is granted only in the clearest possible cases where the Court is satisfied that:

a) the words or matters complained of are libellious;

b) The words are so manifestly defamatory that any verdict to the contrary would be set aside as perverse.

3. Actions or cases of defamation bring out a conflict between private interest and public interest, and this is particularly so in a country with a Constitution that enshrines fundamental rights and freedoms of the individual, including the protection of the freedom of expression.

4. The rights, freedoms, principles and conditions established in section 79 (1) of the Constitution of Kenya should be enjoyed by every news media, the press, newspaper, their journalists and everybody in Kenya free from the drastic interference that may be caused by the granting of an interlocutory injunction, unless there is a substantial risk of grave injustice and the private interest in preventing publication that the applicant seeks to prevent outweighs the public interest.

5. The Court in refusing to grant the injunction that the plaintiff is asking for in defamation actions aims to protect a humane, responsible, truthful and trustworthy defendant – A defendant devoid of malice.

6. Once qualified privilege does exist, it remains in existence even if in the course of publishing the fair and accurate report on a matter of public interest a matter defamatory of the plaintiff is included.

7. The law with regard to the granting of a temporary or an interlocutory injunction in defamation cases comes to the protection of the defendant where he has filed a defence so that it can be seen whether or not he has pleaded a defence of justification or fair comment. Otherwise, the defendant should show by affidavit that he is going to plead the defence of justification or fair comment.

8. The right of a journalist to freedom of speech and expression as guaranteed by the Constitution of Kenya is not absolute.

9. It is not sufficient, and, it is dangerous and not good, for a journalist to disseminate information based solely on good faith. He should base the information on factual truth if he expects the law to protect him.

10. It is not correct to say that where public interest conflicts with private interest, the public interest shall prevail. The public interest – vs– private interest in defamation actions and the end result is not always the same. The result can be in favour of the public interest or in favour of the private interest.

Cases

1. Lotodo, Francis P v Star Publishers & another Civil Case No 883 of 1998

2. Giella v Cassman Brown & Co Ltd [1973] EA 358

3. Bonnard v Perryman (1891-4) All ER 965; [1891] 2 Ch D 269

4. Fraser v Evans & others [1969] 1 All ER 8; [1969] 1 QB 349; [1968] 3 WLR 1172

Texts

1. Rogers, W (Ed) Gatley on Libel & Slander London: Sweet & Maxwell 14th Edn pp 177, 178

2. Rogers, W (Ed) (1981) Gatley on Libel & Slander London: Sweet & Maxwell 8th Edn para 1574 p 641

3. Kuloba, R (Ed) (1992) Principles of Injunctions Oxford: Oxford University Press p 102

Statutes

1. Civil Procedure Rules (cap 21, Sub Leg) order XXXIX rule 2

2. Civil Procedure Act (cap 21) section 3A

3. Constitution of Kenya sections 70(a); 79(1)

4. Defamation Act (cap 36) section 7(1)(2)

Advocates

Mr Ougo for the Applicant

Mr Nyachoti for the Respondents

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