Declaring breach of the terms of interlocutory Injunctions with no material Evidence of the Breach is an Irregularity.

Vimalkumar Bhimji Depar Shah & anor v Stephen Jennings & 5others

Civil case No 300 of 2015

High Court of Kenya at Nairobi

R.E.Aburili J

August 10, 2016

Reported by Halonyere Andrew & Nowamani Sandrah

Civil practice and procedure – contempt of court – failure to comply with court order that service was not made in person –whether knowledge of existence of a court order was greater than personal service- whether the applicants’ application for contempt of court satisfied the standard required for committal.

Civil practice and procedure –contempt of court-standard of proof in contempt proceedings – whether standard of proof in contempt proceedings should be beyond reasonable doubt- whether the applicants’ application for contempt of court satisfied the standard required for committal – Civil Procedure Rules , order 5, rule 8 (1)

Tort Law-defamation-libel-action for defamation-element of defamation- whether the article published by the defendants concerning the plaintiff was false, reckless and malicious-whether the words in the said article in their natural and ordinary meaning were defamatory of the plaintiff’s reputation and professional standing.

Constitutional Law-fundamental rights and freedoms-right to freedom of expression and media- -limitation of rights- balancing of rights and fundamental freedoms- Whether in determining defamatory claims there was a need to balance the constitutional provisions on freedom of expression and media and the individual’s right to access information- Constitution of Kenya, 2010; articles 33, 34 and 35

Constitutional law-fundamental rights and freedoms- right to fair trial –claim for lack of material evidence-whether lack of material evidence of breach of interlocutory injunctions amounted to breach of a right to fair trial-Constitution of Kenya, 2010, article 50

Words and phrases-definition-meaning of “contempt of court”- Conduct that defies the authority or dignity of a court because such conduct interferes with the administration of justice, it is punishable usually by fine or imprisonment- Black’s Law Dictionary 9^th, edition

Words and phrases-definition-meaning of “notice”-a person has notice of a fact or condition if that person has actual knowledge of it; has received information about it; has reason to know about it; Knows about a related fact; is considered as having been able to ascertain it by checking an official filing or recording- Black’s Law Dictionary 9^th, edition

Brief facts

The matter was of twin applications argued separately and independently, with the first application seeking for injunctive orders in an alleged defamation of the plaintiffs by all the Defendants and the second application seeking to cite the 1^st, 2^nd and 6^th Respondents for contempt of court orders allegedly issued on August 31, 2016.

On September 1, 2015 court issued orders of injunction restraining the Defendants from publishing any defamatory words concerning the Applicant. The court also ordered for the removal, pulling down and deletion of the defamatory words from the Defendant’s internet sources, websites, blogs and other social media platforms. Notwithstanding the knowledge and service of the orders, the defendants continued to publish defamatory words.

The application for contempt was that the 1^st, 2^nd and 6^th defendants blatantly disregarded the mandatory order requiring them to pull off the subject content from their respective media sites. The order of September 10, 2015 was a prohibitive injunction restraining the Defendants from publishing any defamatory words of and concerning the plaintiff whereas the orders of September 1, 2015 were both prohibitive and mandatory injunction compelling the defendants to pull down all the defamatory words/tweets from the social media/websites; and also directed twitter and Google to assist in effecting the orders.

Issues

i. Whether the court orders were disobeyed by the 1^st, 2^nd and 6^th Defendants as alleged, thereby ridiculing and undermining the institution of the court

ii. Whether the defendants had knowledge of the impugned orders through service and brazenly disobeyed.

iii. Whether service of a judgment or order on the solicitor for the Minister was sufficient knowledge of the order on their part to found liability in contempt

iv. Whether the applicants’ application for contempt of court satisfied the standard required for committal.

v. Whether there were any acts or omissions by the 1^st, 2nd and 6^th defendants between the time of knowing of the existence of the order and service of the order and the time of filing the application for contempt, evidentially amounting to contempt of court order.

vi. Whether in determining defamatory claims there was a need to balance the constitutional provisions on freedom of expression and media and the individual’s right to access information.

Relevant provision of the law

Judicature Act

Section 5 

1. “The High Court and the Court of Appeal shall have the same power to punish for contempt of court as is for the time being possessed by the High Court of Justice in England, and that power shall extend to upholding the authority and dignity of subordinate courts.

 2. An order of the High Court made by way of punishment for contempt of court shall be appealable as if it were a conviction and sentence made in the exercise of the ordinary criminal jurisdiction of the High Court.”

Civil Procedure Act

Section 100

“ the court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceeding.”

The Civil Procedure (Amendment No. 2) Rules 2012 of England

(3) The Application notice must:

a) Set out in full the grounds on which the committal application is made and must identity separately and numerically each alleged out of contempt  including, if known the date of each of the alleged acts and

b) Supported by one or more affidavits containing all the evidence relied upon.

4) Subject to paragraph 5 the application notice and the evidence ion support must be served on the respondent.

5) The court may;

a) Dispense with service under paragraph (4) if it considers it just to do so (5) make an order in respect of service by an alternative method or at an alternative place.

Held

1. The rule of law required that orders of the court be obeyed in order to protect the dignity and authority of the Court process. It was for that reason that the application for contempt should in all instances be considered first before any other proceeding were taken. The rule of law obliged that court orders had be obeyed for  court orders were not made in vain  and if  for good  reason a party found it impossible to comply with court orders, then such party was expected to seek clarification from the Court. Unless vacated, set aside or varied, court orders had to be obeyed.

2. The law governing contempt of court proceedings was the English Law applicable in England at the time the alleged contempt was committed. The applicable Law in England was 2012 Civil Procedure   (Amendment) No. (2) Rules which came into force on October 1, 2012 with part 81 thereof effectively replacing Order 52 of the Rules of the Supreme Court of England that previously dealt with the procedure for seeking contempt of court orders in the High Court of Justice in England.

3. Under Rule 81.4, the application for contempt was made in the same proceedings in which the order allegedly violated was made. The application had to set out fully the grounds upon which the committal application was made, identify separately and numerically each of the alleged acts of contempt and be supported by an affidavit (s) containing all the evidence relied upon. The said application and affidavit had to be served personally on the Respondent unless the court dispensed with such service if it considered it just to do so or authorized alternative mode of service.

4. Under Order 40 Rule 3 of the Civil Procedure Rules, the court granting an injunction was permitted to order the property of a person guilty of disobedience or breach of a court order to be attached and for the persons to be detained in prison for a term not exceeding 6 months. The purpose of the penal consequences for breach of an injunction granted was to ensure compliance with or enforcement of an injunction granted under the provisions of Order 40 of the Civil Procedure Rules.

5. The law did not envisage a situation where the court orders were made in vain, hence, the provisions for contempt proceedings to penalize the contemnors. However, before the Court could find one to be in contempt of court orders or to have breached the terms of an injunction, the person applying or seeking for citation orders had to meet all the conditions necessary for an order of committal for contempt, which conditions were now well settled.

6. It was trite law that where committal for breach of an injunction was sought, the Applicant had to clearly specify that which the Respondent was alleged to have done or not done and what was a breach of the terms of the injunction. The application had to state precisely what the alleged contemnor had done or omitted to do which constituted a violation of the injunction order. Any slight ambiguity in the order would lead to watering down the standard of proof, which was a criminal standard not being achieved. The order allegedly disobeyed had to be in existence.  It had to be clear in its terms, it had to have been served upon the Respondent or the Respondent had to have actual or constructive knowledge of the order together with an endorsed penal notice warning of the consequences of disobedience.

7. The error of stating that there was an order of August 31, 2015 instead of September 1, 2015 was by way of a statement made by the applicants in their application. It was not an error on the face of the order as was issued by the court, which error would be capable of rendering a valid court order a nullity. The error complained of would not, in any way render the orders of September 1, 2015 ambiguous or vague.

8. It was a clerical or scrivener’s error, caused by a minor mistake or inadvertence and not one that occurred from judicial reasoning or determination. The error was not on the order. It was a mistake in the pleaded and deposed facts, and which the Applicant’s counsel acknowledged and sought to invoke article 159 of the Constitution of Kenya, 2010 to cure. It was not made purposely and therefore the same could be amended with leave of court or on the court’s own motion since the error did not vitiate the proceedings, and neither would its correction occasion any real or perceived prejudice to the Respondents. The error was a technicality which could not be sacrificed at the altar of substantive justice.

9. When the trial court issued the interim orders No. 1-5 of the Notice of Motion dated August 31, 2015, it was clear that those orders were to last up to  September 10, 2015 when the notice of motion would be heard interparties. Accordingly, those orders lasted only up September 10, 2015 when the parties’ advocates appeared before court and argued the notice of motion upon which the Court issued fresh orders specifically prohibiting the defendants from publishing any defamatory words of and concerning the plaintiffs until the hearing and determination of the application dated August 31, 2015. The interim prohibitory injunction was thus renewed, but the mandatory injunction which had been granted on September 1, 2015 lapsed on that date of September 10, 2015 as it was not renewed.

 10. If there was any breach of the orders of September1, 2015 the breach should have occurred between the dates when those orders were served upon the Respondents or when the Respondents came to know of the injunctive orders of September 10, 2015. Similarly, if there was any breach of the prohibitory injunction granted on September 10, 2015 the violation had to have occurred between September 1, 2015 when the order was first made by the trial court and September 29, 2015 when the application for contempt was lodged.

11. From the description of the manner in which service of the order of September 1, 2015 was served upon the 1^st -6^th Respondents, and the unrebutted evidence on record, the Defendants were aware of the court order of September 1, 2015 and or were personally served in the case of the 6^th defendant. The law has since changed. Although personal service was the best mode of notifying the party of a court order, but knowledge of a court order like in the instant case was sufficient.

12. The court granted leave for substituted service which was the alternative to personal service, of the order of September 1, 2015 by way of advertisement in the two dailies – Daily Nation and Business Daily. The advertisements were carried out on September 3 and 4, 2015. From the above analysis, the orders were served upon the defendants and they had full knowledge of the said orders through their advocates whom they instructed to appear on September 10, 2015 when the second order was made by the court.

13. There was more than sufficient evidence that indeed all the defendants accessed the order as advertised. They expeditiously entered appearances through their respective advocates before the date scheduled for interparties hearing of the main application for injunction and fortified the position that the 6^th Respondent was personally served.

14. The Court order of September 1, 2015 was clear on what matters were to be pulled down, erased or removed from the various websites, blogs and or other electronic and social or digital media as shown by the various video and other digital links. Nonetheless, there had to be evidence beyond the balance of probabilities that either the defendants/alleged contemnors owned or operated those sites/websites/blogs or media platforms cited and that they brazenly ignored or failed to adhere to the court order to erase or remove them. The burden of proof entirely lay with he who alleged, whether the application for contempt of court order was defended by the alleged contemnors or not.

15. Any defect in the order subject of the contempt proceedings was likely to be interpreted in favour of the Respondent’s/alleged contemnors in view of the higher standard of proof required on contempt proceedings. The order was clear, it directed Google and twitter to assist in effecting the aforesaid orders. The fact of enlisting Google and twitter ought to have been in recognition of the difficult task of removing/erasing/pulling down the online publications by the alleged contemnors. However, there was no evidence that Google and twitter who were directed to assist in the implementation of the said orders were served with the Court order made on September 1, 2015 since they were not parties to the suit and neither were they government law enforcement agencies.

16. What was defamatory depended on the circumstances of each case. Nonetheless, a defamatory publication or statement was one which was published of and concerned a plaintiff and which tended to lower the plaintiff’s reputation or character in the estimation of right thinking members of the society generally and which caused them to shun or avoid him. To hold that there was breach of the Court injunction by reposting on its website the speech, question and answer session and the one on one session was to hear only one party’s evidence without giving the adverse party who was an active participant in the proceedings an opportunity to challenge that evidence.

17. It was incumbent upon the Applicants to invoke the provisions of sections 106 A and 106 I of the Evidence Act on the production of electronic -digital evidence to facilitate the opening /access by the court to the respective CDs and websites, to establish whether the alleged defamatory publications were in situ or posted after the injunction in violation of the prohibitory orders.

18. To access the original tweets one had to go digital. There was no certificate of extraction annexed and neither did the plaintiffs seek to have that evidence adduced in the legally acceptable mode as stipulated in sections 106A and 106 I of the Evidence Act which precluded the court from presuming the digital or electronic records to be authentic.

19. The Court issued both mandatory and prohibitory interlocutory injunctions against the Respondents who were also the alleged contemnors in the application. The Court was empowered to cite and punish any person who was found to have blatantly and brazenly breached an injunction or order of the court. The applicants did not satisfy the standard required to prove contempt of court. The nature of the alleged publications was in electronic/digital forms which required that the transcriptions or extractions be accompanied by certificates authenticating the information printed out and the video recordings be viewed by the court in the presence of all the parties and or their legal counsels in order to avoid subjective conclusions being made by the Court.

20. There was no sufficient evidence of any contempt of court or breach of injunction. it would be a travesty of justice for the Court, being an umpire, to retire and write a judgment based on evidence that was not adduced in an acceptable manner, condemning the alleged contemnors for contempt of court, whose effect would deprive them of their liberty or property, yet the evidence adduced in support of the contempt proceedings was wanting in sufficiency to the standard required,

21. The law of contempt constituted an interference with free speech which was guaranteed by the Constitution. The Court had to tread cautiously to see that the rules of contempt did not inhibit that freedom of speech more than was reasonably necessarily to ensure that the administration of justice was not interfered with. That was not to say that court orders should be disobeyed or courts scandalized.

22. The fact that the alleged defamatory publications which were allegedly repeated by the contemnors, even after injunctive orders were issued were not made in newspaper publications. That meant the court had to respect the rule of law and only accept evidence adduced in the manner permitted in law and not through some short cuts for that would undermine the fair administration of justice. In contempt of court proceedings, parties had nothing else remaining. It was a complete proceeding that determined the guilt or innocence of an alleged contemnor. The outcome of contempt proceedings was a judgment and therefore a court of law ought not to render a judgment condemning a person without sufficient evidence being adduced as to the guilt of that person.

23. To find that there was breach of the terms of interlocutory injunctions granted on September 1, 2015 and September 10, 2015 respectively in the absence of material evidence of breach thereof would be to irregularly disentitle the alleged contemnors a fair trial which was a right guaranteed under article 50(1) of the Constitution of Kenya, 2010 and which right could not be limited.

Application dismissed and the Respondents acquitted. Each party to bear their own costs.

Cases

East Africa

1.    African Management Communication International Limited v Joseph Mathenge Mugo & another Civil Case No 242 of 2013 – (Followed)

2.    Basil Criticos v Attorney General & 8 others Petition No 258 of 2011- (Approved)

3.    Constitutional Petition No 7 of 2014 – (Affirmed)

4.    Gachege, Christine Wangari v Elizabeth Wanjiru Evans & 11 others Civil Application No 233 of 2007 (UR 144/2007) – (Relied Upon)

5.    Mate, Justus Kariuki & another v Martin Nyaga Wambora & another Civil Appeal 24 of 2014 – (Approved)

6.    Mate, Justus Kariuki & another V Martin Nyaga Wambora & another Civil Appeal No 24 of 2014 – (Relied Upon)

7.    Mohamed v Bakari & 2 others [2005] 2 KLR – (Approved)

8.    Mugambi, John Kenneth v City Council of Nairobi Civil Case No 622 of 2008 – (Relied Upon)

9.    Mwaniki Silas Ngari v John S Akama & another Enivroment & Labour Relation Cause No 1380 of 2013 – (Relied Upon)

10. Nyaga v Clerk to Embu County Council & 2 others  CA [2007] 2 KLR 10 – (Followed)

11. Nyamogo & Nyamogo v Kenya Posts & Telecommunications case [1990-1994] EA 464 – (Relied Upon)

12. Refrigerator & Kitchen Utensils Ltd v Gulabchard Popat lal Shah & others Civil Appeal No 39 of 1990 – (Followed)

13. Shimmers Plaza Ltd v National Bank of Kenya Limited Civil Appeal No 33 of 2012 – (Approved)

14. Teachers Service Commission v Kenya National Union of Teachers & 2 others Petition No 72 of 2015 – (Followed)

15. Wildlife Lodges Ltd v County Council of Nairobi & another [2005] EA 344 – (Followed)

United Kingdom

1.    Attorney General v Times Newspaper Ltd [1974] AC 273; [1973] 3 All ER 54; [1973] 3 WLR 298 – (Followed)

2.    Avery v Andrews (1882) 51LJ Ch 414) – (Mentioned)

3.    Chuck v Cremer   (1846) Cooper temp Cottenham 205 – (Followed)

4.    Hadkinson v Hadkinson [1952] 2 AII ER 567 – (Approved)

5.    Linnet v Coles [1986] 3 AII ER 652 – (Followed)

6.    Rex v Almon [1965] Wilmot’s Reports 241, 97 ER 94 – (Followed)

United States of America

1. Johnson v Grant (1923) SC 789 at 790 – (Followed)

2. United States v Revie 834 F2d 1198, 1203 (5th Cir 1987) – (Approved)

Canada

1. Bhatnager v Canada (Minister of Employment and Immigration), [1990] 2 SCR 217 – (Followed)

Statutes

East Africa

1.    Constitution of Kenya, 2010 articles 25, 33, 159 – (Interpreted)

2.    Civil Procedure Act (cap 21) sections 3, 3A, 63(e);100 – (Interpreted)

3.    Civil Procedure Rules, 2010 (cap 21 Sub Leg) order 40 rule 3 – (Interpreted)

4.    Evidence Act (cap 80) sections 106 A to 106 I  - (Interpreted)

5.    Judicature Act (cap 8) sections 5 – (Interpreted)

United Kingdom

1. England Civil Procedure Amendment No 2 Rules, 2012 rules 81.4, 81.16, 81.17 – (Interpreted)

2. Supreme Court Rules order 52 – (Interpreted)

Texts & Journals

1.    Eady, D., Smith, ATH., (Eds ) (2015) Aldridge Eady & Smith on contempt London:Sweet & Maxwell  p 1641-171 (K) 

2.    Garner, BA., (Ed) (2009) Black’s Law Dictionary  St Paul Minnesota: West Group Publishers  9^th Edn

3.    Johnson, H., e tal  (Eds) (2010) Borrie & Lowe on the law of contempt  London: LexisNexis  4^th Edn p 155 para 6-9 

Advocates

1. Mr Mmaitsi & Mr Wandabwa for the Plaintiffs/Applicants

2. S C Mr Ahmednassir for the 1^st and 2^nd defendants/ respondents

3. Miss Mutua for the 6^th defendants

Circumstances under which the Court can issue an order for interlocutory injunction

Vimalkumar Bhimji Depar Shah & another v Stephen Jennings & 5 others

Civil Case No 300 of 2015

High Court at Nairobi

R E Aburili J

August 10, 2016

Reported by Phoebe Ida Ayaya

Constitutional Law - fundamental rights and freedoms - right to freedom of expression and media - limitation of rights - balancing of rights and fundamental freedoms - whether in determining defamatory claims there was a need to balance the constitutional provisions of the freedom to express oneself and impart information to others and right to reputation and inherent dignity - Constitution of Kenya, 2010 articles 28 and 33

Civil Practice and Procedure - injunction - application for interlocutory injunction in a suit for defamation - circumstances under which the court would issue an order for interlocutory injunction - Civil Procedure Act section 1A and 1B; Civil Procedure Rules Order 40

Tort Law - defamation - libel - action for defamation  -element of defamation - whether the article published by the defendants concerning the plaintiff was false, reckless and malicious - whether the words in the said article in their natural and ordinary meaning were defamatory of the plaintiff’s reputation and professional standing

Brief facts

An application for injunctive orders for leave to the Plaintiff to effect service on the 2^nd Defendant by way of substituted service in daily newspaper, and interim injunction on each Defendant restraining them from posting defamatory words relating to the Plaintiff, a mandatory injunction against the Defendants to erase the defamatory posts and an injunction requesting Google and twitter to assist in the aforesaid orders.

Issues

i. Whether the words in the said article in their natural and ordinary meaning were defamatory of the Plaintiff’s reputation and professional standing.

ii. Circumstances under which the Court would issue an order for interlocutory injunction to prevent defamation.

iii. What was required to be established in an action for defamation?

iv. Admissibility of electronic evidence

v. Whether in determining defamatory claims there was a need to balance the constitutional provisions of the freedom to express oneself and impart information to others and right to reputation and inherent dignity.

Relevant provisions of the law

The Constitution of Kenya, 2010

Article 33

Freedom of Expression

 1. Every person has the right to freedom of expression which, includes;-

 a). Freedom to seek, receive or impart information or ideas.

 b). Freedom, of artistic creativity; and

 c). Academic freedom and freedom of scientific research.

 2.  The right to freedom of expression does not extend to:

a). Propaganda for war

 b) Incitement to violence

 c). Hate speech; or

 d). Advocacy of hatred that –

 (i) Constitutes ethnic incitement, vilification of others or incitement to cause harm; or

 (ii) Is based on any ground of discrimination specified or contemplated in Article 27(4).

3. In exercise of the right to freedom of expression, every person shall respect the rights and reputation of others.

Civil Procedure Rules

Order 2 Rule 7(2)

Where in action for libel or slander the defendant alleges that in so far as the words complained of consists of statements of fact, they are true in substance and in fact, and in so far as they consist of expressions of opinion, they are fair comment on a matter of public interest or pleads to the like effect, he shall give particulars stating which of the words complained of he alleges are statements of fact and of the facts and matters he relies in support of the allegation that the words are true.

Defamation Act

 Section 15

In an action for libel or slander in respect of words consisting partly of allegations of fact and partly of expression of opinion a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved.

Held

1. In an application for both  a mandatory and  prohibitory  injunctions, all the Applicants  were required to:

a) establish  that they  had a prima facie  case with a probability of success;

b) that if  the injunction  was not granted, they  stood to suffer loss  and damage that  could not be compensated  by way of damages;

c) that if the Court was in doubt, it would decide the matter based on a balance of convenience.

2. Interlocutory injunctions were granted prior to the trial of action or until further order was made in order to preserve the status quo until the Court could hear the dispute fully. In defamation claims, an injunction could properly issue to restrain an obstruction to justice and in particular, to certain publications or planned publications that were calculated to prejudice proceedings actually in progress or those about to be heard.

3. The test  for an interlocutory  injunction  which was mandatory in nature  was more  onerous  than  was the case for  an interlocutory  injunction  which was  prohibitory in nature. 

4. As stated in the ruling on the application for contempt, there were serious allegations by the Plaintiffs against all the Defendants to the effect that the Defendants had published highly libelous material of and concerning the Plaintiffs, nonetheless, the alleged publications were allegedly made in the internet through websites, twitter handles or speeches saved on CDS and other digital/electronic forms.  It was not a publication in the newspapers. 

5. The alleged impugned articles having been published in the electronic or digital form, it was necessary that certificates of transcription and appropriate leave sought and granted to play the CDs containing the alleged defamatory material accompanied the extract publications.  That was not done.

6. The Claimant had to establish that the Defendants published the words complained of;

a) that they were defamatory;

b) that they tended to lower the reputation of the Claimant in the estimation of the right thinking members of the society generally;

c) that the  words  referred to the claimant  and finally, that the words  were malicious

What the Court was shown to be publications were transcribed material from websites twitter handles and other electronic or digital formats.

7. For material to be said to have been published, and for the Court to grant a mandatory injunction, it had to be satisfied that the case was a clear one, as the standard of proof required was higher than that required in prohibitory injunction.  It was not sufficient for the Claimant to publish the alleged defamatory words in his pleadings or affidavit and claim for a mandatory injunction.

 8. The Court should have been enabled to access and view the electronic /digital/internet sources as contemplated in sections 106A-106I of the Evidence Act.  Electronic evidence was subject to manipulation that was why the Evidence Act stringently provided for standards on how such evidence was to be adduced.  In the case, the Plaintiffs   had not demonstrated to Court what instruments were used to produce the CDs annexed. They had also not shown that there was publication of the alleged defamatory words in the internet and or twitter handles as the Court could not presume the authenticity of what was in the internet, and which could easily be manipulated. The case for a mandatory injunction had not been shown on a balance of probabilities to be unusually strong.

9. It was not just the issue of admissibility of digital evidence at that stage but its probative value. At that interlocutory stage especially in the prayer for a mandatory injunction, the essence of justice was fairness to both parties.

10. If  the Court was to consider  in detail  the dispute  between the parties  by referring  to the websites/twitter/electronic/digital publications which had not been produced in a manner acceptable in law, there was the  danger  of determining  the merits of the suit  on affidavit evidence without hearing  both parties which determination  would  prejudice  the findings  to be  made at  the full hearing.

11. On a balance of probabilities there were serious allegations made against the defendants. Those of allegedly publishing and disseminating highly inflammatory statements and words of and concerning the Plaintiffs in their business and reputation   and which, should be proved that they were false. Even if the Defendants had proved justification and fair comment in the public interest, since the Plaintiffs had not lost the opportunity to adduce their evidence in support of the serious allegations leveled against the defendants, the Plaintiffs’ reputation would be greatly affected and they stood to suffer irreparable injury which could not be adequately compensated by an award of damages.

12. From the allegations that the Defendants’ alleged publications referred to the Plaintiffs as being engaged in criminal activities, manipulated the courts and corrupted them; were extortionists, on the face of it. Such words imputed criminal activities on the plaintiffs as pleaded in the plaint and reproduced in the supporting affidavit to the application appeared defamatory, subject to proof of truth or fair comment on matters of public interest.

13. In addition, balance   of convenience tilted in favour of the applicant as the Defendants stood to suffer no prejudice if they were prohibited from publishing any statements that were defamatory of and concerning the plaintiffs.

 14. In defamation cases, the Court ought to weigh between the freedom to express oneself  and impart information to others against  the  respect for  others’ right  to reputation and inherent  dignity, all enshrined  in the Constitution of Kenya, 2010. Decisions relied on by the defendants were persuasive and not binding. Similarly, the foreign decisions were also persuasive and not necessarily in line with Kenya’s 2010 Constitution, which, though granting the freedom of speech and expression, nonetheless limited that freedom and subjected it to other person’s right to inherent dignity and also the right to their reputation being protected and not to be vilified by others.

15. Article 33 of the Constitution of Kenya, 2010 which provided for freedom of expression and information also limited the same freedom. To refuse to grant an interlocutory injunction in the case would be granting a license to the Defendants to engage in highly inflammatory defamatory publications that were likely to injure the Plaintiff’s reputation and trade in the eyes of right thinking members of the society generally. The 1-5^th Defendants were business moguls just as the Plaintiffs and a possibility of business rivalry playing out could not be ruled out

16. It was not in every case where the defence of justification or fair comment on matters of public interest or absolute or qualified privilege was pleaded that the court would deny an injunction in defamation cases. Each case had to be weighed on its own circumstances, especially in the new constitutional dispensation, considering the fact that the Defamation Act had never been amended to align it to the Constitution of Kenya, 2010.

17. The 6^th Defendant did not file any affidavit to controvert the allegations leveled against him by the Plaintiffs. In the premises, considering that granting of an injunction at the interlocutory stage was in the discretion of the court, on affidavit evidence available, the Plaintiffs had established a prima facie case with a probability of success that the Defendants should be restrained by way of a prohibitory injunction from publishing any defamatory statements or words, of and concerning the Plaintiffs.

18. The case was not a clear one and there were no exceptional circumstances to warrant grant of mandatory injunction at that stage.  Those  who were  enlisted  to assist  in the enforcement  by way  of removal or deletion of the alleged  defamatory publications from the various websites and twitter handles were neither  parties to the suit  nor government  law enforcement  agencies.

19. Where the alleged publications were either in the internet, websites, twitter or other electronic or digital formats, the granting of mandatory orders sought by the Plaintiffs would be tantamount to issuing final orders.  Accordingly, the prayer for a mandatory injunction failed.

Application partly allowed.

a) Interlocutory prohibitory injunction granted. The interlocutory prohibitory injunction granted should remain in force for a period of twelve months only from the date hereof, unless extended with leave of court

b) The prayer for a mandatory injunction and for Google and Twitter to assist in enforcement was declined. 

c) Costs of the application should be in the main suit. 

d) The parties were directed to expeditiously prepare the suit for trial within 12 months from the date of the ruling.

Cases

East Africa

1.    Cage cot  Cotton Company Ltd v Tanzania Marketing Board (1997) TLR 63- (Explained)

2.    CFC Stanbic Bank Ltd v Consumer Federation of Kenya Civil Case 315 of 2014 – (Relied Upon)

3.    Giella v Cassman Brown & Co Ltd [1973] EA 358- (Followed)

4.    Hassan, Sharriff Abdi v Nadhif Jama Adan Civil Appeal  121 of 2005 – (Approved)

5.    Jaj Super Power Cash and Carry Ltd v Nairobi City Council & 20 others Civil Appeal 111 of 2002 – (Explained)

6.    Kenya Breweries Ltd v Washington Okeyo [2002]1 EA 109 – (Followed)

7.    Kibuchi ,Wachira Muriithi v Jadson Maranga Nyangau  Civil Case No 280 of 2006 – (Mentioned)

8.    Kiunjuri, Mwangi v Wangethi Mwangi &  2 others Civil Case No 1333 of 2003 – (Followed)

9.    Media Council of Kenya v Eric Orina Civil Case 540 of 2012 – (Considered)

10. Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] 1 KLR 125 – (Explained)

11. Mucuha, Kamau   v Ripples  Ltd CA [1993] 35 – (Explained)

12. Nyagah, Ruth Ruguru v  Kariuki Chege &  another Civil Case No 73 of 2015 – (Relied Upon)

13. Safaricom Ltd v Porting Access (K) Ltd & another Civil Case 167 of 2011- (Relied Upon)

14. Star Publication Ltd & another v Ahmednasir Abdullahi & 5 others Civil Case No 317 of 2013 – (Considered)

United Kingdom

1.    AIB v Diamond [2011] IE – (Explained)

2.    Bonnard v Perryman 1891- 4 AII E R – (Explained)

3.    E Hulton & Co v Jones  [1910] AC 20; [1908-1910] All ER Rep 29, 79 LJKB 198; [1909] 2 KB 444 – (Approved)

4.    Film Rover International Ltd v Cannon Film Sales Ltd (No 3) [1989] 1 WLR 912; [1989] 3 All ER 423 (CA)– (Explained)

5.    Frazer v Evans & others [1969] 1 AII ER - (Relied Upon)

6.    Lingani v Health Service Executive [2005] IE SC 89 – (Explained)

7.    Locabail International Finance Ltd v Agro Export & another (1986), AII ER 901 – (Followed)

8.    O’Brien v Dromoland Castle Owners Association inc, (s) [2012] IE HC 407 – (Explained)

Statutes

East Africa

1.    Constitution of Kenya, 2010 articles 28 ,33  - (Interpreted)

2.    Civil Procedure Act (cap 21) section 3, 3A, 63(e) – (Interpreted)

3.    Civil Procedure Rules, 2010 (cap 21 Sub Leg) order 40 rule 2 ; order 51; order 2 Rule 7(2) – (Interpreted)

4.    Defamation  Act  (cap 36)   sections  14,15 – (Interpreted) 

5.    Evidence Act (cap 80)  sections 106 A-106 I – (Interpreted)

Texts & Journals

1.    Edwards, L., Waelde,C., (Eds) (2009) Law  and the internet  London: Hart Publishing 3^rd Edn

2.    Garner,BA., Black’s  Law  Dictionary  St Paul Minnesota: West Group Publishers 8^th Edn

3.    Hogg,QM,(Lord Hailsham) et al ( Eds) (1987) Halsbury's Laws  of England London: LexisNexisButterworths 4th Edn vol 24  para 948

4.    Kirwan, B., (Ed) (2008)  Injunctions Law  &  Practice Dublin: Round Hall Press, pp 210-214

5.      Milmo, P., et al (Eds) (2008) Gatley on Libel  & Slander  London: Sweet & Maxwell 11^th Edn

6.    Richard  Kuloba, J., (Ed)  (1987) Principles of injunctions Nairobi:  Oxford  University press

Advocates

Miss Kamau h/b for Mr Wandabwa for the Plaintiffs

Mr Issa and Mr Busaidy h/b for SC Ahmednasir for the 1^st, 2^nd, 3rd, 4^th and 5^th defendants/Respondents

Miss Mutua for the 6^th defendant/Respondent