REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL CASE NO.  300 OF 2015

VIMALKUMAR BHIMJI DEPAR SHAH....................................1^ST PLAINTIFF  

BIDCO AFRICA LIMITED...........................................................2^NDPLAINTIFF  

VERSUS

STEPHEN  JENNINGS...............................................................1^ST DEFENDANT

RG AFRICA LAND LTD T/A                                                                                     

RENDEAVOUR  GROUP............................................................2^ND DEFENDANT

PRESTON  MENDENHALL.......................................................3^RD DEFENDANT

ARTEM GUREVICH....................................................................4^TH DEFENDANT

ALY KHAN  SATCHU..................................................................5^TH DEFENDANT

CYPRIAN  NYAKUNDI.................................................................6^TH DEFENDANT

RULING ON INTERLOCUTORY INJUNCTION

1. This ruling determines the Notice of Motion dated  31^st August  2015  filed by the plaintiff  Vimal  Kumar  Bhimji Depar Shah and Bidco  Africa  Limited who are the applicants, against  the defendants  Stephen Jennings RG African Land Ltd t/a Rendeavour  Group, Preston Mendenhall,  Artem Gurevich, Aly Khan  Satchu and Cyprian Nyakundi.  The application which  was  filed under  certificate   of  urgency  under the provisions of section 3, 3A, 63(e) of the Civil Procedure Act, Order 40 rule 2 of the Civil Procedure Rules, Order 51of the Civil Procedure Rules and all other enabling provisions of the law and inherent powers of the court. The application seeks for  injunctive  orders  as follows:

i. Spent

ii. That leave be granted to the plaintiffs herein to effect service on the second defendant RG Africa Land Limited, Preston Mendenhall and Artem Gurevich by way of substituted service in Daily Newspaper of wide circulation.

iii. Pending the hearing and  determination of the application interpartes, an interim  injunction  directed  at each of the  defendants restraining them by themselves, their agents, servants or otherwise  howsoever from posting on any electronic  media, or publishing, or disseminating  in any manner  whatsoever the defamatory  words, statements  or content or  any similar   word or  statements or content, of like  effect relating to the  plaintiffs herein.

iv. Pending the hearing  and determination of the application interpartes, a mandatory injunction be issued directed  at each of the defendants  compelling them, by themselves, their agents, servants  or otherwise  howsoever to erase and remove  from their various  posts, websites , blogs or their  forms of electronic  and social media  of any form or nature  whatsoever the said defamatory  words, statements, or content  or any similar  words  or statements  or content of like effect relating to the plaintiffs  herein.

v. Google and twitter be directed to assist in affecting    the aforesaid orders.

vi. Spent.

vii. Pending  the hearing and   determination of this suit, an interim  injunction be issued  directed  at each  of the defendants, retraining  them by themselves, their agents, servants , proxies or otherwise  howsoever  from posting  and forwarding on any electronic  media, or publishing, or disseminating in any manner  whatsoever  the defamatory  words, statements or  content or any similar words  or statements  or content, of like  effect  against  the plaintiffs  herein.

viii. Pending the  hearing and determination  of this suit, a mandatory injunction  be issued directed  at each of the  defendants  compelling  them, by themselves, their agents, servants or otherwise  howsoever  to erase  from their   various  posts, websites, blogs  or their  other forms of electronic  and social media  of any form or nature   whatsoever the said defamatory  words, statements, or  content  or any similar  words  or statements   or content, of like  effect.

ix. The costs of this application be provided.

2. The Notice of Motion is grounded on  9 grounds  on the face of the application  and supporting  affidavit of  Mr Vimal Kumar  Bhimji Depar  Shah sworn on 31^st August  2015.

3. The grounds and supporting affidavit lay the foundation for this suit and the application for injunctive orders.  It is  averred  and deposed that on 20^th May  2015  the 3^rd defendant  Presten Mendanhall on behalf of   the second defendant  RG African Land Limited  wrote a letter  to the plaintiffs’   various business  associates  including  IBM East  Africa  which words  are  set  out in  paragraph  12 of the  plaint, and which words   are said  to be  injurious  to the plaintiffs’ reputation;  That on 9^th June   2015  at Sankara Hotel in Westlands, Nairobi  at  a Mind speak forum hosted by the  2^nd  defendant, the first defendant  Stephen Jennings  delivered a speech to a  large audience  of influential  investors, in which he  uttered the words particularized in paragraph 17 and  18 of the plaint, which  were  defamatory to the first  plaintiff; That the 5^th defendant Aly Khan Satchu fielded  questions to the  1^st defendant which  questions  were meant  and did  encourage the first  defendant to utter  further defamatory  statements  regarding   the first plaintiff:  That the  1^st defendant  proceeded to  post and publish the said  defamatory  statements on their website to wit  http://www.rendeavour.com on the  world wide  web of  the internet, in particular, by way of a video link to YouTube with the link appearing on the first defendant’s  website: That the said  website   has  remained  open to  general access  by any  user of  the world wide  web hence, it is to be  inferred  from the open  access of the site and  the wide  interest by Kenyans  and international investors  in Kenya’s economic  climate  and  or business  opportunities  on account of Kenya being the gateway to East  and Central Africa, that the words  complained of  in paragraph  5 and 6 of   the plaint   were published  to  a substantial  and unquantifiable  number  of readers who as  at  28^th August  2015  stood at   55,019 and  117 respectively: That the  fifth defendant  has  proceeded   to post and publish  the  said defamatory statements  in a video  hosted  on Youtube with the link  appearing  on the second  defendant’s  website  to wit  www.Rich.co.ke and his  personal  twitter handle  to wit  @alykhansatchu  with the  following of 189,000 followers: That on  1^st July  2015  the first  defendant   has after   publication of the  aforementioned  defamatory articles  proceeded  to undertake   a very vile smear  campaign against the  first plaintiff  and the second  plaintiff by  distributing  leaflets  and posting messages  on line as  particularized in paragraphs 29,30 and  31 of the plaint; That the sixth defendant Cyprian Nyakundi  has also been  enlisted by the  1^st defendants and he  has undertaken a very  vile  smear campaign against   the plaintiffs  and he had  during the months  of July 2015  to August  2015  published  various  defamatory statements  on his  blog site http://cnyakundi.com as well as  on the various  online  twitter  platforms  vide @c-nyakundi  it  with 611,900 or more  followers; that despite the gravity of  the allegation being  made  against the plaintiff by the defendants  they  have despite  repeated  demands failed to pull down  from their  websites  the defamatory article  despite  their  knowledge of the said  articles  causing  distress  and exposing  the plaintiffs to  odium, ridicule and contempt.  The  said defamatory  articles  continue to  expose and cause the plaintiffs  untold distress  as they are being  viewed by hundreds of  thousands and /or  millions of Kenyans  and other nationalities  spread across the world  on the  world  wide web system  of the internet; That by reason of the words  complained of at paragraphs  12,17,18,29,33 and 37  of the plaint have gravely  injured the reputation of the plaintiffs, and have exposed the plaintiffs to odium and or public scandal and contempt  and caused hem  deep embarrassment  and distress  and continues  to do so; that the third  defendant  has after a failed bid to extort  shs  40 million from the plaintiffs   threatened and has continued   publishing   further  false  and  defamatory statements  about the  plaintiffs and BIDCO and he  has posted  over  30 defamatory posts  on his blog  and on twitter  under various “hash tags” as  particularized in paragraphs  37 of the plaint; and that  unless restrained, and expeditiously so, the defendants will continue  to further  publish  or cause to the published  the  same or  similar defamatory  words of the plaintiffs thereby causing them  irreparable  harm.

4. The supporting affidavit annexes the alleged reproduced defamatory publications/matters.

5. In opposition to the application  for  injunction the  1^st, 3^rd, 4^th and 5^th defendants filed  grounds of objection on 9^th September, 2015  contending that the application was devoid of merit as the main suit was legally untenable and fatally defective, the applicants have no prima facie case with a probability of success as required in the Giella v Cassman Brown case; the defendants plead the defence of  justification, fair comment and qualified privilege and therefore no 9interlocutory injunction can issue; that the words complained of are truthful and not defamatory that the plaintiffs’ complaints are informed by Indian cultural values and norms on honour and integrity; that the suit is propelled by the plaintiffs’ inflated ego and sense of self- importance and is not about whether or not he was defamed by the defendants and that the court is not the proper institution to help him solve such personal issues and problems; and that the  defendants constitutional right to express their opinions should not be curtailed by unreasonable and whimsical demands by the plaintiffs. The 6^th defendant respondent did not file any response to the application.

6. The application was argued orally before me on 10^th September  2015  with Mr Mmaitsi  submitting for the plaintiff’s  applicants that the plaintiff  holds various positions and directorship in  large manufacturing  companies  including Bidco Africa Limited; is a  respected  member of the  business community both locally, regionally and internationally  as listed in paragraph 2 of his  supporting affidavit: that he is an advisor to various presidents of the world; That the plaintiff is of good character which the defendants are  unlawfully attacking, among other tributes.

7. Further, that some of the defendants documents confirm that position and the respect that the plaintiff enjoys worldwide.  The plaintiff’s counsel submitted that the words used in  the publications were meant and  have indeed  disparaged  the plaintiff’s   good  reputation in that they have painted  the plaintiff as a person who does not  respect  any legal process;  manipulates  the judiciary; is  willing to engage  in corrupt practices   including  demanding  for bribes  which allegations  impute  criminal activities  on the part of  the plaintiff, punishable  by jail terms.  Counsel also referred to the several annextures including   annexture 1 and 3.  Annexture  3 is  a public  lecture  by the 1^st  defendant  at a forum hosted by the 5^th defendant  and repeated  in the 3^rd defendant’s letter  to IBM EA.  It  was  submitted that the video  from the lecture  was posted to various   websites  of the defendants  accessed  by various  people  which  is alleged to be injurious  to the plaintiff’s character and reputation. 

8. It  was  also submitted that the  5^th defendant  fielded questions after  hosting  the speech and  did not  control or stop his guest  from giving  answers   that  were defamatory of the plaintiffs. It was further submitted  that the  defendants formed a  website  known as Badcoafrica.com  which is  used to spread malicious  falsehoods  and have  distributed leaflets making false allegations against the plaintiffs in supermarket chains alleging that the plaintiffs  had  grabbed land  among other  false allegations.  It was submitted that the publications are not mere criticism of the plaintiffs but that they all bear negative connotations which are   harmful to the plaintiff’s character and reputation. That when  the plaintiff  attended  the GES summit , and in  the presence  of World  leaders  and Heads of  States  and Entrepreneurs, the defendants  circulated false  and  malicious  leaflets  to the participants.  That the  6^th defendant  who  is a blogger   picked  up those  defamatory  matters  and reproduced  them in his blogs, equating  the plaintiff’s actions to terrorism; describing the plaintiff as a land grabber; violator of human rights  and one who had  corrupted the Ugandan Government.  That malice is evident and presumed from the alleged publications for example, that there is no reason for writing to IBM where the defendants are not shareholders.  That the publications   were published to the whole world without calling on the plaintiffs to defend himself or themselves.  That the malicious campaign is fuelled by a dispute over Tatu City Enterprises.   Counsel for the plaintiffs urged the court to protect the personal dignity of the plaintiffs as that right is guaranteed under Articles 28 and 33 of the Constitution.  He relied  on  several authorities  to fortify his clients positions including  CFC Stanbic Bank  Ltd V Consumer Federation of Kenya  HCC  315/2014; Safaricom Ltd V Porting  Access (K)  Ltd  & Another  HCC 167/2011; Kenya  Breweries  Ltd & Another  Vs Washington  Okeyo CA 332/2000; Gatley on Libel  & Slander  11^th Edition  Sweet  & Maxwell) ;Law  and the internet  3^rd Edition Lilian Edwards  and Chanlotte Waelde; and Black’s  Law  Dictionary 8^th Edition, Bryan  A. Garner.

9. Counsel for the plaintiffs submitted that when parties  disagree over business  ventures, they should  not misuse  freedom of speech and that   where such misuse is apparent, mandatory  injunctions  are granted  in clear and  special  circumstances.  He maintained that the plaintiffs  had established  a prima facie  case on the  meanings  of the words published  and the damage  those words  have caused  and or likely to cause  in libel  are assumed, which harm  is irreparable.  Further, that allowing  the continuation of  such defamatory  statements  to be published  against the  plaintiffs  will  leave  the plaintiffs  with no recourse in the business  world  since they  are regarded  as thieves  hence both  prohibitive  and mandatory injunctions should  be granted in their favour.

10. In opposition to the plaintiffs application, the 1^st- 5^th defendants represented by Senior Counsel Mr  Ahmednasir Abdullahi  submitted, relying on the grounds of opposition filed on 9the September, 2015 and the statements  of defence  filed on  behalf of his  clients.  Senior Counsel contended that all the prayers  in the Notice of  Motion   were spent   save for  prayers 7, 8 and 9.  He contended that the application dated 31st August   2015  is  frivolous, undeserving  and an abuse  of the court process.  That there   was no genuine complaint by the plaintiffs who only want the court to protect his ego.  That there is no evidence that he is an advisor to presidents of the world.  That the allegations that the 3rd defendant’s letter is defamatory are not true.  That the 3^rd defendant pleads the defence of justification and that they shall demonstrate it at the trial.  Senior Counsel urged the  court not to grant  interlocutory  injunction  once the defence  of justification  is pleaded, as  espoused in Section  14  of the Defamation  Act  36  of Laws of Kenya.  He also relied on  principles  of injunctions by  Richard  Kuloba [1987] Oxford  University  press of  freedom of speech  which  should not  be limited than is necessary  and that  the law of defamation is there  not to  protect  private  rights  of parties to  litigation or prosecution but founded entirely  on public policy.

11. That the plaintiff can be awarded damages if the defendants fail to justify their defence  of justification.  Senior counsel maintained that none of the extracts annexed are defamatory but are prima facie  general comments  by businessman in Uganda and Kenya.  He  relied on the Star Publication  Ltd & Another  V Ahmednasir Abdullahi &  5 Others  HCC 317 of 2013  where Onyancha J declined to  grant injunction  where there  was a plea of justification  because  the plaintiff could plead for damages.

12. According to Senior Counsel, the  defendants  were at liberty to publish defamatory  words at  their own  risk without their  right of free speech being  curtailed or  at all.  He also relied on the Media Council  of Kenya Vs  Eric Orina HCC 540/2012 cited by Onyancha J  in the above  case of  The Star  Publication Ltd Vs Ahmednasir Abdullahi. citing  Cheseren Vs  Immediate  Media  Services [2000] 2 EA  371 counsel submitted that  an interlocutory injunction at  this state  was redundant. Further, that  there must  be  substantial  risk of grave injustice  for a court  to grant an interlocutory  stage in defamation  claims.  Further reliance   was  placed on the English case of  Frazer  V Evans  & Others[1969] 1  ALL ER  where the court  held that the court would  not  restrain  the publication of an article  even though  it  was defamatory, when the  defendant  said that  they  intended to plead justification or  fair  comment.  He further submitted that the words complained of are not defamatory but only construed to be so and that even if they were defamatory, the defendants plead justification and are willing to be held liable to pay to the plaintiff any damages that may be awarded.  He also submitted that the annexed discs and videos   are inadmissible at this stage and that all the averments of the plaintiffs are worthless.  He urged the court to dismiss the application for injunction as it has no prima facie case with a probability of success since the alleged particular defamatory words are not set out.

13. Miss Mutua  counsel for the  6^th defendant  submitted  that her client  writes on issues of public interest, pollution, deforestation, land grabbing and human rights  violations which are issues of public interest generally and which issues  outweigh  issues of  private nature.  She relied on Ruth Ruguru  Nyagah Vs  Kariuki Chege &  Another [2015] e KLR  where the court held  that the court had  to  weigh the defendant’s right of  self expression against the  plaintiff’s right of protection and  that it  has to favour the constitutional right  to the protection  of the public interest.  That the  6^th defendant was exercising  his constitutionally guaranteed  right under  Article  33  of the Constitution  which overrides  the plaintiff’s  private  right.  She also concurred  with the decisions  relied on  by Senior Counsel Ahmednassir Abdullahi in his submissions which she submitted, are clear  that where  the rights of  free speech are involved, the court has to weigh  out whether  they should  override the rights  of private citizens.  She submitted that a mandatory injunction will fetter the 6^th defendant’s freedom of expression hence it should not be granted.  Counsel urged the court to dismiss the application against her client with costs.

14. In a  brief  rejoinder, Mr Mmaitsi submitted that the reference  to Kuloba’s  book is  misplaced  as the issues  that  he  was dealing  with are different  from the issues at hand in that he  was dealing  with whether  the law of  contempt  can be used  to impede  free speech.

15. Concerning the case of Kenya Breweries Ltd V Okeyo,(2002) 1 EA 109 Mr Mmaitsi submitted that the court  was clear that no exceptional  circumstances  existed  unlike in this case   where there    were exceptional circumstances. Further, that in Bonnard V Perryman (1891-4 ALL E.R) case, the court  found that  an injunction  could not  be granted  where the defence  of justification  is pleaded  unless  the court can be sure that the defence  cannot  be sustained  at the trial.  Counsel submitted that in the instant case, the defendants had not assured the court by way of affidavit that what they plead is the truth and that there has been no retraction of the facts deposed in the applicant/plaintiff’s affidavit.  He also submitted that the defendants are not truthful, trustworthy and humane deserving of protection of their constitutional rights.  That in Cage cot  Cotton Company Ltd V  Tanzania Marketing Board (supra)  case,  the court  granted an interlocutory  injunction because  the private  interests  outweighed  the public interest.  He argued that the plaintiff   deserved his dignity protected even  if there was  no evidence of his  involvement   in the management  of Bidco Group of Companies.

16. Before the ruling here could be  written and delivered  as  scheduled d for  8^th October  2015  the applicants/plaintiffs herein filed another  application dated   29^th September  2015 seeking to have the defendants cited  for  contempt of court.  The court therefore recalled the ruling in the application for injunction and heard the application for contempt, with the agreement of  both parties’ advocates  on record that the rulings in both applications be  delivered on the same day.  I have just rendered the decision on contempt of court. I must therefore pronounce myself on whether or not the application for interlocutory injunction is merited.

17. I  have carefully  considered the pleadings, affidavit evidence on record, grounds  of opposition, oral  submissions  of learned counsel  for the  respective parties  and the law  both Constitutional , statutory  and case law  relied on. This being an application for both  a mandatory and  prohibitory  injunctions, all the applicants  are required to do is, firstly, to establish  that they  have a prima facie  case with a probability of success; secondly, that if  the injunction  is not granted, they  stand to suffer loss  and damage that  cannot be compensated  by way of damages  and finally, that if this court is In doubt, it will  decide the matter based on a balance of convenience. The above principles were set out clearly in the celebrated case of Giella V Cassman Brown & Company Ltd [1973] EA 358 at page 360 where   it was stated:

“First, an applicant must show a prima facie case with a probability of success.  Secondly, 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. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience (EA industries V Trufoods [1972] EA 420)”

18. It is worth noting that interlocutory injunctions  are granted prior to the trial of action or until further order is made in order to  preserve the status quo until the court can  hear the dispute  fully. Further, in defamation claims, an injunction can properly issue to restrain an obstruction to justice and in particular, to certain publications or planned publications that are calculated to prejudice proceedings actually in progress or those about to be heard.

19. However, the test  for an interlocutory  injunction  which is mandatory in nature  is more  onerous  than   is the case for  an interlocutory  injunction  which is  prohibitory in nature.  This is  as was  established  in the case of  O’Brien V Dromoland Castle  Owners Association inc, (s) [2012] IE HC 407 where  the court, applying   common law  principles stated  that, referring  to Kirwan’s injunction, law  and Practice Round Hall Press, Dublin; 2008 pp 210-214 that it is significantly harder  to secure a mandatory injunction at an interlocutory stage  than a prohibitory  one.

20. In Lingani V Health  Service Executive [2005] IE SC 89 Fennelly J stated  that  in such a case, It is necessary  for the applicant  to show  at least  he has a strong  case that he is  likely to succeed  at the hearing  of the  action.”  In AIB V Diamond [2011] IE HC Clarke J noted that  cases  involving  mandatory interlocutory  injunctions  require  a higher  level of  likelihood  of the  applicant succeeding  at trial.

21. In Mrao Ltd V First American Bank of Kenya Ltd & 2 Others [2003] 1 KLR 125 the court defined a prima facie case in civil cases as:

“ A case  in which  on the  material  presented  to the court  a tribunal properly directing itself  will conclude  that there exists  a  right  which has  apparently  been  infringed  by the opposite  party as   to call  for  an explanation or rebuttal from the latter”.

22. In the case of mandatory injunctions as was held in Kenya Breweries Ltd Vs Washington Okeyo CA App 332/2000, an applicant must demonstrate the existence of special circumstances.  The threshold in mandatory injunctions is higher than in the case of prohibitory injunctions and the Court of Appeal in the case of Kenya Breweries Ltd vs Washington Okeyo (2002) EA 109 had occasion to discuss and consider the principles that govern the grant of mandatory injunctions.  The Court of Appeal  held that the test for  grant of a mandatory injunction  was as correctly stated in VOL 24  of Halsbury’s Laws of England 4^th Edition paragraph 948 that:-

“ A mandatory  injunction can be  granted  on an interlocutory  application as well as at the  hearing, but  in the absence  of special  circumstances, it will not normally, be  granted.  However , if the case is  clear  and one which the court  thinks  it ought to be decided at once, or if the act done  is simple  and summary  one which can be easily remedied, or if  the defendant attempts to steal a match on the  plaintiff, a mandatory injunction will be granted  on an interlocutory application.

 In the  English case of Locabail International Finance Ltd vs Agro Export  & Another (1986), ALI  ER 901 which  the Court of Appeal in Kenya has followed  with approval in may decisions, the court held that:-

“ A mandatory  injunction  ought not   to be granted on an interlocutory  application in the absence of  special  circumstances  and then only in clear  cases  either where  the court  thought  that  the matter ought to be  decided  at once  or where  the injunction  was directed at a  simple  and summary  act which  could easily be remedied  or where  the defendant had attempted to steal a match  on the plaintiff.  Moreover, before  granting a mandatory injunction, the  court has to feel a high sense of assurance that at the end of the  trial it would appear that the  injunction  had been rightly granted, that being  a different  and higher  standard  than required  for a prohibitory  injunction.”

23. The  above decision was cited with  approval by the Court of Appeal in the case of Sharriff Abdi Hassan vs Nadhif Jama Adan CA 121/2005(2006) e KLR by further  observing  that:-

“The courts   have been reluctant to grant mandatory injunction at the interlocutory stage.  However, where it  is prima facie established  as per the standard  spelt out in law as stated above that a party against  whom a mandatory injunction  is sought  is on the wrong, the courts  have taken action to  ensure that  justice is meted out   without  the need to  wait  for the full hearing of the entire  case.  That  position could be taken  by the courts  in such cases as those of  alleged trespass to property.”

24. The same Court of Appeal in the case of Jaj Super Power Cash and Carry Ltd vs Nairobi City Council & 20 others CA 111/2002 stated:

“ This court has recognized  and held in the past  that it is the trespasser  who should  give way pending  the determination of the dispute  and it is  no answer that the alleged  acts  of trespass are compensable  in damages.  A wrong doer cannot keep what he has taken because he can pay for it.”

25. As stated  in the ruling  on the application for contempt, the court  notes that  although  there are serious allegations by the plaintiffs against  all the defendants  to the effect that  the defendants  have 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.  The defendants deny  the alleged  publications but nonetheless  contend  that even if  they so published   the  alleged  defamatory  words of  and concerning  the plaintiffs, they  plead  the defences of  fair comment on matters of public interest and justification.  They also content that the application for injunction is meant to curtail their freedom of expression guaranteed under the Constitution.

26. I have examined the impugned publications both in the plaint and in the supporting affidavit. The plaintiffs have averred that the impugned publications are  meant or were understood to mean inter alia that the plaintiffs are land grabbers; ruthless imperialists; are involved in corrupt dealings with the  Ugandan government and or  the justice system; are inhuman and heartless; and involved in terrorism and corporate terrorism; are involved in the degradation, pollution  and destruction  of the environment; have  no regard  for human rights; have  no regard  for  animal rights; earn them income   unjustly; take  advantage of the down trodden; are  corrupt  and  engage  in criminal  and or   fraudulent  activities are unprofessional in the conduct  of their  affairs; extortionists; manipulative; sabotages Tatu City  project; corrupts the Kenyan Government  for own selfish  ulterior   purposes; corrupts  and manipulates the Kenyan judicial  system; are  vexatious  litigants; conspirators   with Nahashon Nyagah to steal millions of dollars from Tatu City.

27. Nonetheless, the alleged  impugned  articles  having been published  in the electronic  or digital form, it  was necessary  that the  extract publications are  accompanied  by certificates of transcription  and appropriate  leave sought  and  granted  to play in the view  of the court  the CDs containing  the alleged  defamatory  material.  This was not done.

28.  Although this court is not hearing the main suit at this juncture, in  tort of defamation, the claimant  must  establish  that the words  complained  of were published  by the defendants; that they  are defamatory, that is , that they  tend to lower the reputation  of the claimant  in  the estimation of the  right thinking members of the society generally; that  the  words  refer to the claimant  and finally, that the words  are malicious. What this court was shown  to be publications  are  transcribed  material from websites, twitter handles and  other  electronic  or digital formats.  For such material to be said  to have been published, and for the court to grant a mandatory injunction, it must be satisfied that the case is a clear one, as the standard of proof required is higher than that required in prohibitory injunction.  it is not  sufficient  for the  plaintiff/claimant to “publish” the alleged defamatory words m in his pleadings  or affidavit and claim for a mandatory injunction.  The court should have been  enabled  to  access  and view  those  electronic /digital/internet  sources   as contemplated in Sections 106A-106I of the Evidence Act.  Electronic evidence   is subject   to manipulation that is why the Evidence Act stringently provides for standards  on how such evidence  is to be  adduced.  In this case, the plaintiffs   have not  demonstrated  to court   what  instruments   were used to produce the CDs annexed. They have also not shown that there was publication of the alleged defamatory words in the internet and or twitter handles as the court cannot presume the authenticity of what is in the internet, and which can easily be manipulated. In other words, the case for a mandatory injunction has not been shown on a balance of probabilities to be unusually strong

29. In my humble view, it is not just the issue if admissibility of such evidence at this stage but its probative value even at this interlocutory stage especially in the prayer for a mandatory injunction.  The essence of justice is fairness to both parties. In Film Rover International  Ltd Vs Cannon Film Sales Ltd [196] 3 ALL ER 722 the court held that:

“………In which  case  the  court  was  required  to feel a high degree of assurance  that the  plaintiff would  succeed  at the  trial before  an injunction  could be granted  or exceptional in that  because  withholding  an injunction  with  is a greater  risk of injustice  than  granting  it.”

30. In Kamau  Mucuha  Vs Ripples  Ltd  CA No. 186/1992  the Court of Appeal held that a mandatory  injunction  can only  be issued in the clearest  of cases  as granting  it at  an interlocutory  stage  amounts  to granting   a major relief  claimed  in the action and its effect is to determine  the suit absolutely.” That a mandatory injunction  ought not   to be granted  on the basis  of affidavit  evidence  that it is also established  in Case law  that  courts cannot  issue  a permanent  injunction  without evidence  being taken  at full trial( See  Wachira Muriithi Kibuchi V Jadson Maranga Nyangau  HCC 280/2006.

31. In the instant case,  If  I were to consider  in detail  the dispute  between the parties  by referring  to the websites/twitter/electronic/digital publications which have not been produced in a manner acceptable in law, there is the  danger  of determining  the merits of this suit  on affidavit evidence without hearing  both parties which determination  will  prejudice  the findings  to be  made at  the full hearing.

32. Nonetheless I find  that on a balance of probabilities  there are  serious  allegations made against  the defendants, those of allegedly publishing and or disseminating highly inflammatory statements and or words of and concerning the plaintiffs in their business and reputation   and  which, should it  be proved  that they are false,  even if the defendants have proved justification and fair comment in the public interest, since the plaintiffs have not lost the opportunity to adduce their evidence in support of the serious allegations leveled against the defendants,  the  plaintiffs’ reputation will be  greatly affected  and they  stand  to suffer  irreparable injury  which cannot  be  adequately   be compensated by an award  of damages. From the allegations that the defendants’ alleged publications refer to the plaintiffs as being engaged in criminal activities, manipulate the courts and corrupt them; are extortionists, on the face of it, such words imputing criminal activities on the plaintiffs as pleaded in the plaint and reproduced in the supporting affidavit to this application appear defamatory, subject to proof of truth or fair comment on matters of public interest. However, the old English case of  E. Hulton & Co. v. Jones [1908 – 1910] All E.R. (Rep.) 29 Lord Loreburn, LC (at p.47) stated that:

“Libel is a tortious act.  What does the tort consist in?  It consists in using language which others knowing the circumstances would  reasonably think to be defamatory of the person complaining of and injured by it. A person charged with libel cannot defend himself by showing that he intended in his own breast not to defame the plaintiff.  He has none-the-less imputed something disgraceful, and has none-the-less injured the plaintiff.  A man may publish a libel in good faith believing it to be true, and it may be found by the jury that he acted in good faith believing it to be true, and reasonably believing it to be true, but that in fact the statement was false.  Under those circumstances he has no defence to the action.”(emphasis added).

33. From the above decision which was cited with approval by Ojwang   J. (as he then was) in  HCC Civil Case 1333 of 2003 Mwangi Kiunjuri vs Wangethi Mwangi &  2 others, it is clear that pleading justification or truth is not a guarantee to continually print defamatory words concerning a person.

34. In addition, the balance   of convenience  tilts  in favour of the applicant  as the defendants  stand  to suffer  no  prejudice if they are  prohibited  from publishing  any statements  that are defamatory  of and  concerning  the plaintiffs.

35.  I  must also  add that  in defamation cases, the court  must 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. Having taken into account all the submissions and considered the Star publications Ltd v Ahmednasir Abdullahi case and Media Council of Kenya v Eric Orina  decisions relied on by the defendants are persuasive and not binding on me. Similarly, the foreign decisions are also persuasive and are not necessarily in line with our 2010 Constitution, which, though granting the freedom of speech and expression, nonetheless limits that freedom and subjects 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. Article 33 of the Constitution which provides for freedom of expression and information also limits the same freedom. To refuse to grant an interlocutory injunction in this case would in my view, be granting a license to the defendants to engage in highly inflammatory defamatory publications that is likely to injure the plaintiff’s reputation and trade in the eyes of right thinking members of the society generally, noting that the 1-5^th defendants are business moguls just as the plaintiffs and a possibility of business rivalry playing out cannot be ruled out. Article 33 of the Constitution provides:-

“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.”

36. Further, it is not in every case where the defence of justification or fair comment on matters of public interest or absolute or qualified privilege is pleaded that the court will deny an injunction in defamation cases. Each case has to be weighed on its own circumstances, especially in the new constitutional dispensation, considering the fact that the Defamation Act, Cap 36 Laws of Kenya has never been amended to align it to the 2010 Constitution. The court, therefore, in examining other decided cases must be careful not to be unduly influenced by other decisions which may not

37. In addition, I have examined the defences filed in court by the defendants and I have not seen any facts or particulars that the defendants have set out in their defence s of justification, fair comment on matters of public interest and or privilege. Order 2 Rule 7(2) of the Civil Procedure Rules provides that:

“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.”

 38. Thus, it is clear from rule 7(2) that the rule applies to a plea of justification and a plea of fair comment on a matter of public interest and requires a defendant to give particulars of facts constituting a plea of justification. Section 15 of the Defamation Act is also relevant. It provides:

“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.”

39. Further, 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 is in the discretion of the court, Iam satisfied that on affidavit evidence available, the plaintiffs have 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.

40. However, I find that this is  not a clear  case  and  there are no exceptional circumstances  to warrant  grant of mandatory  injunction at this stage  as those  who are  enlisted  to assist  in the enforcement  by way  of removal or deletion of the alleged  defamatory publications from the various websites and or twitter handles are neither  parties to this suit  nor government  law enforcement  agencies.  As was  stated  in Locabail   International Finance  Ltd v Agro  Export  and another  [1986] 1 ALL ER 901  where the court stated that:

“ A mandatory  injunction ought not to  be granted  on an interlocutory  application  in the absence  of special  circumstances  and then only in clear cases  either   where the  court thought  that the  matter ought  to be decided  at  once  or where  the  injunction was  directed at a simple  and  summary  act which  could easily  be remedied  or where  the defendants had attempted to steal a match  on the plaintiff.  Moreover, before  granting a mandatory  injunction, the court  had to feel a high sense  of assurance  that  at the trial  it would appear  that the injunction had been  rightly  granted, that  being a different  and higher  standard  than was  required  for  a prohibitory  injunction.”

41. In the instant  case, where the  alleged publications are either  in the  internet, websites, twitter or other electronic  or digital formats, I find that granting  the mandatory  orders sought  by the plaintiffs  would be tantamount  to issuing  final orders.  Accordingly, the prayer for a mandatory injunction fails.

42. For the foregoing reasons, only the prayer for an interlocutory prohibitory injunction succeeds as prayed in prayer vii of the Notice of Motion dated 31^st August, 2015.  The prayer for a mandatory injunction and for Google and Twitter to assist in enforcement is declined.  Costs of the application shall be in the main suit. 

43. The interlocutory prohibitory injunction herein granted shall remain in force for a period of twelve months only from the date hereof, unless extended with leave of court.  The parties are hereby directed to expeditiously prepare the suit for trial within the said 12 months from the date of this ruling.

Dated, signed and delivered in open court at Nairobi this 10th day of August 2016.

R.E. ABURILI

JUDGE

In the presence of:

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

Court Assistant: Adline