Analysis And Determination.
10.I have considered the application filed herein, the affidavits filed in support thereof, the replying affidavit by the defendant and the written submissions by Counsel for the plaintiff. The issue that arises for determination is if an order for an injunction should be granted.
11.In the supporting affidavit filed by the plaintiff, he deposed that he is a group member of “New Home in Kilifi” vide mobile number xxxx. That on July 12, 2021 through the defendant’s WhatsApp pages being xxxx-Adams Jembe Mbangha and Victor Katana Muganga-xxxx, respectively, the defendant published false and misleading publication in the group WhatsApp pages known as “New Home in Kilifi”, “Mtepeni Ward” and “Shimo la Tewa” and disseminated defamatory statements about him.
12.He averred that the defendant posted a picture of the plaintiff’s motor vehicle registration No KCN 644U Toyota Premio near a white and black painted house with a wooden fence and thereunder published in the said group WhatsApp page known as “New Home in Kilifi” the words – “spotted somewhere at Mali Gardens Guest House room No 25 , its (sic) 4.05pm and the owner of this vehicle an MCA from Kilifi County decided to take a break from his official duties to satisfy his unending sexual urge, the MCA with no ethics”.
13.The plaintiff further averred that the defendant caused another publication on January 24, 2022, through his WhatsApp page being xxxx. It was deposed that the defendant published false and misleading publications in the group WhatsApp page known as “Shimo la Tewa” and “Mtepeni all we want” as per the annexure marked as VGM-2 exhibited in the plaintiff’s supporting affidavit. The plaintiff contended that the contents of the said publication were understood to refer to the plaintiff.
14.It was averred by the plaintiff that he has been injured by the said malicious publications in his political career and his reputation has been brought into public scandal, odium and contempt. The plaintiff also stated that as a result of the said malicious publications, he has had marital issues with his wife, thus causing him great emotional distress. He averred that the defendant published the said words calculatingly, to increase the readership of the publications with a view to making mockery of the plaintiff and to ridicule him as a person of loose morals.
15.The defendant in his replying affidavit deposed that from a casual glance of the plaintiff’s annexed WhatsApp postages, there is no nexus between the source and/or generator of the printouts, the statements contained therein, the defendant, his number or name or any other link whatsoever. In addition, he stated that the printout of WhatsApp postages does not meet the threshold of admissibility of electronic and digital evidence hence such evidence lacks probative value to move the Court to issue a temporary injunction in a defamation case.
16.The defendant averred that while producing an electronic record to be admitted as evidence in these proceedings, the plaintiff has failed to adduce a certificate issued under the provisions of Section 106B of the Evidence Act, Cap 80 Laws of Kenya. The defendant urged this Court to find the printout of WhatsApp postages inadmissible as evidence in these proceedings.
17.It was stated by the defendant that his name and phone number do not appear anywhere in the said messages, and in fact, many of the messages appear as forwarded messages whose origin is neither disclosed nor authenticated. He contended that without admissible evidence to establish defamation, the plaintiff cannot demonstrate that he has a prima facie case against the defendant. The defendant also stated that the messages exhibited herein as evidence of defamation are not defamatory, but are expressed as counter opinions in a political and social debate, thus the plaintiff has not demonstrated how the said messages are defamatory of his character.
18.The defendant averred that the plaintiff’s suit is an attempt to gag the defendant’s freedom of expression and right to opinion, which are guaranteed under the Constitution, without adducing sufficient evidence to prove his claims. He further averred that the plaintiff could not suffer irreparable loss, and that he had failed to plead or demonstrate to the Court whether or not damages would compensate his loss, if any. The defendant asserted that if the Court is still in doubt, it should not grant the orders sought since the balance of convenience tilts in his favour.
19.The plaintiff filed an affidavit in response to the defendant’s replying affidavit where he deposed that the defendant had not refuted being the owner of mobile number xxxx. He further deposed that he had made a nexus between the defendant and the defamatory remarks as the names of the defendant appear in the printouts of the WhatsApp page. He averred that the suit and application herein are meant to safeguard his freedom of privacy, and if the orders sought are not granted, he shall suffer great loss as to his character and he risks failing to defend his seat as the MCA of Kilifi, Mtepeni Ward in Kilifi South.
20.An order for an interlocutory injunction is a discretionary remedy that is granted on the basis of evidence and sound legal principles. In an application for an interlocutory injunction the onus is on the applicant to satisfy the Court that it should grant an injunction. In the case of Giella vs Cassman Brown  EA 358, the Court set out the conditions necessary for an order of injunction to be granted as hereunder-i.The plaintiff must establish that he has a prima facie case with high chances of success;ii.That the plaintiff would suffer irreparable loss that cannot be compensated by an award of damages; andiii.If the court is in doubt it will decide on a balance of convenience.
22.The first test is whether the plaintiff herein has established a prima facie case with high chances of success. What constitutes a prima facie case was considered by the Court of Appeal in the case of Mrao Ltd v First American Bank of Kenya Ltd & 2 others  eKLR, where it was held as follows-
23.The plaintiff averred that the defendant published false and misleading publications in the group WhatsApp pages known as “New Home in Kilifi”, “Mtepeni Ward” and “Shimo la Tewa” and disseminated defamatory statement about the plaintiff. He further averred that the defendant made two defamatory statements against the plaintiff on July 12, 2021 and on January 24, 2022, which shows a clear repeat pattern of defamatory publications by the defendant against the plaintiff. The defendant on the other hand deposed that there is no nexus between the source of the printouts, the statements contained therein, the defendant, his phone number or name or any other link whatsoever since his name and phone number do not appear anywhere in the said messages.
24.The defendant contended that the printout of WhatsApp postages does not meet the threshold of admissibility of electronic and digital evidence thus such evidence lacks probative value to move the Court to issue a temporary injunction in a defamation case. He stated that the plaintiff failed to adduce a certificate issued under the provisions of Section 106B of the Evidence Act, Cap 80 Laws of Kenya. The defendant therefore urged this Court to find the printout of WhatsApp postages inadmissible as evidence in these proceedings. The plaintiff in response averred that the defendant is merely using the excuse of admissibility of the evidence tendered to defeat justice as he intends to continue publishing defamatory remarks against him.
25.The plaintiff’s application is heavily anchored on the printout of WhatsApp postages annexed to his supporting affidavit as proof that indeed the defendant did publish defamatory statements against the plaintiff with a malicious intent. The defendant relied on Section 106B of the Evidence Act, Cap 80 Laws of Kenya and urged this Court to find the printout of WhatsApp postages inadmissible as evidence in these proceedings.
26.Section 78A as read with Section 106B deal with admissibility of electronic and digital evidence and admissibility of electronic records respectively. The said provisions state as follows-(1)In any legal proceedings, electronic messages and digital material shall be admissible as evidence.(2)The court shall not deny admissibility of evidence under subsection (1) only on the ground that it is not in its original form.(3)…………………………………………………………..…(4)Electronic and digital evidence generated by a person in the ordinary course of business, or a copy or printout of or an extract from the electronic and digital evidence certified to be correct by a person in the service of such person, is on its mere production in any civil, criminal, administrative or disciplinary proceedings under any law, the rules of a self-regulatory organization or any other law or the common law, admissible in evidence against any person and rebuttable proof of the facts contained in such record, copy, printout or extract. (emphasis added).
27.Section 106B of the Evidence Act addresses the issue of admissibility of electronic records in the following words-(1)Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on paper; stored, recorded or copied on optical or electro-magnetic media produced by a computer (hereinafter referred to as “computer output”) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein where direct evidence would be admissible.(2)……………………………………………………………………..(3)...........................................................................................................(4)In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following –a.identifying the electronic record containing the statement and describing the manner in which it was produced;b.giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;c.dealing with any matters to which conditions mentioned in subsection (2) relate; andd.purporting to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate), shall be evidence of any matter stated in the certificate and for the purpose of this subsection it shall be sufficient for a matter to be stated to be the best of the knowledge of the person stating it.(5)……………………………………………………………………”
27.Sections 78A and 106B of the Evidence Act are read conjunctively and should be complied with when electronic evidence is relied on. In the present case, the plaintiff seeks to rely on printout of WhatsApp postages which constitute digital evidence. In addition, in order for the WhatsApp postages to be printed out, it would involve taking screen shots of the said messages and then sending them to an email address. Thereafter, the screen shots would be downloaded onto the hard disk of a computer and/or phone and then printed using a printer connected to the computer. The said process makes the said printouts to constitute electronic records.
29.The plaintiff failed to comply with the provisions of Section 78A as read with Section 106B of the Evidence Act. Having failed to meet the basic requirements for documentary evidence in support of the application herein, the said documents are inadmissible for want of compliance. Under the provisions of Section 107 of the Evidence Act that he who alleges must prove but in the application herein, the documents exhibited do not conform to mandatory legal provisions.
30.In view of the fact that the plaintiff cannot rely on the printout of WhatsApp postages to support his application, it cannot be ascertained whether or not the defendant made malicious defamatory statements against the plaintiff. This Court finds that the plaintiff has not established that he has a prima facie case with high chances of success. In view of the aforementioned shortcoming, this Court cannot determine if due to the defendant’s actions, the plaintiff shall suffer irreparable loss that cannot be compensated by an award of damages.
31.The upshot is that the application dated February 3, 2022 is devoid of merit and the same is dismissed. Costs of the said application shall abide the outcome of the main suit.
It is so ordered.