[2020] KEHC 4865 (KLR)
The court found that, despite the defendant's denial, it was apparent from the evidence and the defendant's own affidavit that she had published the posts in question on her Facebook account. While the final determination of whether the posts are defamatory is reserved for the substantive hearing, the court held...
Source-derived case information.
- Citation
- [2020] KEHC 4865 (KLR)
- Parties
- Plaintiff: DSO; Defendant: AJA
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Judgment Date
- 19 June 2020
- Case Number
- Civil Case 59 of 2020
- Procedural Posture
- Civil Case / Interlocutory Application for Injunction
- Outcome
- interlocutory injunction granted in part
- Judges
- JK Sergon
- Legal Topics
- Defamation, Interlocutory Injunctions, Social Media Liability
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
DSO
Plaintiff
AJA
Defendant
Procedural Posture
Civil Case / Interlocutory Application for Injunction
Legal Issues
- 1 Whether the defendant's social media posts constitute defamation against the plaintiff.
- 2 Whether the plaintiff has established a prima facie case for the grant of a temporary injunction.
- 3 Whether the plaintiff would suffer irreparable harm if the injunction is not granted.
Ratio Decidendi
The court found that, despite the defendant's denial, it was apparent from the evidence and the defendant's own affidavit that she had published the posts in question on her Facebook account. While the final determination of whether the posts are defamatory is reserved for the substantive hearing, the court held that the plaintiff had established a prima facie case for defamation and that his reputation was at stake, which could not be adequately compensated by damages. The court concluded that the balance of convenience favored granting a temporary injunction to restrain the defendant from further publishing or posting defamatory material about the plaintiff until the suit is determined.
Court Disposition
interlocutory injunction granted in part
Orders
- A temporary injunction is granted restraining the defendant, by herself or through her agents or servants, from publishing or posting or causing to be published or posted texts, words, or information defamatory of the plaintiff.
- The defendant shall bear the costs of the motion.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 59 OF 2020
DSO......................................PLAINTIFF/APPLICANT
VERSUS
AJA...............................DEFENDANT/RESPONDENT
RULING
1) The plaintiff/applicant took out the motion dated 21st April 2020 and sought for inter-alia
i. ..................Spent.
ii. ..................Spent.
iii. THAT pending the hearing and determination of this application or further orders of this hounourable court, the defendant to either by herself and/or through her agents or servants or any of them be restrained from publishing or posting or causing to published or posted texts, words or information defamatory of the plaintiff.
iv. THAT pending the hearing and determination concerning the plaintiff in this application the defendant be ordered to remove, pull down and delete all publications and all references to the plaintiff from her facebook page and all social media accounts that she owns.
v. THAT pending the hearing and determination of this application this honourable court be pleased to order the defendant to issue an unreserved and unconditional apology and retraction of the entire contents of her defamatory publications concerning the plaintiff.
vi. THAT the cost of this ex-parte application be provided for.
2) The motion is supported by two affidavits sworn by the plaintiff. When served, the respondent filed a replying affidavit she swore to oppose the motion. This court issued directions for the motion to be disposed of by written submissions.
3) I have considered the grounds stated on the face of the motion and the facts deponed in the affidavits filed in support and against the application. I have also considered the rival written submissions. It is the submission of the plaintiff/applicant that on diverse dates namely: 9. 10. 2020, 25. 02. 2020, 22. 03. 2020, 15. 04. 2020 and 16. 04. 2020 the respondent published on her facebok page posts that are defamatory of the plaintiff and that she has refused to pull down or stop the publications.
4) The plaintiff avers that the defendant published the defamatory publications concerning him with the sole intention of tarnishing the plaintiff’s reputation.
5) The plaintiff identified some of the offending publications asfollows:
15. 04. 2019: “This is it. I call it the certificate of deadbeats. This is to certify that Mr. DSO has successfully been appointed into the club of 10 years a deadbeat and the results are here to confirm that he is the biological father.”
On 16. 04. 2020 “So how is a clearear pattern of gender based violence and emotional abuse demonstrated.”
6) The plaintiff argued that the aforesaid publications amongst others injured and continues to injure his reputation hence the orders sought should be granted.
7) The respondent strenuously opposed the motion arguing that the same does not meet the threshold required in such cases. The respondent further denied having defamed the plaintiff in anyway. She argued that she made truthful expressions which do not amount to defamation.
8) She also argued that the confidentiality test agreement sheexecuted with the applicant did not prohibit her from asserting the truth and demanding for the applicant to be responsible for the maintenance and upkeep of the child she has with him.
9) Having carefully considered the rival submissions and the material placed before this court, it is clear in my mind that though the defendant denied having published the publications complained of it is apparent that she indeed published the same in her facebook account under her name. The defendant even attached copies of some of those posts to her replying affidavit.
10) On the face of it those posts may appear to be defamatory. However, the final and conclusive determination as to whether or not those posts are defamatory is a matter for the court which will hear the substantive suit. At this stage, the applicant is required to merely show a prima facie case and that unless the orders are granted he would suffer irreparable loss.
11) In my view, the publications cannot be justified at this stage.
The plaintiff’s reputation is at stake and may not be adequatelycompensated.
12) In the end I am convinced that the plaintiff has made out a prima facie case. At this stage I think the most appropriate order to issue is prayer (iii) of the motion. The other orders namely prayers (iv) and (v) should await the outcome of this suit. Consequently an order for temporary injunction is granted to restrain the defendant either by herself and or through her agents or servants or any of them from publishing or posting or causing to be published or posted texts words or information defamatory of the plaintiff.
13) The defendant to meet the costs of the motion.
Dated, signed and delivered virtually via Microsoft Teams at Nairobi this 19th day of June, 2020.
……………………….
J. K. SERGON
JUDGE
In the presence of:
…………………………………. for the Advocate/applicant
…………………………………. for the Client/Respondent