[2023] KEHC 25534 (KLR)

Eddie Jatianga Amadi & Benjamin Osundwa Amadi t/a Amadi & Amadi Advocates v Royal Media Services Ltd & another (Civil Suit E134 of 2023) [2023] KEHC 25534 (KLR) (Civ) (21 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25534 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Suit E134 of 2023

JN Mulwa, J

November 21, 2023

Between

Eddie Jatianga Amadi & Benjamin Osundwa Amadi t/a Amadi & Amadi Advocates

Plaintiff

and

Royal Media Services Ltd

1st Defendant

Seth Olale

2nd Defendant

Ruling

1. By an Application dated 19/7/2023 the Plaintiff sought the following Orders:1. Spent2. Spent3. Spent

2. That pending the hearing and determination of the main suit, the 1st Respondent, its affiliated media stations, or through all its social media platforms, Facebook, Tiktok, YouTube and Twitter, be restrained from further airing or continuing to disseminate any slanderous or libelous materials they aired on their prime-time news on Citizen TV on 19th May 2023 at 7pm and 9pm respectively.

3. That pending the hearing and determination of this main suit, the 1st Respondent, its affiliated media stations, or otherwise be ordered to pull down the libelous and slanderous material relating, or referring, to the Applicant herein and was aired on their prime-time news on 19th May 2023 on Citizen TV at 7pm and 8pm respectively from all its platforms including its social media pages, Facebook, Twitter, YouTube and Tiktok.6. That costs of this application be borne by the Respondents.

4. The Application is brought under Order 40 Rule 1,2,3,4 and 10 and Order 51 Rule 1 of the Civil Procedure Rules and supported by an Affidavit sworn on 19/7/2023 by Eddie Jatianga Amadi one of the Applicants and grounds stated at the face of the application.

5. On 24/7/2023 interim orders restraining the 1st Respondent/ Defendant were issued by the court restraining the said Defendant from further airing or continuing to disseminate and or further airing any slanderous or libelous materials aired on its prime-time news on citizen TV on 19/5/2023 at 7pm and 9pm pending hearing and determination of the suit. What is left for determination is therefore prayers No.4,5 and 6 stated above.

6. In opposition to the Application, the Defendants/Respondents filed Grounds of Opposition dated 26/7/2023 and list of authorities as well as submissions dated 30/8/2023. The Plaintiffs too filed their submissions and list of authorities both dated 1/9/2023.

7. In the proceedings, the Plaintiff is represented by Mbati, Kirui & Associates Advocates while Kamau Kuria & Company Advocates represents the Defendants.

8. The impugned publication was allegedly aired by the Defendants in their social media pages, Youtube, twitter, Tiktok and Facebook under the following headlines:“sakata ya dhahabu hewa”msajili mkuu wa mahakama anne amadi ajipata mashakani”amadi anahusishwa na sakata ya dhahabu hewa ya kash 89m’kampuni moja ya dubai inadai kulipa pesa bila kupekezwa dhahabu’akaunti za amadi na za mwanawe brian ochieng zimefungwa’amadi’s accounts frozen’court freezes registrar ann amadi’s bank accounts’court also freezes ann amadi’s son’s accounts ‘UAE firm claims to have paid the amadi’s for gold”

9. The Applicants stated that the 1st Respondent while referring to the alleged law firm Amadi and Associates Advocates, published www.amadiadvocates.com the Applicant’s website instead.

10. The Respondent on the other hand has stated that they have a societal obligation to report to the public, matters of public interest which is entrenched in Article 33 and 34 of the Constitution and the prayers sought in the Application unjustifiably and arbitrarily abridge media freedom and that the balance of convenience is in favour of the 1st Defendant in that the broad/blanket orders will have a gagging effect on the 1st Defendant which will curtail its press freedom under Articles 33 and 34 of the Constitution. The Respondent further denied that the orders sought are too broad and that the Applicant has not specified what portion of the alleged defamatory publication it wishes not to be aired.

11. The issues that fall for determination at this stage in the courts are two: -a.Whether the Applicant has established a prima facie case with probability of success to warrant a grant of a temporary injunction.b.Whether the Applicant shall continue to suffer irreparable loss and damage if the injunctive orders are denied.

12. In their statement of defence dated 17/02/2022 which I have perused, the Respondents deny all and singular the allegations by the Applicant, and states that the statements so published did not refer to or concern the Applicant and also the contend that the alleged defamatory article published contained insufficient reference to the Plaintiff that can sustain an action for defamation and, therefore contends that it is not liable in defamation to the Plaintiff. The Respondents further stated that the publication is privileged and a fair comment on a matter of public interest and will rely on the defences of qualified privilege and a fair comment on a matter of public interest.

13. The Applicant deponed that the publication at its website implied that it was involved in the allegations, which is not true and therefore the Respondents failed to undertake due diligence by calling the Applicant in order to verify the same, despite their office number being listed on the website itself.

14. The tests that a party must meet for grant of injunctive orders are well stated in the celebrated case of Giella vs. Cassman Brown [1973] EA 358, and which our courts religiously cite in matters of injunctions thus;a.A prima facie case with a probability of successb.The likelihood that the Applicant might suffer irreparable injury which would not adequately be compensated by an award of damages.c.If the court is in doubt, it will decide an application on the balance of convenience.

15. In the case Hon. Ukur Yatani vs. Hon. Rehema Dida Jaldes [2021] eKLR the court held that“…..over and above the test set out in Giella’s case in defamation cases, the court’s jurisdiction to grant an injunction is exercised with the greatest caution so that an injunction is granted only in the clearest possible cases.… normally the court would not grant an interlocutory injunction when the defendant pleads justification or fair comment because of the public interest that the truth should be out and the court aims to protect a humane, responsible truthful and trustworthy defendant…. that in a tort of defamation the court is therefore under a duty to balance the public interest with respect to information concerning the manner in which its affairs are being administered with the right to protect the dignity and reputation of individuals.’’

16. I agree with the Applicant that indeed the publication at its website would imply to readers thereof that it was involved in the alleged gold scandal. It is also evident that the names of both firms of Advocates are similar in their first names, and any ordinary man walking in the streets and roads anywhere with average intelligence would tend to think that indeed that the law firms are one and the same, and publishing its link would always direct the readers of the article to their website which will make them think that they were the ones involved in the said gold scam.

17. As to irreparable loss or damage to the Applicant, there is no doubt that indeed the alleged publication and the Applicant’s website was published to the public, the Applicant’s reputation and character is on the line, as it alleges that its clients and especially their international clients who have access to their website have been able to view the libelous publication and have since shunned them. The Respondent on the other hand believes that the effects of the words as defamatory to the Applicant is a matter for the trial, and cannot be decided on the basis of affidavit evidence.

18. In my view the Applicant ought to prove that the allegations leveled against its law firm are false by providing all materials relevant to disapprove the allegations which can only be done during the hearing of the case when evidence may be produced. In the meantime, and to safeguard further character assassination, if at all, the court finds that pending hearing and determination of the case, an order of injunction is appropriate. In the case of Brigadier Arthur Ndoj Owuor v. Standard Limited [2011] eKLR the court while allowing the Plaintiffs application for injunction held that;“Once reputation is lost, in view, monetary damages might not be an adequate compensation. Monetary damages might be a consolation, yes, but they will never be adequate compensation for lost reputation. In the eyes of the public, once a person’s reputation has been damaged it will remain in the memory possibly throughout his life.”

19. While the Respondent's publication of the alleged defamatory article may be a fair, just, and accurate commentary on events and general public knowledge as it claims, the publication at and of the Applicant's website may also have harmed the Applicant's reputation, and continuing with the same until the court determines its merits could worsen the situation by causing more harm and prejudice, coming to the conclusion that the balance of convenience falls in favour of the Applicant.

20. In light of the above I find and hold that the Applicant has met the ingredients necessary for the grant of an injunction. Consequently, the motion dated 19th July 2023 is allowed, giving rise to the following orders:a.That pending the hearing and determination of this suit an order is granted restraining the 1st Respondents, its affiliated media stations, through its social media platforms, Facebook, Tiktok, YouTube and Twitter, be and from further airing or continuing to disseminate any slanderous or libelous materials they aired on their prime-time news on Citizen TV on 19th May 2023 at 7pm and 9pm respectively.b.That pending the hearing and determination of this suit an injunction order is granted compelling the 1st Respondent, its affiliated media stations, to pull down the libelous and slanderous material relating, or referring, to the Applicant herein and was aired on their prime-time news on 19th May 2023 on Citizen TV at 7pm and 8pm respectively from all its platforms including its social media pages, Facebook, Twitter, YouTube and Tiktok.c.Costs of the motion to abide the outcome of the Suit.

DELIVERED DATED AND SIGNED AT NAIROBI THIS 21STDAY OF NOVEMBER, 2023. JANET MULWAJUDGE.