[2022] KEHC 12053 (KLR)

Gachemba v Arjan & 3 others (Civil Case E078 of 2022) [2022] KEHC 12053 (KLR) (Civ) (7 July 2022) (Ruling)

Neutral citation: [2022] KEHC 12053 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Civil

Civil Case E078 of 2022

JN Mulwa, J

July 7, 2022

Between

Yubrine Moraa Gachemba

Applicant

and

Naran V Arjan

1st Respondent

Michael Gitaru Kigathi

2nd Respondent

Samwel Mugambi Manyara

3rd Respondent

Firmbridge Limited

4th Respondent

Ruling

1. Before court is a Notice of Motion dated May 9, 2022 brought by the applicant under articles 28 and 31 of the 2010 Constitution of Kenya and all other enabling provisions of the Law. The applicant is seeking an order that the respondents be stopped from using her image and/or likeness in their campaign billboards and any other medium within the country and/or internationally whether print, electronic or broadcasting without her express consent. She is also prayed that the respondents be compelled to issue her an unequivocal written apology.

2. The application is based on the grounds on the face of the motion as well as the Supporting and Further Affidavits of the applicant. She avers that she is a medical doctor practicing in the Republic of Kenya. The respondents placed numerous campaign billboards along Lang'ata road Mugumo'ini Ward containing her images. The use of her image in the billboards has violated the Hippocratic Oath she took as a medical doctor and the moral ethics of medicine in general. The respondents actions are a threat to her source of income and professional as well as public reputation as her patients and colleagues may demean her or withdraw from her services upon seeing her image on the billboard.

3. The 1st respondent responded by way of a Replying Affidavit sworn on May 16, 2022. He averred that he is an aspiring candidate for the Member of County Assembly, Mugumo'ini Ward in Lang'ata Constituency. His designer downloaded the applicant’s image from a public website on the internet for purposes of advertising his vision for Mugumo’ini Ward on matters health. The download was done in good faith and without any intention to defame or injure the applicant’s reputation. The applicant’s image was used to echo the sentiments she expressed to Brian Otieno for New York Times. He blotted out the applicant’s image from the billboard immediately she raised an objection to the use of her image. He confirmed and undertook never to use the applicant’s image in any way again without her consent and approval.

4. The 2nd, 3rd and 4th respondents also responded vide a joint Replying Affidavit sworn by the 2nd respondent herein who is a director of the 4th respondent alongside the 3rd respondent. He averred that the 4th respondent is involved in the business of leasing advertising space and it’s their client, the 1st respondent herein, who developed his own artworks and approached them to provide space for advertising which they did. Immediately the complaint was brought to their attention on May 5, 2022, they informed the 1st applicant and immediately proceeded to remove the artworks and the same was communicated to the applicant on May 7, 2022 but she still went ahead to file a suit against them.

5. The application was canvassed by way of written submissions which the court has duly considered. The parties have tendered comprehensive submissions encompassing issues that meant to be determined in the main suit. However, since the suit is yet to be heard, the court will only be concerned with two issues at this interlocutory stage and will not delve into the merits of the suit. The issues are:a.Whether the applicant has made out a case for the grant of an interlocutory injunction pending the hearing and determination of the suit; andb.Whether the respondents should be ordered to issue an unequivocal apology to the applicant at this interlocutory stage.

Whether the applicant has made out a case for the grant of an interlocutory injunction pending the hearing and determination of the suit. 6. The applicant submitted that she has been defamed by respondents. She contended that as a result of the respondents’ use of her image, she has been exposed to public scrutiny and her reputation as well as integrity have been put to question as she has been associated with a political agenda which she has no knowledge or interest in.

7. On the other hand, the 1st respondent maintained the image was used in good faith. Further, he submitted that the billboards have since been obliterated and there is no intention, now or in the remaining electioneering period, of using her images any more. On the part of the 2nd to 4th respondents, it was contended that they were just but innocent disseminators of information. They also argued that the injunctive order sought has been overtaken by events since the bill boards containing the applicant’s images have already been removed.

8. The conditions for the grant of interlocutory injunctions were set out in the case of Giella v Cassman Brown Limited [1973] EA 358 as follows:“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 must otherwise suffer irreparable injury, which would not adequately be compensated by an award for damages. Thirdly if the court is in doubt, it will decide an application on the balance of convenience.”

9. However, it is noteworthy that interlocutory injunctions in defamatory cases are normally granted with caution. In the case of Micah Cheserem v Immediate Media Services & 4 others [2000] eKLR Justice Khamoni (as he then was) had this to say in that regard:“Application for interlocutory injunction in defamation cases are treated differently from ordinary cases because they bring out a conflict between private and public interest. Though the conditions applicable in granting interlocutory injunctions set out in Giella vs Cassman Brown & Co Ltd [1973] EA 258 generally apply. In defamation cases those conditions operate in special circumstances. 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 (emphasis mine). The court must be satisfied that the words or matter complained of are libelous and also that the words are so manifestly defamatory that any verdict to the contrary would be set aside as perverse. 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.”

10. Has the applicant established a prima facie case? According to the Court of Appeal in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] eKLR, a prima facie case is one in which a court looking at the material placed before it by a party, will conclude that there is a right which has apparently been infringed by the opposite party as to call for an explanation from the latter. In the instant case, it is not disputed that the respondents published the applicant’s image on various billboards in Mugumo’ini Ward in Langata. As such, the court finds that the applicant has established a prima facie case.

11. On irreparable loss, the court is guided by the case of Brigadier Arthur Ndoj Owuor v Standard Limited [2011] eKLR where the court while allowing an application for injunction in a defamation case held that“Once reputation is lost, in my 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.”

12. Guided by the above authorities, it is my considered view that there would be substantial risk of grave injustice if the injunction is not granted. If the applicant’s reputation is damaged in view of the use of her images on the campaign billboards, she stands to suffer irreparable loss which cannot be adequately compensated in damages. In view of the foregoing, it is obvious that the balance of convenience tilts in favour of the Applicant. The applicant’s prayer for an interlocutory injunction is therefore merited.

Whether the respondents should be ordered to issue an unequivocal apology to the applicant at this interlocutory stage. 13. In her submission, the applicant demanded from the respondents an unequivocal apology published in equal prominence and manner as the alleged defamatory billboards. On the other hand, the 1st respondent submitted that the court ought to hear and evaluate evidence and make a finding on culpability before issuing this order. It was his submission that the issuance of apology is not an interim relief and he urged the court not to accede to the prayer at this stage.

14. I am in agreement with the 1st respondent that an apology cannot be issued at this interlocutory stage. Doing so would amount to an admission of liability yet the respondents have maintained that the applicant was not defamed.

Conclusion 15. For the foregoing, the applicant’s Notice of Motion dated May 9, 2022 partly succeeds.

16. To that extent then, an order of temporary injunction is hereby issued to restrain the respondents from using the image and/or likeness of the applicant herein in their campaign billboards and any other medium within the country and/or internationally whether print, electronic or broadcasting without her express consent pending the hearing and determination of the suit.

17. The costs of the application shall be in the cause.Orders accordingly.

DATED SIGNED AND DELIVERED THIS 7TH DAY OF JULY 2022. J N MULWAJUDGE