[2023] KEHC 25035 (KLR)

Gechemba v Lawrence Ongeta t/a Ching’ereru Borabu Band & another (Constitutional Petition E013 of 2023) [2023] KEHC 25035 (KLR) (8 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25035 (KLR)

Republic of Kenya

In the High Court at Kisii

Constitutional Petition E013 of 2023

TA Odera, J

November 8, 2023

IN THE MATTER OF THE ALLEGED VIOLATION AND INFRINGEMENT OF THE RIGHT TO PRIVACY PROTECTED UNDER ARTICLE 31 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF THE ALLEGED VIOLATION OF ARTICELS 2, 3(1), 19, 20, 24, 31 OF THE CONSTITUTION OF KENYA, 2010

Between

Mosembe Jane Gechemba

Petitioner

and

Lawrence Ongeta t/a Ching’ereru Borabu Band

1st Respondent

Phanice Bosibori Nyauma

2nd Respondent

Ruling

1. By a Notice of Motion filed under a Certificate of Urgency and dated 9. 10. 2023 and filed through the firm of J.M. Nyagwencha & Company Advocates and under Order 40 Rule 1 & 2, Order 50 Rule 1 of the Civil Procedure Rules, 2010 and Sections 1A, 1B, 3, 3A & 63(e) of the Civil Procedure Act, the Petitioner/Applicant sought the following orders: -1. Spent.2. That pending the hearing and determination of this application, a mandatory injunction do issue compelling the Defendants/Respondents by themselves, their agents, servants and/or employees to pull down, remove and erase from YouTube and all other online platforms the video and the audio of the song titled Ogosira Kwa Erick Kabuna Nyauma.3. That pending the hearing and determination of this suit, a mandatory injunction do issue compelling the Defendants/Respondents, their agents, servants and/or employees to pull down, remove and erase from YouTube and all other online platforms the video and the audio of the song titled Ogosira Kwa Erick Kabuna Nyauma.4. That pending inter parties hearing and determination of this suit, a temporary injunction do issue restraining the Respondents, either by themselves, their agents, family members, relatives and/or any other person whomsoever acting under their instructions from uploading, writing, printing, publishing, posting, airing, playing and sharing on any platform whatsoever the video and the audio of the sing titled Ogosira Kwa Erick Kabuna Nyauma.5. That pending inter parties hearing and determination of this case, a temporary injunction do issue restraining the Respondents, either by themselves, their agents, family members, relatives and/or any other person whomsoever acting under their instructions from uploading, playing and or sharing on any platform whatsoever the video and the audio of the song titled Ogosira Kwa Erick Kabuna Nyauma.6. That the costs of this application be provided for.7. That such further and/or any other orders be made as the court may deem fit and expedient.

2. The grounds of the application are that the 1st Respondent, under the instructions of the 2nd Respondent wrote a song and made a video titled Ogosira Kwa Erick Kabuna Nyauma and used the Petitioner’s image and name and those of her son, P. M.’s, without her consent thus contravening her constitutional right to privacy. In the song, the Petitioner’s information relating to her family and private affairs were disclosed without consent. When the 2nd Respondent failed to convince the Petitioner to surrender the property of the deceased to her family and failed to convince the Petitioner to surrender custody of the Minor, P.M., she instructed the 1st Respondent to write a song, record a video and publish on YouTube and other online accounts to spread the lie that the Petitioner tricked the Deceased and misled him into misusing his property on the Petitioner’s parents. In the song, the Respondents alleged that the Petitioner was still using and running some businesses started by the deceased. The Respondents declined to pull down the audio and the video despite the Petitioner’s demands. The same was causing the Petitioner a lot of psychological torture and exposing her private life to the public without her consent.

3. The Application was supported by an Affidavit sworn by the Petitioner on 9. 10. 2023. She deponed that the 1st Respondent, under the instructions of the 2nd Respondent wrote a song Ogosira Kwa Erick Kabuna Nyauma and used her image and name without her consent thus contravening her right to privacy. She deponed that the same was done in bad faith by the 2nd Respondent. She further deponed that the video and audio were causing herself and her family immense psychological torture. She deponed that the Respondents were also using the Minor’s, P.M., information and also exposing him.

4. I note that there were no annextures identified in the Affidavit, but the Petitioner/Applicant attached annexture MJG1 which was a photograph of unidentified people. The Petitioner/Applicant also attached a Certificate of Electronic Evidence with respect to the photograph being a screenshot from YouTube, WhatsApp and text messages. The Petitioner/Applicant also attached Annexture MJG 2 titled “Translation of a song by a Music Band called ‘Chigerer Chia Borabu’ titled ‘Ogosira Gwa Erick Kabuna Nyauma’ from Ekigusii language to English language together with a Certificate of Translation and dated 13. 10. 2023.

5. The Application was served upon the Respondents. However, the Respondents have not participated in these proceedings to date.

Determination 6. I have considered the Application herein.

7. The Petitioner/Applicant principally seeks 2 primary orders being a mandatory injunction and a temporary injunction. I will handle each under a separate head.

Mandatory Injunction 8. A mandatory injunction, otherwise a positive injunction, is an injunction directed at a person, party, institution, body or organ to compel it to do something. In the case of Ramadhan Salim v Evans M. Maabi t/a Murhy Auctioneers & Another [2016] eKLR, the Court of Appeal cited its decision in New Ocean Transport Limited & Another v Anwar Mohamed Bayusuf Limited [2014] eKLR where it stated as follows: -“We appreciate that an injunction is an order of the Court directing a party to the proceedings to do something or refrain from doing a specified act. It is granted in cases in which monetary compensation does afford an inadequate remedy to an injured party. See Halsbury’s Laws of England, 3rd Edition, Vol. 21 at pg. 343. Basically there are 2 types of injunction; positive and negative. The positive injunction would direct a party to do something whereas a negative one will restrain such a person from doing something. Among the positive injunction will be mandatory injunction. This injunction orders some act to be done. Part of this family is the restorative injunction being sought by the applicants in the instant application. This type of injunction requires the person against whom it is directed to undo a wrongful act, to restore the status quo ante so that the damage does not continue. Then there is the mandatory injunction per se which compels a party to carry out some positive act to remedy a wrongful omission. As for negative injunctions, these would include prohibitory, perpetual, interlocutory and Quia Timet injunctions. [Emphasis added]

9. This Court in Sospeter Nyakundi Nyangau & Another v Ecobank Kenya Limited & 2 Others [2022] eKLR, cited the decision of the Court of Appeal in Joseph Kaloki t/a Royal Family Assembly v Nancy Atieno Ouma [2020] eKLR where the court cited the case of Kenya Breweries Limited & Another v Washington O. Okeyo [2002] eKLR where it was held that “mandatory injunction can be granted on an interlocutory application as well as at the hearing but should not normally be granted in the absence of special circumstances but that if a case is clear and which the court thinks it ought to be decided at once, a mandatory injunction will be granted at an interlocutory application.

10. Again, the Court cited the decision of the Court of Appeal in Alex Wainaina t/a John Commercial Agencies v Janson Mwangi Wanjihia [2015] eKLR where the Court stated as follows: -“This court has previously held that in considering the first principle, the trial court must avoid the temptation of making conclusive findings of fact before they are tested in cross examination. A prohibitory injunction, rather than a mandatory injunction which is considered on different principles, is meant to forestall the happening of an event. In the case of Stephen Kipkebut T/A Riverside Lodged and Rooms v Naftali Ogola [2009] eKLR the court held that an order which results in the granting of a major relief claimed in the suit ought not to be granted at an interlocutory stage.”

11. The test therefore is that the Petitioner/Applicant herein had the duty of establishing the existence of special circumstances, the existence of a clear case and a case which the court considers ought to be decided at once.

12. Every person has a right to privacy Under Article 31 of the Constitution In the case of Jessicar Clarise Wanjiru v Davinci Aesthetics & Reconstruction Centre & 2 Others [2017] eKLR, where the Court extensively dealt with right of publicity. The Court referred to The Right of Privacy in Nigeria Review of Nigerian Law and Practice Vol. 1(1) 2007 where privacy is defined as “…the right to the individual to be protected against intrusion into his personal life or affairs, or those of his family, by direct physical means or by publication of information.

13. Without going into the merits of the matter, on the face of it, the petitioner alleged that her images , personal details and those of the minor are disclosed in the song without her consent and she exhibited the photographs and the translation of the song. This is not challenged and I find that the petitioner has established a prima facie case against the respondents at this stage.

Temporary Injunction 14. In the decision of the Court of Appeal in Nguruman Limited v Bonde Nielsen & 2 Others [2014] eKLR, the Court of Appeal restated the test for grant of interlocutory injunctions as follows:a.Establish his case only at a prima facie level,b.Demonstrate irreparable injury if a temporary injunction is not granted, andc.Ally any doubts as to (b) by showing that the balance of convenience is in his favour.

15. The Court further stated that the three conditions are to be applied as “separate, distinct and logical hurdles which the applicant is expected to surmount sequentially.”

16. The Court further went into great detail to define what a prima facie case is. The Court held thus:“” Prima facie” is a Latin phrase for “at first sight”, whose legal meaning and application has been the subject of varying interpretation by courts in many jurisdictions. Phrases like “a serious question to be tried”, “a question which is not vexatious or frivolous”, “an arguable case” have been adopted to describe the burden imposed on the applicant to demonstrate the existence of “prima facie case”. The leading English House of Lords case of the American Cyanamid Co. Ethicon Ltd. [1975] AC 396 is a case in point. The meaning of “prima facie case””, in our view, should not be too much stretched to land in the loss of real purpose. The standard of prima facie case has been applied in this jurisdiction for over 55 years, since the decision in Ramanlal Trambaklal Hatt v Republic [1957] E.A. 332. Recently, this court in Mrao Ltd. v First American Bank of Kenya Ltd. & 2 Others [2003] KLR 125 fashioned a definition for prima facie case in civil cases in the following words:In civil cases, a prima facie case is 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 to call for an explanation or rebuttal from the latter. A prima facie case is more than an arguable case. It is not sufficient to raise issues but the evidence must show an infringement of a right, and the probability of success of the applicant’s case upon trial. That is clearly a standard, which is higher than an arguable case.”We adopt that definition save to add the following conditions by way of explaining it. The party on whom the burden of proving a prima facie case lies must show a clear and unmistakable right to be protected which is directly threatened by an act sought to be restrained, the invasion of the right has to be material and substantive and there must be an urgent necessity to prevent the irreparable damage that may result from the invasion. We reiterate that in considering whether or not a prima facie case has been established, the court does not hold a mini trial and must not examine the merits of the case closely. All that the court is to see is that on the face of it the person applying for an injunction has a right which has been or is threatened with violation. Positions of the parties are not to be proved in such a manner as to give a final decision in discharging a prima facie case. The applicant need not establish title it is enough if he can show that he has a fair and bona fide question to raise as to the existence of the right which he alleges. The standard of proof of that prima facie case is on a balance or, as otherwise put, on a preponderance of probabilities. This means no more than that the Court takes the view that on the face of it the applicant’s case is more likely than not to ultimately succeed.How do all these principles, conditions and guidelines relate to this appeal? A temporary injunction would issue under Order XXXIX of the repealed Civil Procedure Rules in the following instances: If it is proved that while a suit is pending determination any property in dispute in the suit is in danger of being wasted, damaged, alienated or wrongfully sold in execution of a decree by any party to the suit, or the other party intends to remove or dispose of his property to avoid execution, or where the other party threatens to commit a breach of contract or other injury arising out of contract or related to a property or right.”

17. That being said, I will now interrogate the Petitioner/Applicant’s application in light of the foregoing. Has the Petitioner/Applicant established a prima facie case?

18. It is not denied at this stage that the video was uploaded on YouTube I have seen the translation as per the Petitioner/Applicant’s Annexture MFG2. Indeed, in the Nguruman Case, the Court of Appeal made it abundantly clear that it is not enough to raise issues but the evidence must show an infringement of a right. The Court also held that the applicant must show the act directly threatening their right. The Petitioner/Applicant has, therefore, established a prima facie case.

19. On whether the Petitioner/Applicant might otherwise suffer an irreparable injury which cannot be adequately remedied by damages, I find that the Petitioner/Applicant deponed that she was psychologically tortured by the video and the allegations therein. In this digital era, a video posted on an online platform is susceptible to be viewed by the entire world. The Petitioner/Applicant alleged that there were falsehoods perpetrated in the video as well as her personal details and those of her minor son. I therefore find and hold that the damage she stands to suffer cannot be remedied by damages and an injunction should issue.

20. The balance of convenience obviously tilts in favour of the Petitioner/Applicant. Article 20 of the Constitution of Kenya provides that the Bill of Rights applies and binds all State Organs and all persons. That said, justice then demands that the video in question is pulled down pending the hearing and determination of the main Petition.

21. In the end, I find that the Petitioner/Applicant’s Application dated 9. 10. 2023 has merit and I proceed to allow it.

22. The Respondents shall bear the costs of the Application.

23. Mention on for pre-trial directions Mention notice to issue .

DATED, DELIVERED AND SIGNED AT KISII THIS 8TH DAY OF NOVEMBER 2023. T.A ODERAJUDGEIn the presence of:Mr. J.M. Nyagwencha for the Petitioner/ ApplicantRespondent in Person