https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9681

Ghalinle & another v Kanchory (alias Saitabao Kanchory Mbalelo) (Civil Case E040 of 2026) [2026] KEHC 9681 (KLR) (Civ) (25 June 2026) (Ruling) Neutral citation: [2026] KEHC 9681 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Case E040 of 2026 SN Mutuku, J June 25, 2026 Between Fatuma Sulekha Issa Osman Ghalinle 1st Plaintiff Bachir Mohamed Mahamoud 2nd Plaintiff and Saitabao Kanchory (alias Saitabao Kanchory Mbalelo) Defendant Ruling The Application 1.Fatuma Sulekha Issa Osman Ghalinle and Bachir Mohamed Mahamoud (the 1st and 2nd Applicants) instituted the present suit against Saitabao Kanchory (alias Saitabao Kanchory Mbalelo) (the Respondent) accompanied by the Notice of Motion dated 23.02.2026 (the Motion) anchored on Sections 1A, 1B, 3A and 63 of the Civil Procedure Act (CPA); Order 40, Rules 1, 2 and 3 of the Civil Procedure Rules (CPR); and Article 28 of the Constitution of Kenya, seeking the following orders:a.Spent.b.Pending the hearing and determination of this application, there be issued a Temporary Injunction restraining the Defendant, Saitabao Kanchory (alias Saitabao Kanchory Mbalelo), whether by himself, his servants, agents, employees, assigns or otherwise howsoever, from:i.Publishing, posting, uploading, broadcasting, disseminating, communicating, or causing to be published any further statements, posts, tweets, or publications that are defamatory of the Plaintiffs or either of them, or that make any reference to Bayside Limited in connection with the matters complained of herein, on the social media platform X (formerly Twitter) under the username @Saitabao or any other social media platform, website, or online medium; andii.Making or causing to be made any further defamatory references to the Plaintiffs or either of them, whether by name, implication, or otherwise, or any reference to Bayside Limited that expressly or by implication attributes dishonesty, fraud, criminal conduct or mismanagement to the Plaintiffs or either of them, in any publication accessible to the public.c.Pending the hearing and determination of the main suit, there be issued a Temporary Injunction in the terms set out in Order 2 above.d.The Defendant do forthwith delete and remove from his verified X account (@Saitabao) and from all other social media platforms, websites, and online publications, the following posts, being:i.The First Publication published on or about 11th February 2026, composed of the following words “You may all have seen the unfinished multistorey building on Lenana Road opposite Sifa Towers. The developer Bayside Limited whose directors are Fatuma Osman and Bashir Qandid took people’s money and diverted to unrelated projects including personal use causing the project to stall since 2018. I happen to be one of the affected investors but you all know I like a good fight. They will pay through their small noses.”ii.The Second Publication published on or about 11th February 2026, composed of the following words “This building has been like this for 9 years. My office was to be on the 7th Floor with a breathtaking view of Nairobi’s skyline. 9 years down the line I am still renting office space and some crooked developers think they can refuse to refund my money. Someone please tell Fatuma Sulekha Issa Osman Ghalinle & Bachir Mohamed Mahamoud of Bayside Limited they are messing with the wrong nigga.”iii.The Third Publication published on or about 11th February 2026, composed of the following words “This is how they lured us in 2017. Construction has stalled since 2018 despite the developers Fatuma Sulekha Issa Osman Ghalinle & Bachir Mohamed Mahamoud of Bayside Limited taking significant sums of money from investors. I have commenced insolvency proceedings to liquidate the company and sell the property by public auction. Stay tuned.”iv.The Fourth Publication published on or about 9th February 2026, included court papers and statutory demand filed in Insolvency Cause No. HCCOMMIN E016 of 2026, together with mocking commentary stating inter alia: “Attaching my tweets as Exhibits in Court is not going to help you Fatuma Sulekha Issa Osman Ghalinle & Bachir Mohamed Mahamoud of Bayside Limited. But since you clearly have nothing to say in court I’ll give you many more tweets.”v.All and any other defamatory publications or posts concerning the Plaintiffs or either of them, or concerning Bayside Limited in connection with the matters the subject of this suit.e.The costs of this application be provided for.f.Such further and other relief as this Honourable Court may deem fit and just to grant. sic 2.The Motion is supported by grounds stated on the face of it and in the Supporting Affidavit of the 1st Applicant sworn on the 23rd February 2026. It is the averment of the 1st Applicant that both she and the 2nd Applicant are Directors of Bayside Limited (the Company), whereas the Respondent is an Advocate of the High Court of Kenya, practicing in the name and style of Kanchory & Co. Advocates. That a commercial dispute arose between the company and the in respect of a sale agreement between the parties, which led to Insolvency Cause No. HCCOMMIN E016 OF 2026 at the Commercial & Tax Division, which suit is independent of, and separate from that commercial dispute. 3.That during the pendency of the Insolvency Cause, the Respondent published various defamatory statements concerning the Applicants herein and the Company, as particularized in the Motion. That the various defamatory publications are false and intended to lower and injure the Applicants’ respective reputations. That in addition, the said publications connote malice on the part of the Respondent and that no apology has so far been rendered by the Respondent. 4.The 1st Applicant deposed, further, that the applicants have established a prima facie case against the Respondent and that unless the injunctive orders sought in the instant Motion are granted, the Respondent will continue to make related defamatory publications concerning them, thereby threatening further injury to their reputations and bringing irreparable harm upon them. It was deposed that the balance of convenience tilts in favour of granting the interlocutory injunctive orders sought. Replying Affidavit 5.The Motion is opposed by the Respondent through a Replying Affidavit sworn on 11.03.2026 in which it is deposed that the instant Motion is sub judice under Section 6 of the CPA, for reasons that the Applicants have a pending Insolvency Cause, yet to be determined, which raises similar issues. That it is thus clear that the Motion has been brought with unclean hands and as an attempt at forum shopping and that the Motion is an abuse of the court process. 6.It was further deposed in the reply that upon executing the sale agreement referenced hereinabove, the Respondent paid a sum of Kshs. 4,413,440/- towards purchase of the development known as Lenana Road 761. That the total purchase price for the property was Kshs. 14,400,000/-. That despite receiving various sums of money from various investors, the Applicants and the Company caused the development project to stall for a period of over 9 years. That prior to him instituting the Insolvency Cause, he tried to obtain a refund of the deposit sum from the Applicants, to no avail. 7.The Respondent has therefore deposed that the impugned publications are anchored on truth and justification. That the Applicants have not demonstrated a prima facie case with chances of success, nor have they demonstrated the irreparable loss they stand to suffer if the injunctive orders sought are denied and that the balance of convenience tilts in favour of dismissing the Motion. 8.The Respondent has deposed that the Applicants are similarly not entitled to the mandatory injunction sought at this stage, adding that no malice has been proved against him and that in addition to the defence of truth/justification, the Respondent is equally pleading the defence of absolute privilege as concerns the Insolvency Cause. 9.In a rejoinder, the 1st Applicant filed a further affidavit sworn on 8.05.2026 in which she has deposed, inter alia, that the sub judice rule does not apply in the Instant Motion since the injunctive orders sought in the Insolvency Cause are strictly limited to insolvency related publications. That, the Applicants are suing in their personal capacities, while in the Insolvency Cause, the Company is sued in its capacity as a juridical person. That the causes of action in both instances are distinct and unrelated and that the stalling of the development project was occasioned by default on the part of many purchasers, including the Respondent, in fully paying the purchase price. 10.The 1st Applicant has deposed that the contents of the Respondent’s reply are proof that it is necessary for this court to grant the injunctive orders presently sought. Parties’ Submissions 11.The Motion was canvassed through written submissions. In support of the Motion, the Applicants have reiterated that the sub judice rule is inapplicable in the present instance, for the reasons advanced. 12.On the merits of the Motion, the Applicants have anchored their submissions on the decisions Giella v Cassman Brown & Co Ltd [1973] EA 358 and Mrao Ltd v First American Bank of Kenya Ltd & 2 others (Civil Appeal 39 of 2002) [2003] KECA 175 (KLR) (7 March 2003) (Judgment) where the principles for consideration in granting temporary injunctions were laid out. 13.On whether the Applicants have demonstrated a prima facie case, they have borrowed from Mrao Ltd v First American Bank of Kenya Ltd & 2 others case where the court defined what constitutes a prima facie case and submitted that they have established a prima facie case by demonstrating that the Respondent’s repeated publication of the impugned statements is false and defamatory in nature. That the various publications could in their natural and ordinary meaning, be taken to infer that the Applicants are engaged in fraudulent and criminal activities. They have also challenged the defence of justification referenced in the Respondent’s reply and pleadings. 14.On whether the Applicants have suffered irreparable harm/injury, they have drawn this court’s attention to the case of Eddie Jatianga Amadi & Benjamin Osundwa Amadi t/a Amadi & Amadi Advocates v Royal Media Services Ltd & another [2023] KEHC 25534 (KLR) where the court in granting an interlocutory injunction, acknowledged that once reputation is lost, damages may not constitute adequate compensation. 15.The Applicants have proceeded to submit that the impugned publications have already negatively impacted their reputation and that if the same are continued, they are likely to further negatively impact their standing in the eyes of society, which reputation can hardly be restored through an award of costs or damages, as rightly held in the above-cited case. 16.As relates to the balance of convenience, the Applicant have submitted that the balance of convenience tilts in their favour since they stand to suffer greater harm if the injunctive prayers are declined, as opposed to any inconvenience that may befall the Respondent if the Motion succeeds. They have, further, reaffirmed their prayer for the grant of a mandatory injunction. 17.On the other hand, the Respondent has similarly cited the decision in Giella v Cassman Brown & Co Ltd in support of his submissions and submitted that the Applicants have not demonstrated a prima facie case given that the defamation claim is not only denied but strongly defended. He has maintained that the impugned publications are truthful in nature, hence the defence of justification and that no malice has been shown to exist in the said publications. 18.The Respondent has argued, further, that the Applicants have not shown the manner in which they stand to suffer irreparable harm or that any harm suffered cannot be adequately compensated by an award of damages, since they are seeking general, aggravated and exemplary damages. 19.The Respondent submitted that the balance of convenience tilts in his favour since no basis has been laid for granting the interlocutory injunctions sought, pending determination of the suit. He cited the case of Ole Sopia v Kariankei (Civil Suit E003 of 2023) [2024] KEHC 2744 (KLR) (29 February 2024) (Ruling) where it was held that courts ought to exercise caution when making orders that are likely to limit or take away the freedom of expression. 20.On the subject of mandatory injunctions, the Respondent has contended that this is not a proper case for granting the same, since mandatory injunctions ought to be granted only in the clearest of cases, as was stated in Cheserem v Immediate Media Services (2000)2 EA 371 (CCK). He urged that the instant Motion be dismissed with costs. Analysis and Determination 21.I have considered the Motion, the grounds in support, the Replying Affidavit in opposition, the parties’ submissions and the various authorities cited. I will consider if the sub judice rule applies in this matter and whether the applicants have met the threshold for grant of the injunctive orders they are seeking. 22.In respect to sub judice rule, the applicable provision is Section 6 of the CPA. It provides as follows:“No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.” 23.The Supreme Court in the case of Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) [2020] eKLR had the following to say in respect of sub judice rule:“The term ‘sub-judice’ is defined in Black’s Law Dictionary 9th Edition as: “Before the Court or Judge for determination.” The purpose of the sub-judice rule is to stop the filing of a multiplicity of suits between the same parties or those claiming under them over the same subject matter so as to avoid abuse of the Court process and diminish the chances of courts, with competent jurisdiction, issuing conflicting decisions over the same subject matter. This means that when two or more cases are filed between the same parties on the same subject matter before courts with jurisdiction, the matter that is filed later ought to be stayed in order to await the determination to be made in the earlier suit. A party that seeks to invoke the doctrine of res sub-judice must therefore establish that: there is more than one suit over the same subject matter; that one suit was instituted before the other; that both suits are pending before courts of competent jurisdiction and lastly; that the suits are between the same parties or their representatives.” 24.The argument by the Respondent is that the instant Motion is sub judice in view of a similar application filed in the Insolvency Cause in the Commercial and Tax Division of the High Court. I have read the application referred to. It is dated 9.02.2026 and is annexed to the Respondent’s Replying Affidavit as Annexure “SK-1”. That application was filed by Bayside Limited, the defendant in the Insolvency Cause against the Respondent in this instant application who is the Creditor in that Insolvency Cause. 25.I have noted the orders sought in that application. They include an interim injunction restraining the Respondent from publishing any material related to the insolvency or the Statutory Demand dated 5.02.2026 pending hearing and determination of the application. The only similarity of the parties in the application date 9.02.2026 and the instant Motion is the Creditor who is the Respondent in this matter. The Debtor is the company named Bayside, named in this matter as belonging to the Applicants herein. 26.To my mind, the only similarity of the orders sought between the two applications is Prayer 4 in the application of 9.02.2026 which seeks injunctive orders against the Creditor to restrain him from publishing, disseminating or causing to be published any further insolvency related demands, threats or notices founded upon the Statutory Demand dated 5.02.2026 or the disputed claim underlying it. 27.After carefully considering this matter, it is my view that the Respondent has not demonstrated that the instant Motion is sub judice. 28.Turning to the merits of the Motion, I have considered it and the grounds in support. I am alive to the general principles governing issuance of injunctions as pronounced by the Court in Giella v Cassman Brown & Co Ltd [1973] EA 358 and Micah Cheserem v Immediate Media Services & 4 others [2000] eKLR. For an applicant to qualify for a grant of an injunction, whether temporary or not, that applicant must satisfy the following principles:a.That the applicant must establish a prima facie case with a probability of success.b.That the applicant must show that he or she stands to suffer irreparable loss that cannot be adequately compensated by way of damages.c.That the balance of convenience should tilt in favour of the applicant. 29.On the same principles, the Court of Appeal in Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] eKLR expressed itself, partly, as follows:“…….In an interlocutory injunction application, the applicant has to satisfy the triple requirements to:a)establish his case only at a prima facie level.b)demonstrate irreparable injury if a temporary injunction is not granted.c)allay any doubts as to (b) by showing that the balance of convenience is in his favor.” 30.In the same case, the Court was clear that an applicant seeking an injunction must satisfy the three conditions separately as distinct and logical hurdles to be surmounted sequentially by the applicant. Therefore, an applicant who has successfully established a prima facie case must further establish irreparable injury, that is an injury for which damages recoverable could not be an adequate remedy. Thirdly, where the court is in doubt, then the court will consider the balance of convenience. 31.It is settled that, where no prima facie case has been established, then the court need not investigate the question of irreparable loss or balance of convenience. 32.What constitutes a prima facie case has been settled by the Court of Appeal in Mrao Ltd v First American Bank of Kenya and 2 others [2003] eKLR, where it was defined as follows:“A prima facie case in a civil application includes but is not confined to a “genuine and arguable case.” It is a case 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 as to call for an explanation or rebuttal from the latter.” 33.The Court, in the above case, opined further, that the standard for proving a prima facie case is higher than that associated with an arguable case and that an applicant must show an infringement of a right and the probability of success of his or her case upon trial. 34.On the one part, it is the case for the Applicants that they demonstrated a prima facie case worthy of the interlocutory injunctive orders sought by showing that by repeatedly publishing the impugned statements, the Respondent is insinuating that the Applicants are essentially defrauding purchasers and investors, and that they are engaged in criminal activities. 35.On his part, the Respondent has stated that no prima facie case has been established here, since the particulars and elements of defamation upon which the Applicants’ claim is founded, are vehemently denied and that he has a solid defence of truth/justification to support the publications made. 36.I have noted from the pleadings that the various impugned publications in respect of this matter touch on the development project which was being undertaken by the Applicants and which is alleged to have stalled. 37.Whereas it is apparent that the Respondent has denied the particulars of defamation in the plaint and have further pleaded the defence of truth/justification, it is too early to consider the evidence attached to the defences at this stage. My considered view at this stage is that, I am satisfied that the Applicants have shown that they have a prima facie case as defined in Mrao Ltd v First American Bank of Kenya and 2 others. 38.I have considered the case for the Applicants that they stand to suffer irreparable loss or damage that cannot be compensated by an award of damages. I have considered their averments and submission that their reputation is invaluable and cannot, therefore, be compensated by an award of damages. They have argued that given the wide circulation and viewership of the impugned publications, they are being subjected, and will continue being subjected, to character assassination and judgment. That it is thus necessary for the Respondent to be restrained from making any further publications of a nature similar to the defamatory publications in question. 39.On the part of the Respondent, he has taken the position that the interlocutory injunction being sought stands to threaten his constitutional freedom of expression and that it has not been demonstrated that the Applicants are likely to suffer any irreparable harm or damage which cannot be adequately compensated by way of damages, if the prayers sought are denied. 40.I have considered the rival positions taken by the parties. On the one hand, I am alive to the provisions of Article 33 of the Constitution, 2010 on the freedom of expression. On the other hand, I am also alive to the fact that a person’s reputation is of high value and it is therefore reasonable to state that once such reputation is diminished, no amount of recompense may necessarily constitute adequate compensation, as was reasoned in Njage Makanga v Nation Media Group Limited & 3 others [2021] KEHC 1552 (KLR) where the court reasoned thus:“Upon considering the rival positions above and upon studying the material which was placed on the record, I am of the view that one’s reputation is invaluable and once tarnished, cannot adequately be compensated by way of damages. In this regard, I am satisfied that the applicant is more likely to suffer irreparable loss unless he is granted an interlocutory order of injunction.” 41.In the instant application, it is the averment that the impugned publications touch on allegations of fraud and misappropriation of funds relating to a huge development project. The said publications also form the subject matter in the main suit. As we wait for the main hearing of the pending case, I am persuaded, in the meantime, that any continued publications of a similar nature are likely to further injure the Applicants’ reputation, thereby causing them to suffer irreparable damage. 42.In so finding, it is not lost to me that the Respondent has a constitutional freedom of expression. However, this freedom must be balanced with the rights of the Applicants. I also take note that the Respondent’s right and freedom under Articles 33 of the Constitution is not absolute and can be limited in certain situations within the law. 43.It is my considered view that having arrived at the above conclusion, it is evidence that the balance of convenience tilts in favour of the Applicants. I am therefore persuaded to grant the interlocutory injunctive as prayed under prayer (iii) of the Motion. 44.The orders sought under prayer 4 of the Motion amount to a mandatory injunction. It is my understanding the Applicants are seeking a mandatory injunction compelling the Respondent to delete and remove the impugned publications from his respective social media platforms. 45.I am aware that courts have been hesitant to grant mandatory injunctions particularly at the interlocutory stage, except in special circumstances. This was the position stated by the Court of Appeal in the case of Kenya Breweries Limited v Washington Okeyo (2002) 1 EA 109; (2002) eKLR when it stated thus:“The test whether to grant a mandatory injunction or not is correctly stated in Vol. 24 Halsbury’s Laws of England 4th Edn. para 948 which reads:“A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but, in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the court thinks it ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied, or if the defendant attempted to steal a march on the plaintiff …….. a mandatory injunction will be granted on an interlocutory application”.Also in Locabail International Finance Ltd. v. Agroexport and others [1986] 1 ALL ER 901 at pg. 901 it was stated:- “A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances, and then only in clear cases either where the court thought that the matter ought to be decided at once or where the injunction was directed at a simple and summary act which could be easily remedied or where the defendant had attempted to steal a march on the plaintiff. Moreover, before granting a mandatory interlocutory injunction the court had to feel a high degree of assurance that at the trial it would appear that the injunction had rightly been granted, that being a different and higher standard than was required for a prohibitory injunction.” 46.With the above authority in mind, and having read the pleadings and noted that prayer 4 of the application, if granted, is of a final nature and that such a prayer is also sought in the Plaint, it is my considered view that it would be prejudicial to the Respondent if mandatory injunction is granted at this interlocutory stage. It will amount to condemning the Respondent before he has been heard. 47.Consequently, having noted that the Applicants have sued the Respondent in their personal capacities as pleaded under paragraph 4 of the Plaint, I hereby allow the Notice of Motion dated 23.02.2026 in terms of prayers (iii) giving rise to the orders hereunder:a.Pending the hearing and determination of this suit, an interlocutory injunction be and is hereby issued restraining the Defendant/Respondent whether by himself, his servants, agents, employees, assigns or otherwise howsoever, from:i.Publishing, posting, uploading, broadcasting, disseminating, communicating, or causing to be published any further statements, posts, tweets, or publications that are defamatory of the Plaintiffs/Applicants or either of them, in connection with the matter relevant to this suit, on the social media platform X (formerly Twitter) under the username @Saitabao or any other social media platform, website, or online medium; andii.Making or causing to be made any further defamatory references to the Plaintiffs/Applicants or either of them, whether by name, implication, or otherwise, that expressly or by implication attributes dishonesty, fraud, criminal conduct or mismanagement to the Plaintiffs/Applicants or either of them, in any publication accessible to the public.b.Costs of the Motion shall abide the outcome of the suit. 48.It is so ordered. DATED, SIGNED AND DELIVERED THIS 25TH DAY OF JUNE 2026.S. N. MUTUKUJUDGE