[2022] KEHC 17161 (KLR)

Harrison v Ilado & 6 others (Civil Suit E229 & E233 of 2021 (Consolidated)) [2022] KEHC 17161 (KLR) (Civ) (22 December 2022) (Ruling)

Neutral citation: [2022] KEHC 17161 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Suit E229 & E233 of 2021 (Consolidated)

CW Meoli, J

December 22, 2022

Between

Kinyanjui J. Harrison

Applicant

and

Paul Ilado

1st Respondent

Annette Wambulwa

2nd Respondent

Radio Africa Ltd

3rd Respondent

Tabbyrose Wanja Wamwitha

4th Respondent

As consolidated with

Civil Suit E233 of 2021

Between

Kinyanjui J. Harrison

Applicant

and

Chris Oyuga

1st Respondent

Bernice Mbugua

2nd Respondent

Mediamax Network Ltd

3rd Respondent

Tabbyrose Wanja Wamwitha

4th Respondent

Ruling

1. The events leading to the consolidation of the afore-captioned matters is as follows. Kinyanjui J Harrison (hereafter the Applicant) filed a suit being Nairobi High Court Civil Suit No E229 of 2021 via a plaint dated September 22, 2021 against Paul Ilado, Annette Wambulwa, Radio Africa Ltd and Tabbyrose Wanja Wamwitha (hereafter the 1st, 2nd, 3rd and 4th Respondent/Respondents). The plaint was accompanied by an amended motion dated September 23, 2021 seeking inter alia that pending the hearing and determination of the suit the court be pleased to issue interim injunctive order restraining the Respondents by themselves their servants and or agents, their ancillary media or social media outlets connected with the Respondents or otherwise howsoever from publishing in print or electronic form or uttering any defamatory statements against and concerning the Applicant or to maintain online and to forthwith remove the article at www.the-star.co.ke/news/2021-09-21-city-lawyers-lover-seeks-exhumation-of-childs-body-cities-foul-play/, and at https://www.the-star.co.ke/news/2021-09-21-lawyers-ex-partner-seeks-exhumation-of-her-baby/ and or further disseminating or causing to be disseminated in print or electronic form on any platform or social media or on the 4th Respondent’s Facebook page by the handle 'Wanja Nyarari' or otherwise howsoever the said or any defamatory material of or concerning the Applicant.

2. The grounds on the face of the motion are amplified in the supporting affidavit sworn by the Applicant who describes himself an experienced legal practitioner licensed to practice by the Law Society of Kenya and who has undertaken many cases including some that have gained national prominence and were reported as landmark decisions in the Kenyan jurisprudence. Thus, he has contributed positively to the growth of jurisprudence in Kenya and especially in public interest litigation that is beneficial to the general public and has therefore become known across the country. That in addition he has participated in discussions on national television at prime times at various stations regarding topics of national interest and of law. Hence, a substantial number of viewers of national television readily identify and know him.

3. He deposes that on September 21, 2021 he was shocked and stunned to note that the 2nd Respondent herein using the 3rd Respondent’s online platform www.the-star.co.ke/news/2021-09-21-city-lawyers-lover-seeks-exhumation-of-childs-body-cities-foul-play/ and published by the 1st Respondent had falsely and maliciously uttered false and defamatory statements of and concerning him in an article titled 'Mother of city lawyers child seeks body exhumation'. That the said defamatory statement in the article made several false and defamatory insinuations against him that include 'mother of city lawyer Harrison Kinyanjui’s deceased daughter has moved to court seeking to exhume the remains, arguing there was foul play in her death' which false allegation is capable of being construed and understood in its ordinary meaning, to mean that, he was guilty of foul play in the death of his deceased daughter, and purported involvement in rituals of a diabolical nature.

4. The deponent further states that the allegation is false and untrue as the results of a postmortem conducted openly, transparently in respect of the deceased child were furnished to the 4th Respondent; whereas the article in question imputes that he conspired with the relevant medical officer responsible for conducting the post mortem on his deceased infant at MP Shah Hospital, to commit criminal acts under the Public Health Act & Health Act in a bid to cover up the actual or true cause of death. Which imputation is not true and is clearly designed to taint his image in the mind of the general public and those who know him as a legal practitioner.

5. He goes on to depose that the 2nd Respondent had further alleged of him that; 'In an application filed at the Commercial Court, Tabby Wamwitha said Kinyanjui is a free mason. The applicant herein believes that Harrison Kinyanjui practices and participates in harmful religious practices known as free mason,' read court documents'. The deponent asserts that the application referred to in the said publication did not in fact mention that he was a ‘free mason’ whereas the natural meaning and imputation of the aforementioned words authored by the 2nd Respondent, approved by the 1st Respondent and published by the 3rd Respondent at the behest of the 4th Respondent was that he is involved in religious practices that are harmful to society and to his family by sacrificing his own daughter pursuant to allegiance to the free masonry, which is false.

6. That the 4th Respondent habitually makes malicious and false statements of and against him especially on her social media Facebook page under the handle 'Wanja Nyarari' and that the impugned publication at the behest of the 4th Respondent is to discredit and manifestly points to the malicious intention to defame and grossly injure his reputation following the breakup of a social relationship with 4th Respondent over three years ago. He asserts that Article 33(2)(d)(i) of theConstitution forbids the vilification of persons via publication of court proceedings and that the 1st, 2nd and 3rd Respondent are openly abusing media freedom which is limited in terms specified, thus entitling the court to grant him protection of law pursuant to Article 27(1) of theConstitution of Kenya.

7. That the unequivocal proof of the 1st, 2nd & 3rd Respondents’ malice and ill will against him is the fact that the defamatory article was repeated and republished online on the same date of September 21, 2021 under the heading 'BITTER FALLOUT' 'lawyer’s ex-partner seeks exhumation of her baby' she argues that there was foul play in her death’ by Annette Wambulwa Court Reporter News' and prominently also on the front page of the hard copy of the Star Newspaper titled 'Foul Play claim woman seeks exhumation of her daughter'. That the hard copy publication was in an exclusive of the 3rd Respondent’ star newspaper of September 22, 2021 , which is indicative of the Respondents express malice. That he sent to the 2nd Respondent’s WhatsApp number a demand for retraction of the contents which demand was ignored.

8. That the foregoing incessant and expressly defamatory statements made by the Respondents despite his plea to have them cease and desist have the effect of continually and irreparably harming the Applicant’s professional reputation, social standing, and character, thus necessitating the intervention of this court by the instant motion. He asserts that on account of the Respondents’ continued actions he has fielded numerous inquiries from friends, relatives and clients who express shock at the publications, causing him mental anguish, embarrassment pain and suffering. In conclusion he deposes that 3rd Respondents newspaper enjoys national circulation and international readership and therefore the story would attract non-curious readers as such it is in the interest of justice the prayer sought in the motion is allowed as prayed.

9. The Applicant also filed a further suit being Nairobi High Court Civil Suit No E233 of 2021 vide a plaint dated September 23, 2021. The suit name as defendants, the 4th Respondent and Chris Oyuga, Bernice Mbugua, Mediamax Network Ltd (hereafter the 5th, 6th & 7th Respondent/Respondents) . Similarly, the plaint was accompanied by a motion under certificate of urgency . The motion seeks inter alia that pending the hearing and determination of this suit the court be pleased to issue interim injunctive order restraining the Respondents by themselves their servants and or agents, their ancillary media or social media outlets connected with the Respondents or otherwise howsoever from publishing in print or electronic form or uttering any defamatory statements against and concerning the Applicant or to maintain online and to forthwith remove the article at http://www.pd.co.ke/news/city-lawyer-harrison-kinyanjui-lover-wants-girl-body-exhumed-95765/ and or further disseminating or causing to be disseminated in print or electronic form on any platform or social media or on the 4th Respondent’s Facebook page by the handle 'Wanja Nyarari' or otherwise howsoever the said or any defamatory material of or concerning the Applicant.

10. The grounds on the face of the motion are similarly amplified in the supporting affidavit sworn by the Applicant whose contents are more or less in the same vein as the depositions in the affidavit sworn in Nairobi High Court Civil Suit No E229 of 2021. The Applicant however specifically swears with respect to the 6th Respondent that the said Respondent had, using the 7th Respondent’s online platform at http://www.the-people daily.co.ke/news/2021-09-21-city-lawyer-lover-seeks-exhumation-ofchils-body-cities-foul-play/ with the approval of the 5th Respondent falsely and maliciously published, uttered false and defamatory statements concerning the Applicant.

11. That the 6th Respondent’s article maintained online at http://www.pd.co.ke/news/city-lawyer-harrison-kinyanjui-lover-wants-girl-body-exhumed-95765/ is false and malicious. Further that the 5th, 6th and 7th Respondent repeated the publication of the said article on page 7 of the hard copy of the People Daily Newspaper of September 22, 2021 under the title 'City lawyer Harrison Kinyanjui’s lover wants girl body exhumed '. He complained that actions of the 4th, 5th, 6th and 7th Respondents had resulted in the Applicant receiving numerous calls and messages from shocked friends, relatives and clients and had caused him mental anguish, embarrassment pain and suffering. In conclusion he deposes that 7th Respondent’s newspaper enjoys national circulation and international readership and therefore the story would attract non-curious readers and that despite a demand to retract and withdraw the defamatory material complained of , no response has been forthcoming. Hence, it was in the interest of justice the prayers sought in the motion is allowed as prayed.

12. The suits were consolidated on October 12, 2021 and Nairobi High Court Civil Suit No E229 of 2021 was appointed as the lead file . The Respondents in Nairobi High Court Civil Suit No E233 of 2021 being Chris Oyuga, Bernice Mbugua, Mediamax Network Ltd were designated as 5th, 6th & 7th Respondent in the consolidated suits.

13. The 1st, 2nd & 3rd Respondent oppose the Applicant’s amended motion through a replying affidavit dated November 10, 2021 sworn by the 1st Respondent who describes himself as Head of Content at the 3rd Respondent, competent and duly authorized to swear on behalf of the 2nd and 3rd Respondent. He denies the averments in supporting affidavit and deposes that the articles published on September 21, 2021 and September 22, 2021 are not defamatory. The deponent asserts that the publications were true in substance and in fact, made in good faith and without malice on account of a matter of immense public interest; and that the publications were made on a privileged occasion. He therefore asserted that the Applicant is not entitled to the orders sought in the motion and the urged the court to dismiss it with costs.

14. The 4th Respondent opposed the amended motion through her replying affidavit dated October 8, 2021. She stated that there are ongoing court proceedings between the Applicant and herself before the Milimani Commercial Court concerning the exhumation of her deceased daughter; that the said proceedings are open to scrutiny from anyone whether a party to the suit or not; that neither the Applicant nor MP Shah Hospital furnished her with a copy of the autopsy report regarding her late daughter; that the Applicant has constantly forbidden her on threat of death from disclosing that he is a dedicated member of a cult by the name 'Free mason'; that the Applicant used to voluntarily narrate to her his shrine rituals in relation to the 'Free mason' cult, and how he had become estranged from his mother for having introduced him to a cult.

15. She goes on to depose that what was published by the Respondents is true in substance and in lawful exercise of the freedom of expression and to information pursuant to Article 33, 34 and 35 of theConstitution. That the amended motion offends public interest and policy which favors free speech as an integral aspect of democracy and should only be limited in exceptional circumstances. She further asserts that on account of having lived with the Applicant for about five years during which they sired two children, she knows the Applicant well enough to confirm and affirm to the best of her knowledge and understanding that what was published was a fair comment. She views the amended motion as frivolous, scandalous, vexatious and a waste of the court’s time and asserts that it ought to be struck out.

16. The 5th, 6th & 7th Respondent oppose the Applicant’s motion in Nairobi High Court Civil Suit No E233 of 2021 vide the replying affidavit sworn by the 6th Respondent dated November 22, 2021. To the effect that the deponent is a journalist by profession in the employment of the 7th Respondent and well versed with facts in issue and is duly authorized by the board of directors of 7th Respondent to swear the affidavit on behalf of the 5th & 7th Respondent. She denies the averments in the supporting affidavit and defends the publication as made under a sense of duty, without malice towards the Applicant; that the same comprise fair comment made in good faith on account of public interest , and on a privileged occasion on account of the court proceedings between the Applicant and 4th Respondent before the Milimani Commercial court.

17. In conclusion she denies that the 5th & 7th Respondent defamed the Applicant as alleged and that the orders sought are unjustified and would amount to barring the 7th Respondent from its duty to comment on a matters affecting the society . She seeks that the motion be dismissed with costs.

18. By way of rejoinder, the Applicant filed supplementary affidavits dated November 2, 2021 and November 22, 2021 in response to the 4th Respondent’s affidavit and 1st, 2nd & 3rd Respondents affidavit.

19. He deposes therein that 4th Respondent has been extremely malicious against him following his termination of an intermittent social relationship with her and has vengefully embarked on an attempt to tarnish his name in order to bring his legal practice to ruin. He points out that the said Respondent has not denied certain averments in his supporting affidavit and disputed allegations made against him in the said Respondent’s affidavit; that the court proceeding between him and the 4th Respondent are not open to all and sundry as no perusal fees or request that has been demonstrated by the 4th Respondent ; and that the judiciary does not allow non-litigants to access court proceedings.

20. He asserts further that the Respondents’ reporting of the court proceedings of the dispute between him and the 4th Respondent before the commercial court in the defamatory publication was inaccurate, as the 4th Respondent’s pleadings therein did not contain a statement under oath that he was a 'Free Mason' and yet those proceedings were the alleged basis of the impugned defamatory publications; that he has never threatened to kill the 4th Respondent which threat would constitute a crime which the 4th Respondent has never reported to police for action; he denies narrating to the 4th Respondent any alleged shrine rituals in relation to the 'Free Mason' cult or that his mother introduced him to any cult as alleged by the 4th Respondent asserting that that he is a born again Christian; that he was an avid reader and has in his possession a wide variety of books by dint of his profession for purposes of expanding his knowledge and that possession of certain literature does not connote adherence to the subject matter thereof.

21. He states that based on the intermittent nature of his relationship with the 4th Respondent the said Respondent hardly knows him. Further that the defence of fair comment and justification are not available to the 4th Respondent having failed to tender any evidence of the truthfulness of the defamatory allegations. He goes on to assert that despite the advocate on record for the 4th Respondent giving an undertaking before this court, the 4th Respondent has continued to publish defamatory material against him and it is in the interest of justice that the order sought be issued to restrain the 4th Respondent.

22. In his second supplementary affidavit the Applicant takes issue with the 1st, 2nd & 3rd Respondents’ response on grounds that the entire affidavit constitutes bare denials of the claim and does not address the specific depositions in his affidavit in support of the motion; that no sworn evidence by the 4th Respondent was tendered in the dispute before the commercial court that could be cited, quoted or otherwise published by the said Respondents in the name of public interest; that the deponent of the affidavit did not demonstrate and or prove the source of their alleged defamatory statements; and that said publications are expressly malicious and devoid of public interest.

23. The motions were canvassed by way of written submissions. First, counsel for the Applicant reiterated the contents of the Applicant’s affidavit. Asserting that the impugned publications evidently refer to the Applicant, the same are untrue and without any legal basis. He cited rights enshrined in Articles 2(6), 27, 28, 32(2)(d)(i) & 34(1) of theConstitution of Kenya and Article 17 of the International Covenant on Civil and Political Rights (ICCPR) and the treatise Gatley on Libel and Slander, 12thEdition, Para. 25. 2 to submit that the Respondents do not enjoy absolute rights allowing them to publish defamatory material injurious of the Applicant’s reputation and that threshold for the grant of interlocutory injunctive orders has been met in this case.

24. It was asserted that the Respondents failed to report the dispute between the Applicant and 4th Respondent pending before the commercial court accurately, objectively and truthfully and the sole motivation behind the Respondents’ offensive publication was to malign and defame the Applicant by lowering his estimation among right thinking member of the society. That there can be no public interest in the dissemination of defamatory material which also infringed upon the Applicant’s right to dignity. Conduct that is both irresponsible and dishonest.

25. Addressing the court reliefs sought, counsel relied on Halsbury Laws of England 4thEdition, Volume 28 at Para 42. He cited several the decisions including Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] eKLR, Raila Odinga & 5 Others v IEBC & 4 Others [2013] eKLR, Megascope Healthcare Kenya Limited v Nation Media Group Limited & 4 Others [2021] eKLR, Micah Cheserem v Immediate Media Services & 4 Others [2000] 2 EA 371, West Kenya Sugar Company Limited v Moses Malulu Injendi & Another [2021] eKLR, and Paul Mwaniki Gachoka & Another v Nation Media Group Limited & Another [2019] eKLR to argue that the Respondents have failed to tender justification and or authenticate the source of their defamatory statements and to demonstrate the prejudice or harm they stand to suffer if the injunctive orders sought by the Plaintiff are granted.

26. It was further submitted that 4th Respondent’s publications were driven by malice as evidenced by her failure to tender reasonable justification. Citing the case of J P Machira t/a Machira & Co Advocates v Wangethi Mwangi & Another [2017] eKLR, Abno Softwares International Limited & Another v Hermandra Singh & Another [2020] eKLR andHon Uhuru Muigai Kenyatta v Baraza Limted [2011] eKLR counsel reiterated the Applicant’s status as a legal practitioner urging that it is imperative to preserve his reputation pending the trial. Regarding the defence accorded by Section 6 & 7 of the Defamation Act, he asserted that the same was not available to the Respondents as the defence of privilege only applies where the report in question is strictly confined to actual court proceedings and must contain no defamatory observation or comments. It was further contended the defence of justification by law requires the Respondents to establish the true facts of such statements they publish.

27. Concerning the balance of convenience, he called to aid the decision in Paul Gitonga Wanjau v Gathuthis Tea Factory Company Ltd [2016] eKLR and Samuel Ndungu Mukunya v Nation Media Group Limited & Another [2015] eKLR to contend that the Applicant stands to suffer more harm to his reputation and standing as a legal practitioner if the injunctions sought are not granted and that the defence of fair comment does not cover misstatement of facts. Concluding, counsel cited the case of Safaricom Limited v Porting Access Kenya Limited & Another [2011] eKLR to assert that it is apparent that the Respondents intend to repeat or re-publish the defamatory statements , which action would constitute a fresh cause of action with each republication and therefore the Applicant is entitled under Article 27 (1) of theConstitution to the protection of law through the orders sought.

28. Counsel for the 1st, 2nd & 3rd Respondent anchored his submissions on the decision in Michah Cheserem v Immediate Media Services & 4 Others [2000] eKLR and Gatley on Libel and Slander, 12th Edition to argue that the words published in the impugned articles do not qualify as defamatory being verbatim reports of the ongoing suit between the Applicant and the 4th Respondent before the commercial court. It was further submitted that the defences of justification and privilege were applicable in the instant matter and that the Applicant has not made out a case for the issuance of restraining orders against the 3rd Respondent.

29. He cited the English case of Fraser v Evans (1969) 1 ALL ER 8 and Star Publication Limited & Another v Ahmednasir Abdullahi & 5 Others [2015] eKLR to argue that the court should not grant an injunction where the defence of justification and fair comment are taken. Counsel further cited the decision in Vimal Kumar Bhinji Depar Shah v Stephen Jennings & 5 Others [2016] eKLR concerning the threshold required for issuance of a mandatory injunction as sought and that such an order would be tantamount to determining the dispute before trial. He urged the court to dismiss the amended motion.

30. Counsel for the 4th Respondent opened his submissions by asserting that a claimant in a defamation case must prove that the words were spoken or written by the offending party and that the words spoken refer to the claimant, are false and that the claimant has thereby suffered injury to his reputation. It was contended that the articles published were neither calculated to injure, or ridicule the Applicant nor made without justification. While placing reliance on Nation Media Group v Jakoyo Midiwo (2018) eKLR and Wycliffe A Swanya v Toyota East Africa Ltd & Another [2009] eKLR counsel submitted that the Applicant has not demonstrated malice and asserted that the 4th Respondent was not involved in the publication of the articles the Applicant alleges to have defamed him. Moreover, that he has failed to prove how the words published have lowered his reputation in the estimation of right-minded persons. The case of JP Machira (supra) was cited in support of the latter submission.

31. Concerning whether the Applicant in entitled to the orders sought counsel relied on Giella v Cassman Brown Co Ltd (1973) EA 358, Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR,Ibrahim Mukhatar Abasheikh v Royal Media Services & Another [2020] eKLR, Kenya Breweries Ltd v Washington Okeyo [2002] eKLR and Nation Media Group & 2 Others v John Harun Mwau [2014] eKLR to contend that Applicant has not established the three requisite conditions for the grant of an interlocutory injunction. Further that the publication was fair, accurate , not actuated by malice but by an intention of informing the public on a matter of general interest to them. Hence the orders sought are untenable.

32. Counsel for the 5th, 6th & 7th Respondent on his part while calling to aid several cases including Nguruman Limited v Jan Bonde Nielsen & 2 Others (supra), Michah Cheserem v Immediate Media Services & 4 Others (supra), Kenya Commercial Finance Co. Ltd v Afraha Education Society [2002] 1 EA 86 (CAK), and Gilgil Hills Academy Ltd v The Standard Ltd [2009] Ltd argued that Applicant has not demonstrated to prima facie standard that he was defamed and that if the publication were to be continued it would result in immediate and irreparable injury. That the Applicant has yet to establish that the words complained of are untrue and that no defence is available to the the Respondents. Further that the Applicant has failed to provide evidence of irreparable damage through the risk of the impugned article being republished or of the Respondent publishing statements defamatory of him.

33. Counsel cited Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] eKLRand Francis Atwoli & 5 Others v Kazungu Kambi & 3 Others [2015] eKLR to contend that damages would be adequate compensation for any injury suffered by the Applicant. He pointed out that the orders sought are too wide and imprecise as the words or statements that are classified as defamatory have not been stated. It was further submitted that given the public interest in having a free and unencumbered media, the orders sought would result in unlawfully muzzling the Respondents. Therefore, the court was urged to dismiss the motion with costs.

34. The Court has considered the affidavit evidence on record and the parties’ respective submissions. The Court of Appeal had this to say in Musikari Kombo v Royal Media Services Limited (2018) eKLR :'The law of defamation is concerned with the protection of a person’s reputation. Patrick O'Callaghan in the Common Law Series: The Law of Tort at paragraph 25. 1 expressed himself in the following manner:'The law of defamation, or, more accurately, the law of libel and slander, is concerned with the protection of reputation: 'As a general rule, English law gives effect to the ninth commandment that a man shall not speak evil falsely of his neighbor. It supplies a temporal sanction’ Defamation protects a person's reputation that is the estimation in which he is held by others; it does not protect a person's opinion of himself nor his character. 'The law recognizes in every man a right to have the estimation in which he stands in the opinion of others unaffected by false statements to his discredit' and it affords redress against those who speak such defamatory falsehoods.'

35. Actions founded on the tort of defamation bring out the conflict between private and public interest. Article 33(1) of theConstitution guarantees every person’s right to freedom of expression including the freedom to seek, receive or impart information or ideas but sub-Article (3) states that 'In the exercise of the right to freedom of expression, every person shall respect the rights and reputation of others'. Article 34 guarantees the freedom of the media but the exercise thereof is subject to the provisions of Article 33(2). Articles 25 and 31 protect the inherent dignity of every person and the right to privacy. These rights are reinforced by the provisions of the Defamation Act.

36. In contemplating these competing rights Lord Denning MR stated in Fraser v Evans & Others [1969]1 ALLER 8'The right of speech is one which it is for the public interest that individuals should possess, and indeed, that they should exercise it without impediment, so long as no wrongful act is done; and unless an alleged libel is untrue, there is no wrong committed.'

37. In Halsbury’s Laws of England 4th Edition Vol 28 paragraph 10- a defamatory statement is defined as follows:'A statement which tends to lower a person in the estimation of right-thinking members of society generally or to cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule, or to convey an imputation on him disparaging or injurious to him in his office, profession, calling, trade or business'.See also the Court of Appeal definition of a defamatory statement in SMW v ZWM (2015) eKLR.

38. Additionally, Gatley on Libel and Slander 6th Edn states that:'A man commits the tort of defamation when he publishes to a third person words (or matter) containing an untrue imputation against the reputation of another'.

39. In Selina Patani & Another vs Dhiranji V Patani (2019) eKLR’s the Court of Appeal stated that the law of defamation is concerned with the protection of reputation of persons, that is, the estimation in which such persons are held by others. The Court restated the ingredients of defamation as follows:'In rehashing, we note the ingredients of defamation were summarized in the case of John Ward v Standard Ltd HCC 1062 of 2005 as follows:i.The statement must be defamatoryii.The statement must refer to the plaintiffiii.The statement must be published by the defendantiv.The statement must be false.'

40. The undisputed background to this action as gleaned from material on record is as follows. The Applicant is an advocate of the High Court of Kenya who has had a fairly visible career as a legal practitioner. The Applicant and the 4th Respondent were prior to 2017 involved in a romantic relationship out of which they sired two children, namely JH and RH. RH was born with the medical condition called Downs syndrome and developed other medical conditions. She died while receiving treatment at a Nairobi hospital on October 14, 2017, and was buried on land apparently belonging to the Applicant or his family.

41. Meanwhile the relationship between the Applicant had apparently become so strained that by 2021, the two had parted ways. In January 2021 the 4th Respondent filed a case in the Children’s Court at Nairobi, namely, Children Case No E 039 of 2021 against the Applicant. The parties were therein embroiled in a dispute over the custody of JH among other issues. Several orders had been made in the cause but while it was still pending, the 4th Respondent in July 2021 lodged yet another suit being Nairobi CM’s Miscellaneous Civil Application No 10041 of 2021 in which she named the Applicant, a hospital, and several public bodies as respondents.

42. Therein the 4th Respondent sought orders for the exhumation of the body of RH for purposes of an autopsy. The 4th Respondent claimed in the matter that she suspected foul play in the death of RH and made certain allegations against the Applicant including involvement in free masonry or the occult and an imputation that somehow these practices could have had a role in the death of RH. She claimed that she had never seen RH’s autopsy report and suggested collusion between the Applicant and the pathologist in covering up the real cause of RH’s death. These claims were also posted albeit in different form on the 4th Respondent’s Face Book page christened 'Wanja Nyarari’. The Applicant filed a lengthy affidavit in the miscellaneous cause, disputing the 4th Respondent’s claims and attached therein a copy of the autopsy report in respect of RH.

43. On September 21, 2021 the 1st,2nd and 3rd Respondents, and the 5th ,6th and 7th Respondents, respectively, twice published under different titles on their online platforms, a report in connection with the miscellaneous cause setting out in some detail the contents of the 4th Respondent’s application and affidavit. As expected, the report drew protestation from the Applicant. However, on the next day, the story was also prominently reported in the said Respondents’ hard copy newspaper. These developments prompted the filing of the two suits before the Court.

44. The principles governing the grant of an interlocutory injunction as enunciated in Giella v Cassman Brown & Co Ltd [1973] EA 358 are settled. Similarly, as to what constitutes a prima facie case, this is settled too since the decision in Mrao v First American Bank of Kenya Ltd & 2 Others CA No 39 of 2002; (2003] eKLR. Both decisions have been reaffirmed and applied by superior courts in countless subsequent decisions including the recent decisions cited in this case by the parties.The Court of Appeal in Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR restated the principles governing the grant of interlocutory injunctions as enunciated in Giella’s case and observed that the role of the Judge dealing with an application for interlocutory injunction is merely to consider whether the application has been brought within the said principles. The Court cautioned that such a court ought to exercise care not to determine with finality any issues arising.

45. The Court expressed itself as follows:'Since the fundamentals about the implications of the interlocutory orders of injunctions are settled, at least over four decades since Giella’s case, they could neither be questioned nor be elaborated in detailed research. Since those principles are already by authoritative pronouncements in the precedents, they may be conveniently noted in brief 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 levelb)Demonstrated 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.'

46. In addition, the Court stated that the three conditions apply separately as distinct and logical hurdles to be surmounted sequentially by the Applicant. That is to say, that the Applicant who establishes a prima facie case must further establish irreparable injury, being injury, for which damages recoverable could not be an adequate remedy. And that where the court is in doubt as to the adequacy of damages in compensating such injury, the court will consider the balance of convenience. Finally, where no prima facie case is established, the court need not investigate the question of irreparable loss or balance of convenience.

47. As to what constitutes a prima facie case, the Court of Appeal delivered itself as follows: -'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.'

48. In addition, this being a suit founded on defamation, the counsel contained in Micah Cheserem’s case is pertinent to the consideration of the instant motion. This is what Khamoni J (as he then was) stated in that case:'Maybe counsel did not address me fully on the relevant law because it is not appreciated that the question of an injunction in defamation cases is treated in a special way. Here injunction is not treated in the way it is treated in other cases. I looked at the relevant authorities and considered the matter in the case of Francis P Lotodo vs Star Publishers & Magayu Magayu in HCCC No 883 of 1998 and found that though the conditions applicable in granting an injunction as set out in the case of Giella vs Cassman Brown & Co Ltd [1973] EA 358 generally apply, in defamation cases those conditions operate in special circumstances. Those conditions have to be applied together with the special law relating to the grant of injunction in defamation cases where 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. The Court must be satisfied that the words or matter complained of are libelous. It must be satisfied that the words are so manifestly defamatory that any verdict to the contrary would be set aside as perverse.But how will the Court be so satisfied when the application for an injunction in a defamation action is, like in the instant case, filed at the initial stage? It is filed before pleadings are closed. How will the Court be so satisfied?Further, even when the Court is satisfied that the words are so manifestly defamatory that any verdict to the contrary would be set aside as perverse, can the Court grant an injunction where the respondent has the defence of qualified privilege or where the respondent is pleading justification or fair comment? We will be at a stage where the Court has not yet heard and seen witnesses testify. Their evidence has not therefore been tested, canvassed and evaluated. The respondent or defendant is pleading qualified privilege and therefore justification or fair comment, being a defence which defendants in actions which are not for defamation normally do not have. Does the Court grant an interlocutory injunction?From the authorities and the law, I considered in the case of Francis P Lotodo, I found that defamation cases are special actions as far as the granting of injunctions is concerned. This is because generally and basically, actions or cases of defamation bring out a conflict between private interest and public interest, and this is more so in Kenya where we have the country’s Constitution which has provisions to protect fundamental rights and freedoms of the individual including the protection of freedom of expression'.

49. None of the Respondents herein dispute the publications attributed to them and which were similar in substance. The 4th Respondent by her affidavit in response appears to stand by claims she made against the Applicant in the miscellaneous cause and appears to defend the publications attributed to her co-Respondents. She does not dispute the words published on her Face Book page. However, she disputes having handed over any of the filings in the miscellaneous cause to her co- Respondents. No purpose would be served in replicating all the subject publications here. The gist of the reports published by the 1st to 3rd Respondents both online and in their hard copy newspaper between 21st and September 22, 2021, suffice to illustrate the near similar contents of the four publications by the 1st to 3rd Respondents and by the 5th to the 7th Respondents, respectively.

50. The first online publication by the 1st to 3rd Respondents read as follows:'Lawyer's ex-partner seeks exhumation of her babyShe argues there was foul play in her deathIn summary She claims that their daughter died suddenly on October 14, 2017, at the MP Shah Hospital.

She says since the burial, Kinyanjui has made it difficult for her to celebrate the life of her daughter because she can't visit the grave.City lawyer Harrison Kinyanjui's former partner has moved to court seeking to exhume their daughter's remains, arguing there was foul play in her death.In an application filed at the commercial court, Tabbyrose Wamwitha has accused Kinyanjui of being a free mason.'The applicant herein believes that Harrison Kinyanjui practices and participates in harmful religious practices known as Free Mason,' court documents state.Through lawyer Danstan Omari, Wamwitha claims their daughter died suddenly on October 14, 2017, at the MP Shah Hospital at around 6. 30am after being rushed to -the hospital at around 4am.'The circumstances surrounding the deceased's death would remain unravelled yet Wamwitha's family has strong reasons to be believe that there was foul play in the death of the minor,' Omari argues.She wants the body exhumed so that she can conduct an independent autopsy then bury the child in her own land where she can see the grave when she wants.The child suffered from Down's Syndrome and heart complications prior to her death.Wamwitha claims that the father was never supportive of the child's medical condition.According to court documents, the child had a fever the day before and despite the mother insisting on taking her to the hospital, Kinyanjui refused.'The applicant forcefully took the infant to the hospital and the next morning at around 4am and at 6. 30am the infant was pronounced dead,' she claims.After the death of the infant, she says she suggested that the body should be buried at Langata cemetery or her land in Maai Mahiu after an autopsy had been done.However, she alleges that unknown to her, Kinyanjui changed the burial place to his property in Gatundu.'He proceeded to remove the body of the deceased from the mortuary on October 2017 and had the same buried after a secret autopsy was conducted by a pathologist best known to him and she never got to see or have any access to the autopsy result,' court papers say.Wamwitha says since the burial of her daughter, Kinyanjui has made it difficult for her to celebrate the life of her daughter because she can't visit the grave.'Unless the applicant is given the body of the deceased so as to conduct an autopsy by a public pathologist and to bury it in her land or neutral place as earlier agreed upon by the parties, her wishes and rights to commemorate the late daughter have and will still be infringed leading to emotional suffering, torture and agony,' Omari argues.In his response to the application, Kinyanjui has opposed the exhumation of his late daughter as has been asked by the mother.The lawyer has dismissed claims by Wamwitha that he had anything to do with the death of their daughter.'The fourth defendant states that he loves his deceased infant as strongly in death as he always did from the date of her birth and states that the cited plaint is callous, diabolical and solely intent on in-dignifying the deceased infant,' court papers say.He also states that he will not stand by as his ex-lover wantonly denigrates the dignity of the deceased infant merely because their relationship collapsed on March 13, 2018. He insists that they were never married as has been alleged by the mother of his child.Kinyanjui's best friend, lawyer Geoffrey Makome, has sworn an affidavit vouching for his character saying he was a good father.Makome says it's not true that Kinyanjui never attended to the deceased infant as had been alleged by the wife.'I know the said Tabbyrose Wamwitha as a disagreeable, abrasive and very aggressive and unreasonable woman, she would have totally wreaked havoc at both Kinyanjui's office and farm were any such burial done secretly,' Makome said,He also says she was never married to Kinyanjui as she has alleged in court.Wamwitha's elder sister, Anne Wangeci, has also supported Kinyanjui telling court not to allow the exhumation of her late niece.'I oppose any order to exhume the remains of my deceased niece as sought in this suit herein, and I am stunned that even such pleas were lodged,' reads court documents.Wangeci also confirms what Makome had told court that her sister was never married to Kinyanjui.She also says contrary to the negative image created in the proceedings of the alleged secrecy by Kinyanjui of the burial of her niece, the immediate family of Wamwitha was aware and participated in every stage of the burial ceremony leading to the final burial of the deceased infant.'It is not true therefore to allege that we as the family of TabbyRose Wamwitha was not involved in the burial arrangements of the deceased infant. We were all involved on her side of family,' Wangeci said.She says the pleas to exhume the remains of her deceased niece sought by her sister are in bad faith and she is aware the cause of death of her niece is stated in the postmortem produced by Kinyanjui in the court.'Such pleas are in fact against Kikuyu customary practices as I apprehended them, it is an abomination to so act and we have no such a practice in our family J have heard of,' reads court documents.The court will deliver a ruling in November 12 whether it will allow the exhumation of the body or not.By Annette Wambulwa Court Reporter.'

51. A subsequent online version of the publication made on the same day under a different title read as follows:'Woman wants baby exhumed lawyer opposes move in courtTabbyrose Wamwitha has accused Kinyanjui of being a free mason.Annette Wambua@TheStarKenyaCity lawyer Harrison Kinyanjui’s former partner has moved to court seeking to exhume their daughter’s remains arguing there was foul play in her death.In an application filed at the commercial court, Tabbyrose Wamwitha has accused Kinyanjui of being a free mason.'The Applicant herein believes that Harrison Kinyanjui practices and participates in harmful religious practices known as Free Mason' court documents state.Through lawyer Danstan Omari, Wamwitha claims their daughter died suddenly on October 14, 2017, at the MP Shah Hospital at around 6. 30am after being rushed to the hospital at around 4am.'The circumstances surrounding the deceased’s death would remain unraveled yet Wamwitha’s family has strong reasons to believe that there was foul play in the death of the minor' Omari argues.She wants the body exhumed so that she can conduct an independent autopsy then bury the child in her own land where she can see the grave when she wants.The child suffered from Down’s syndrome and heart complications prior to her death. Wamwitha claims that the father was never supportive of the child’s medical condition.According to court documents the child had a fever the day before and despite the mother insisting on taking her to hospital, Kinyanjui refused.'The applicant forcefully took the infant to the hospital and the next morning at around 4am and at 6. 30am the infant was pronounced dead' she claims.After the death of the infant, she says she suggested that the body should be buried at Langata cemetery or her land in Maai Mahiu after an autopsy had been done.However she alleges that unknown to her Kinyanjui changed the burial place to his property in Gatundu.He proceeded to remove the body of the deceased from the mortuary on October 2017 and had the same buried after a secret autopsy was conducted by a pathologist best known to him and she never got to see or have any access to the autopsy result,” court papers say.Wamwitha says since the burial of her daughter, Kinyanjui has made it difficult for her daughter because she can’t visit the grave.In response to the application Kinyanjui has opposed the exhumation of his late daughter as has been asked by the mother.The lawyer has dismissed claims by Wamwitha that he had anything to do with the death of their daughter.'The fourth defendant states that he loves his deceased infant as strongly in death as he always did from the date of her birth and states that the cited plaint is callous, diabolical and solely intent on in dignifying the deceased infant' court papers say.He also states that he will not stand by as his ex-lover wantonly denigrates the dignity of the deceased infant merely because their relationship collapsed on March 13 2018. He insists that they were never married as has been alleged by the mother of his child.Kinyanjui’s best friend, lawyer Geoffrey Makome, has sworn an affidavit vouching for his character saying he was a good father.Makome says it’s not true that Kinyanjui never attended to the deceased infant as had been alleged by the wife.'I know the said Tabbyrose Wamwitha as a disagreeable, abrasive and very aggressive and unreasonable woman, she would have totally wreaked havoc at both Kinyanjui’s office and farm were any such burial done secretly' Makome said.He also says she was never married to Kinyanjui as she had alleged in court. Wamwitha’s elder sister Anne Wangeci, has also supported Kinyanjui telling court not to allow the exhumation of her late niece.'I oppose any order to exhume the remains of my deceased niece as sought in this suit herein, and I am stunned that even such pleas were lodged,' read court documents.Wangeci also confirms what Makome had told court that her sister was never married to Kinyanjui.She also says contrary to the negative image created in the proceedings of the alleged secrecy by Kinyanjui of the burial of her niece, the immediate family of Wamwitha was aware and participated in every stage of the burial ceremony leading to the final burial of the deceased infant.'It is not therefore to allege that we as the family of Tabbyrose Wamwitha was not involved in the burial arrangements of the deceased infant. We were all involved on her side of family,' Wangeci said.

52. The publications by the 5th to 7th Respondents repeat almost verbatim the foregoing content in their own publications. Ex facie, the publications indirectly impute that the Applicant was a suspect in the death of his own daughter RH which is supposedly related to the Applicant’s involvement in occultic or freemasonry practices. Further that in a bid to cover up the cause of the death, the Applicant arranged for a secret autopsy in collusion with a certain pathologist. Evidently some of the actions attributed to the persons adversely named in the article would amount to criminal conduct attracting penal sanctions.

53. The Applicant strongly refuted the imputations as false, presenting his own version of events and most importantly, a copy of the autopsy report in respect of HR. He also pointed out that the 4th Respondent had never reported to police her suspicions against the Applicant, for investigation. If eventually found to be false, and not covered by the various defences raised by the Respondents, the imputations made by the Respondents against the Applicant would comprise an egregious form of defamation depicting the Applicant, a lawyer as a law breaker involved in dubious spiritual activities.

54. By their defence statement and replying to affidavit the 1st to 3rd Respondents assert that the above publication is not defamatory, plead justification, good faith, and qualified privilege. For their part the 5th to 7th Respondents equally deny that their publications were borne of malice, plead good faith, fair comment, and assert that the same were made on a privileged occasion. For her part, the 4th Respondent appears to plead justification and qualified privilege in addition to denying that the publications attributed to her or her co-Respondents were defamatory.

55. The foregoing notwithstanding, none of the Respondents, except the 4th Respondent attempted to demonstrate the truthfulness of their assertions. For her part, the 4th Respondent reiterated her claims in the miscellaneous cause and also exhibited copies of material contained in so-called free masonry literature which she claimed the Applicant owned. Besides, she claimed that the Applicant had narrated to her during their relationship, the rituals he engaged in as a free mason to which he was allegedly introduced by his mother. The fact of reading or owning such literature could not surely be evidence that the Applicant was possibly the ritual killer of his own daughter as alleged in the publications in question.

56. In so saying the court is fully alive to the words of Lord Coleridge CJ in Bonnard and another V Perryman (1891 -4) ALLER 968, later quoted by Denning MR in Fraser v Evans & Others, to the effect that:'Until it is clear that an alleged libel is untrue, it is not clear that any rights at all have been infringed, and the importance of leaving free speech unfettered is a strong reason in cases of libel for dealing most cautiously and warily with the granting of interim injunctions'.

57. In the court’s view however, while the evidence of the respective parties will be fully tested at the trial, the duty lay even at this stage with the Respondents to furnish some sort of material tending to support the alleged truthfulness of their publications. In Uhuru Muigai Kenyatta V Baraza Leonard [2011] eKLR the Supreme Court stated:'While taking the defence of justification, or qualified privilege in a defamation case, the defendant was required by law to establish the true facts and the plaintiff has no burden to prove the defence raised by the defendant. Once verified, the justification of qualified privilege does not inure the defendant and in any event, the onus that the same is true rests on the defendants to make it a fair publication.'

58. The defence of justification and privilege may be displaced by evidence of malice. It was held in Adam v Ward (1917) AC 309:'A privileged occasion is, in reference to qualified privilege an occasion where the person who makes the communication has an interest or duty, legal, social or to make it to the persons to whom it is made, and the person to whom it is made has a corresponding interest or duty to receive it. This reciprocity is essential.'

59. Further in Shah v Uganda Argus (1972) EA 80 it was held that a defendant is only entitled to protection of the privilege if he uses the occasion in accordance with the purpose for which the occasion arose, but he will not avail himself of such protection if he uses the occasion for improper or indirect motive. Comparing the 1st, 2nd, 3rd 5th, 6th 7th Respondents’ initial report with the parties’ pleadings in the miscellaneous cause as exhibited herein, it appears that the portions adverse to the Applicant contained in the pleadings of the 4th Respondent got extensive exposure.

60. And even though the said Respondents included references to the Applicant’s response in the miscellaneous cause, the references barely set out the substantive depositions in the Applicant’s affidavit in the cause. And specifically, the asserted cause of the minor’s death as contained in the Applicant’s affidavit and annexed copy of the autopsy of RH showing the cause of death to be due to respiratory failure secondary to pneumonia.

61. This even though by the time of the subsequent reports, the Applicant had reached out to the Respondents to protest the initial publications, apparently to no avail. Selective or unbalanced reporting of court proceedings or pleadings of one party in a case can hardly pass for accurate reporting and may in fact negate asserted good faith by the reporter. Ditto for failure to seek comment from the affected party, which in extreme cases could lead to an inference of recklessness.

62. Equally, the circumstances in which a publication is made could lead to a suggestion of malice. There is no indication whatsoever that the 4th Respondent had made a report concerning her suspicions against the Applicant to investigative authorities to inquire into the circumstances of the death of RH Or threats allegedly made to her life by the Applicant if she ever revealed his involvement in the so-called free masonry cult. The Applicant and the 4th Respondent were at the material time embroiled in a child custody dispute following what appears to be an acrimonious parting of ways. Could it be, as the Applicant suggests, that the publications by the 4th Respondent were a consequence of these events?

63. In Phineas Nyagah v Gilbert Imanyara [2013] eKLR the court held that :'Malice here does not necessarily mean spite or ill will but recklessness itself may be evidence of malice. Evidence of malice maybe found in the publication itself if the language used is utterly beyond or disproportionate to the facts.Malice may also be inferred from the relationship between the parties before or after the publication or in the conduct of the defendant in the course of the proceedings. Court should however be slow to draw the inference that a defendant was so far actuated by improper motives as to deprive him of the protection of privilege unless they are satisfied that he did not believe that what he said or wrote was true or that he was indifferent to its truth or falsely.'

64. As stated in Dorcas Florence Kombo V Royal Media Services [2014] eKLR:'Qualified privilege can be rebutted by proof of express malice, and malice in this connection may mean either lack of belief in the truth of the statement or the use of the privileged information for an improper purpose.'

65. The court is wary of saying more concerning this matter at this stage. Suffice to say that the Applicant has demonstrated a prima facie case. Equally, the loss of the Applicant’s reputation as an advocate through repeated publication of the kind of allegations pleaded herein appears real. The assertions made by each party will be determined through evidence at the trial, but no amount of damages could possibly compensate the Applicant for such loss if it is eventually found that the allegations are false and defamatory. See the case of Brigadier Arthur Ndoj Owuor (supra).

66. Certainly, while the litigation between the Applicant and the 4th Respondent subsists, the likelihood that more 'dirty linen' may be aired appears real. Freedom of the media and other persons to expression and which the 4th Respondent has strongly espoused is not absolute and in proper cases, the court may intervene on behalf of deserving parties. The court having reviewed all the relevant matters feels assured that this is a proper case for granting interim orders to restrain the Respondents.

67. In the circumstances, the Court will grant both the prayers identified as number 3 as contained in the two amended motions dated September 23, 2021, in the following terms:Pending the determination of this suit, the Respondents are hereby restrained, by themselves, their agents, servants or howsoever from publishing, continuing to publish, or further publishing in print or electronic media or uttering defamatory statements concerning the Applicant, or further disseminating the articles cited in the prayers, on any platform or media.

68. Costs will be in the cause.

DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 22nd DAY OF DECEMBER 2022C.MEOLIJUDGEIn the presence of:For the Applicant: N/AFor the 1st to 3rd Respondents: N/AFor the 4th Respondent: Ms. Omuoyo h/b for Mr. OmariFor the 5th to 7th Respondents: Ms. Odeo h/b for Mrs. Ochieng