https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12566

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CIVIL CASE NO. E128 OF 2026** **HON. KIMANI ICHUNG'WAH...................PLAINTIFF/APPLICANT** **VERSUS** **THE STANDARD GROUP PLC..........DEFENDANT/RESPONDENT** **RULING** 1. Before Court for determination is the Notice of Motion dated 20th April 2026 expressed to be brought under Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act, Order 40 Rule 1 and Order 50 Rule 1 of the Civil Procedure Rules and all other enabling provisions of the law. The Plaintiff/Applicant is seeking for orders that: 1. Spent 2. Spent 3. Pending the hearing and determination of this suit, a temporary injunction be issued restraining the Defendant/Respondent whether by itself, its agents, employees or any person acting under its direction from further publishing, posting, reposting and or republishing the defamatory information in any manner whatsoever about the plaintiff/Applicant 4. Pending the hearing and determination of this suit, an order be issued directing the Defendant /Respondent to remove, pull down, expunge, retract and erase from all forms of social media platforms in any event, not more than 24 hours of service of the order, the allegations uttered 5. costs of the application be in the cause 2. The application is supported by the affidavit sworn by the Plaintiff/Applicant on 20th April 2026 and the annexures thereto. 3. The application arises from an article published by the Defendant in the Sunday Standard newspaper and on its digital platforms under the headline ***“Drunk with Power – Ichung'wah's polished goon tag grows as he spews insults, threatens dissent.”*** 4. The Plaintiff contends that the publication is false, malicious and defamatory and portrays him as a violent, abusive and intolerant political leader. He avers that the publication has greatly injured his reputation both nationally and internationally and continues to do so through its online accessibility. 5. The Plaintiff further contends that unless restrained by the Court, the Defendant will continue publishing and republishing the impugned material thereby aggravating the injury already occasioned to his reputation. 6. The Defendant opposes the application through Grounds of Opposition dated 29th May,2026. It contends that the Plaintiff/ has failed to meet the threshold for grant of an interlocutory injunction in defamation proceedings. That there is no evidence of any threatened republication, that damages remain an adequate remedy should the Plaintiff ultimately succeed and that the orders sought amount to unconstitutional prior restraint upon media freedom guaranteed under Article 34 of the Constitution. 7. The Defendant/Respondents states that the Plaintiff/Applicant is seeking mandatory injunctive reliefs at an interlocutory stage, which is a final and determinative order that cannot properly be granted before full hearing of the case. **Parties’ submissions** 1. The Plaintiff submits that he has established a prima facie case because the impugned article is plainly defamatory on its face and was actuated by malice. He argues that his standing as a public officer has been seriously damaged and that continued online publication causes continuing injury incapable of adequate compensation. The Plaintiff urges the Court to protect his constitutional right to dignity under Article 28 and his reputation pending determination of the suit. 2. The Defendant submits that injunctions in defamation matters are granted only in the clearest of cases because of their direct impact on freedom of expression guaranteed under Articles 33 and 34 of the Constitution. The Defendant relies on **Micah Cheserem v Immediate Media Services**, **William Kabogo Gitau v Standard Group Ltd & Others**, **Ann Waiguru v Bloggers Association of Kenya** and other authorities for the proposition that where the alleged defamatory publication is capable of being defended through recognized defences, such as justification, fair comment or qualified privilege, interlocutory injunctions ought not to issue. **Issues for determination** 1. The two issues that would arise for determination are, whether the Applicant has satisfied the legal threshold for the grant of an interlocutory injunctive relief in a defamation suit and who should bear the costs of the Application **Analysis and determination** 1. According to **Black’s Law Dictionary, 10th Edition at page 506,** defamation is defined as: ***“Malicious or groundless harm to the reputation or good name by the making of a false statement to a third person. If the alleged defamation involves a matter of public concern, the plaintiff is constitutionally required to prove both the statement’s falsity and the defendant’s fault.”*** 1. In the case of **Johnson v Nation Media Group Plc & 2 others [2025] KEHC 13737 (KLR)**, the Court directed itself as follows: ***‘This being an application for interlocutory injunction, it has to first meet the legal threshold of the three pillars set in*** ***Giella v. Casman Brown [1973] EA 358.*** The said three pillars are: (a)that the Applicant has established a prima facie case with a probability of success; (b) that the applicant will suffer irreparable injury incapable of compensation by damages and (c) where in doubt, the court will consider the balance of convenience. 1. In defamation suits and those for press gag orders, such as this suit, the Application has to pass an additional test. That of balancing two constitutional imperatives, namely, (a) press freedom (free press), and (b) the Plaintiff’s right to reputation and protection of dignity. 1. This is a delicate balancing act. In defamation suits therefore, the legal threshold for interim injunctions and interlocutory injunctions, is essentially higher than the one set out in Giella v. Cassman Brown. 2. The Court of Appeal in the case of **Wycliffe A. Swanya v Toyota East Africa Ltd & another [2009] eKLR**, as rightly cited in the case of **Nzibo v Nation Media Group Limited & another [2024] KEHC 12720 (KLR),** stated that in a suit founded on defamation the plaintiff must prove the following elements: - 3. ***That the matter of which the plaintiff complains of is defamatory in character.*** ***ii. That the defamatory statement or utterance was published by the defendants.*** ***iii. That it was published maliciously.*** ***iv. In slander, subject to certain exceptions, that the plaintiff has suffered special damage.*** 1. The substance of the above elements will however be put to test during hearing of the main suit herein, which will finally determine the rights of the parties before court. 2. Article 34 of the Constitution grants freedom of the press and for this reason, the bar for interlocutory injunctions is higher and would thus require the circumstances illustrating the alleged defamation to be clear and deserving. The consideration of the court should therefore be cautionary. 3. In the case of **Micah Cheserem v Immediate Media Services & 4 others [2000] eKLR,** the court stated as follows: ***“…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.”*** 1. The present application concerns an alleged defamatory publication. Courts have consistently held that injunctions in defamation proceedings stand on a different footing from ordinary commercial disputes because they directly affect freedom of expression and media freedom. In **Micah Cheserem v Immediate Media Services (2007)**, the Court observed that interlocutory injunctions in libel actions should issue only in the clearest cases where it is obvious that the impugned words are defamatory and that no sustainable defence can succeed. Similar reasoning was adopted in **William Kabogo Gitau v Standard Group Ltd & Others [2011] eKLR** and **Ann Waiguru v Bloggers Association of Kenya [2020] eKLR**. 2. The rationale is evident. At an interlocutory stage the Court has not heard evidence. It would therefore be inappropriate to determine contested questions of truth, meaning, fair comment, public interest or privilege before trial. 3. That said, and applying the test for granting an injunction as set out *i*n**Giella v. Casman Brown [1973] EA 358**, the Applicant must demonstrate as follows: **a) Whether a prima facie case has been established** 1. The Plaintiff has exhibited the impugned publication and contends that it portrays him as a violent political actor and criminal element. There is little doubt that the publication contains words capable of affecting reputation. However, whether those words are in law defamatory depends upon several matters that remain disputed, including their ordinary meaning, the context in which they were published, whether they constitute comment rather than fact, whether they are substantially true and whether any applicable legal defence is available. Those questions cannot properly be resolved on affidavit evidence alone. 2. The Defendant has expressly indicated its intention to defend the publication. At this stage the Court cannot conclude that those proposed defences are obviously unsustainable or frivolous. 3. Consequently, while the Plaintiff may have demonstrated that there exists a serious question to be tried, this Court cannot conclude that this is one of the exceptional cases where the publication is manifestly indefensible. **b)** **whether the Applicant will suffer irreparable injury incapable of compensation by damages** 1. Reputation is among the most valuable assets an individual possesses. Article 28 of the Constitution protects every person’s inherent dignity, while Article 31 protects aspects of personal autonomy and privacy. Nevertheless, the law of defamation has historically recognized damages as the principal remedy for injury to reputation. 2. Indeed, the Plaintiff himself seeks general, aggravated and exemplary damages in the substantive suit, an acknowledgment that monetary compensation remains one of the available remedies should liability ultimately be established. I am not therefore persuaded that the Plaintiff/Applicant has demonstrated irreparable injury of such exceptional nature as to warrant interlocutory restraint. **c) Balance of convenience** 1. This application requires the Court to balance two competing constitutional rights. On one hand stands the Plaintiff’s constitutional entitlement to dignity and protection of reputation. On the other hand, stands the Defendant's rights under Articles 33 and 34 guaranteeing freedoms of expression and media freedom. Neither right is absolute. 2. However, granting the orders sought at this stage of the proceedings would effectively venture into the dispute before its merits have been judicially determined. Such prior restraint has consistently been regarded as an exceptional remedy reserved for the clearest cases. Having considered the material before me, I am unable to conclude that this matter falls within that exceptional category. As such, the balance of convenience will not favour granting of the orders sought at this stage. **Mandatory Injunction** 1. The Plaintiff also seeks an order compelling removal of the impugned publication from all digital platforms. This is plainly a mandatory injunction. The law relating to mandatory injunctions was settled in **Locabail International Finance Ltd vs Agro-Export & Another [1986] 1 ALL ER 901**, where the Court held that such relief should only be granted in special circumstances and where the Court is satisfied that the case is unusually clear. 2. Ordering removal of the publication would substantially grant the Plaintiff the principal relief sought in the suit before hearing evidence. Such an order would effectively determine the dispute at an interlocutory stage. The present dispute raises contested issues requiring full trial. This Court is not, in the circumstances, persuaded that the stringent threshold for a mandatory injunction has been met. 3. Finally, the Plaintiff/Applicant has also urged the Court to restrain future publication. Save for the publication already complained of and its continued availability online, there is no evidence before Court demonstrating any intention by the Defendant to publish or republish further articles concerning the Plaintiff. **Disposition** 1. Having carefully considered the Motion, the affidavit in support, the Grounds of Opposition, the rival submissions and the authorities relied upon by the parties, I find that the Plaintiff has not demonstrated that this is one of those exceptional defamation cases warranting interlocutory restraint. Equally, the Plaintiff has failed to establish the special circumstances necessary for the grant of a mandatory injunction directing removal of the impugned publication before the main trial of the suit. 2. Consequently, the Notice of Motion dated 20th April 2026 is hereby dismissed. Costs of the application shall abide the outcome of the main suit. 3. Parties are directed to appear before the Deputy Registrar for pre trial directions, to pave way for the main suit to be set down for hearing. **DATED, SIGNED AND DELIVERED AT NAIROBI THIS 30th DAY OF JULY, 2026, VIRTUALLY, THROUGH THE MICROSOFT TEAMS PLATFORM.** **KENNEDY KANDET** **JUDGE** **IN THE PRESENCE OF:** **MS GATHIRA HB FOR DR KAMOTHO FOR THE APPLICANT.** **CHEBON HB FOR CHEPTANUI FOR THE RESPONDENT.** **COURT ASSISTANT: AGGREY.**