https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11164

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT NAIROBI** **CIVIL DIVISION** **CIVIL CASE NO. E292 OF 2025** **HON. JUSTICE ISAAC LENAOLA………….PLAINTIFF/APPLICANT** **VERSUS** **NELSON HAVI ANDAYI…..……………DEFENDANT/RESPONDENT** **RULING** 1. For determination before the court is the **motion** **dated 04/11/2025** filed by **Hon.** **Justice Isaac Lenaola** *(hereafter the Plaintiff/Applicant)* against **Nelson Havi Andayi** *(hereafter the Defendant/Respondent)* seeking *inter alia*-; 2. *Spent* 3. *Spent* 4. *That pending the hearing and final determination of this suit, this Honourable Court be pleased to issue a temporary injunction restraining the Respondent, whether by himself, his agents, servants, employees, or any other person acting on his behalf or under his instruction, from publishing, writing, broadcasting, sharing, or causing to be published in any manner whatsoever, whether in print, electronically, or on any digital or social media platform, including but not limited to his X (formerly Twitter) handle @NelsonHavi, any further defamatory, libelous, scandalous, or otherwise injurious statements, comments, or innuendos concerning the Plaintiff, his character, his professional conduct, or his personal integrity.* 5. *That pending the hearing and final determination of the main suit, this Honourable Court be pleased to issue a mandatory injunction compelling the Respondent to immediately retract, delete and pull down from his X (formerly Twitter) handle@NelsonHavi the following specific defamatory posts, tweets, and videos:* 6. *The video published on 9th September 2025, accessible at:* [*https://x.com/NelsonHavi/status/1965411220711977393*](https://x.com/NelsonHavi/status/1965411220711977393) 7. *The post published on 10th September 2025 accessible at:* [*https://x.com/NelsonHavi/status/1965645029428400144*](https://x.com/NelsonHavi/status/1965645029428400144) 1. *The post published on 16th September 2025, accessible at:* [*https://x.com/NelsonHavi/status/1968007411731665046*](https://x.com/NelsonHavi/status/1968007411731665046) 1. *The post published on 9th October 2025, accessible at:* [*https://x.com/NelsonHavi/status/1976290096677605466*](https://x.com/NelsonHavi/status/1976290096677605466) 1. *The post published on 16th October 2025, accessible at:* [*https://x.com/NelsonHavi/status/1978684627024777416*](https://x.com/NelsonHavi/status/1978684627024777416) 1. *The post published on 1st November 2025, accessible at:* [*https://x.com/NelsonHavi status/1984593542308905366*](https://x.com/NelsonHavi%20status/1984593542308905366) 1. *That the costs of this motion be provided for.* 2. The motion is brought pursuant to **Section 1A, 1B & 3A** of the **Civil Procedure Act (CPA), Orders 40 Rule 1 & 2** and **Order 51 Rule 1** of the **Civil Procedure Rules (CPR)** and on grounds on the face of the motion amplified in the supporting affidavit deposed by **Hon.** **Justice Isaac Lenaola** on an even date. 3. **Nelson Havi Andayi** opposes the motion by way of a replying affidavit sworn on 12**/11/2025.** 4. Directions were issued on disposal of the Applicant’s motion by way of written submissions. The parties duly complied and were equally accorded an opportunity to highlight the same. 5. That said, having considered the rival affidavit material and submissions the issues that arise for **determination concern: -** 6. *Whether the Plaintiff/Applicant has met the threshold for grant of temporary and mandatory injunctions pending determination of the suit?* 7. *Whether the reliefs sought for are tenable in the circumstance?* 8. *Who ought to bear the costs of the motion?* ***Whether the Plaintiff/Applicant has met the threshold for grant of temporary and mandatory injunctions pending determination of the suit and whether the reliefs sought for are tenable in the circumstance?*** **The Law and underpinning Legal Principles** 1. The Court proposes to contemporaneously address issues (a) & (b) as coined above. In presenting the instant motion, the Applicant has relied on among others provisions of the **Section 3A** of the **CPA**, which specifically reserves *“the inherent power of the court “to make such orders as may be necessary for ends of justice or to prevent abuse of the process of the court”*, to wit, this Court’s inherent powers was judiciously addressed by the Court of Appeal in **Rose Njoki King’au & Micugu Wagathara v Shaba Trustees Limited & City Council of Nairobi [2018] KECA 216 (KLR)** and requires no restatement. 2. Alongside the above, the Applicant has equally cited **Order 40** of the **CPR.** As concerns the principles governing the grant of an interlocutory injunction, the same has since long been settled in **Giella v Cassman Brown & Co. Ltd [1973] EA 358.** 3. Restating, the settled position in the **Giella** case, the Court of Appeal in **Cheserem v Immediate Media services [2000] 2EA 371** while addressing itself on the principles for the grant of injunctions in defamation cases added that the applicant has to satisfy the triple requirements of -: 4. *Establishing his case only at a prima facie level.* 5. *Demonstrating irreparable injury if a temporary injunction is not granted and;* 6. *Assuage any doubts as to (b) by showing that the balance of convenience is in his favour.* 7. Additionally, the Court of Appeal in **Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] KECA 606 (KLR)**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. 8. Further, the Court stated that the three (3) conditions apply separately as distinct and logical hurdles to be surmounted sequentially by an 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. 9. And 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. 10. Meanwhile, the Court in **Cheserem** (supra) particularly addressed itself as follows concerning granting of an interlocutory injunction in defamations cases -: *“……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.* *………..* *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”.* 1. As to what constitutes a*prima facie case* with a probability of success, is one that a Court would conclude upon material presented before it, that there exists a right that has been violated or infringed by the opposite party that calls for explanation as held in the **Mrao v. First American Bank of Kenya Ltd & 2 others [2003] eKLR**. The aforestated decisions have been reaffirmed and applied by superior Courts in innumerable subsequent decisions. **Applicant’s Case** 1. With the above principles in reserve, by his affidavit material, the Applicant posited that he is a Judge of the Supreme Court of Kenya, and has over many years built an extensive judicial and professional reputation, which has between 09/09/2025 and 01/11/2025, been subjected to a sustained and coordinated campaign of defamatory publications by the Respondent, on his X (formerly Twitter)account, with approximately 1.4 million followers. 2. That by way of a series of videos and posts published on the Respondent’s X account *@NelsonHavi*, the latter allegedly describes him as corrupt, a dangerous criminal, a pervert, unfit to hold judicial office, called for the boycott of his Court, and accused him of corruption, abuse of office and media manipulation. 3. He goes on to state that each publication attracted substantial engagement through comments, reposts, likes, bookmarks and views, thereby significantly amplifying the alleged defamatory content whereas the publications remain publicly accessible and continue to be disseminated globally, and that the natural and ordinary meaning is to portray him as dishonest, corrupt, immoral, criminal, lacking integrity, unfit to serve as a judge, and deserving of public contempt. 4. The Applicant contends that the allegations are entirely false, fabricated and malicious, made with reckless disregard for the truth, and that the Respondent deliberately bypassed lawful constitutional and statutory mechanisms for lodging complaints against judges in favour of conducting a public campaign on social media. 5. The Judge further avers that by a WhatsApp exchange, the Respondent acknowledged that he was not the target of his campaign, that the publications were motivated by malice, were intended to undermine the Chief Justice of the Republic of Kenya, erode public confidence in the Supreme Court, weaken judicial independence, and discredit him rather than constitute fair comment. 6. The Applicant further deposes that the continuing malicious publications have caused severe and irreparable injury to his personal and professional reputation, exposed him to public hatred, ridicule and contempt, distressed his family, affected perceptions among colleagues and the international legal community, and continue to inflict fresh harm because they remain live on the Respondent's X profile. Meanwhile, the Respondent has shown no intention of retracting the publications and instead intends to persist with further defamatory statements, thereby necessitating the instant application to restrain any further publications and compel the immediate retraction, deletion and removal of the existing posts. 7. The Applicant asserts that damages alone would not adequately compensate him for the continuing injury whereas the Respondent would suffer no prejudice by being restrained from publishing unlawful defamatory material while remaining free to express lawful criticism and pursue appropriate complaint mechanisms. 8. The Applicant urges that unless the application is granted, the pending suit itself would be prejudiced because the continuing campaign would create a toxic public atmosphere, render any eventual judgment in his favour a hollow victory, and leave his reputation irretrievably damaged before the suit is determined. **Respondent’s Case** 1. In riposte, the Respondent takes issue with orders sought for by the Applicant on the grounds that the impugned publications are not defamatory but constitute truthful statements and fair comment on matters of public interest concerning alleged corruption in the Judiciary and the Applicant’s conduct in his public capacity as a Judge of the Supreme Court. 2. While the Respondent admits publishing the impugned statements, he denies that they were false or malicious, meanwhile asserts the defences of justification and fair comment, whereas he states that the Applicant's reputation was already the subject of public controversy arising from previous allegations of judicial misconduct, corruption and bribery reported in the media, pending and previous petitions before the Judicial Service Commission, and allegations relating to the estate of the late John Keen. 3. Further referring to various judicial proceedings, pleadings, petitions and other documentary material, he contends that his statements were substantially true, including allegations concerning the Applicant's conduct in the Benjoh Amalgamated Ltd & Anor matter, the existence of petitions seeking the Applicant's removal from office, allegations that the Applicant procured a judgment through corruption, was appointed executor under the disputed John Keen Will, improperly intermeddling in the latter’s estate, and remains in office only by virtue of conservatory orders restraining investigations by the Judicial Service Commission. 4. The Respondent further asserts being in possession of additional evidence of the Applicant's alleged gross misconduct and inappropriate personal conduct, to wit, a judge implicated in such misconduct is unfit to continue serving therefore his publications were made in good faith, without malice, and in discharge of what he considers his duty to inform the public about corruption in the Judiciary. 5. Further, the existence of widespread corruption within the Judiciary as lamented by a memorandum by the Law Society of Kenya, statements by former Presidents of the Law Society, the Chief Justice's acknowledgement of corruption, and the prevalence of complaints before the Judicial Service Commission, the purported impugned publications were justified. 6. The Respondent additionally contends that the Applicant has no reputation capable of being injured in defamation given that the impugned words are incapable of bearing the defamatory meanings pleaded by the Applicant. Further, the Applicant has failed to identify any person who understood the publications in the defamatory sense as alleged meanwhile given his defence and evidence in support thereof, the law does not favour the grant of the orders as sought for by the Applicant. 7. Accordingly, it is the Respondent’s position that the Applicant has failed to establish a *prima facie* case or the *exceptional circumstances necessary* to justify restraining further publications or compelling the removal of the impugned posts, to wit, the application ought to be dismissed with costs. **Analysis and determination** 1. With above in mind, the Court has taken the liberty of reviewing the varied impugned publications set out in part at Paragraph 5, 7, 9, 11, 13, 15 & 20 of the Applicant’s affidavit in support of the motion**.** 2. In my estimation, the publications, taken collectively, e*x facie*, impute that the Applicant is a corrupt, dishonest and dangerous individual who has engaged in criminal conduct, abused his judicial office, improperly interfered in legal and succession matters, lacks moral integrity, is guilty of perverse and reprehensible behavior, manipulates the media to suppress evidence of his alleged misconduct, and is unfit to continue serving as a Justice of the Supreme Court. 3. The publications further portrays the Judge as having brought the Judiciary and the legal profession into disrepute, deserving of public condemnation thus necessitating a professional boycott from the Court he serves in whereas the Respondent further suggests that credible evidence exists to substantiate these allegations, thereby inviting the public to regard him as unworthy of the trust, confidence and authority reposed in him as a judicial officer. 4. The Applicant nevertheless maintains that the publications have been actuated by malice by dint of a WhatsApp exchange between himself and Respondent as earlier noted elsewhere in this ruling. 5. While the evidence of the respective parties will be fully tested at the trial, the duty lay even at this stage with the Respondent to furnish tangible material tending to support his intended defence of justification and fair comment. I have taken the liberty of reviewing the Respondent’s response alongside the voluminous material attached thereto, **(Annexure NH-1)**, applied to shore up his intended defence and in deflection of the reliefs as sought for by the Applicant. 6. Here, **Gatembu, JA** in **Munene v Gisesa & another [2025] KECA 2115 (KLR)** while addressing himself to the defence of fair comment, cited the Supreme Court of England decision of **Spiller vs. Joseph [2010] UKSC 53; [2011] 1 A.C.852** where he observed that-; *“6 …….the elements that a person relying on the defence of fair comment needs to establish thus: the comment must be on a matter of public interest; the comment must be recognizable as comment, as distinct from an imputation of fact; the comment must be based on facts which are true or protected by privilege; the comment must explicitly or implicitly indicate, at least in general terms, the facts on which it is based; and the comment must be one which could have been made by an honest person, however prejudiced he might be, and however exaggerated or obstinate his views.* **See also-:** Supreme Court of Canada in **Wilradeolia v Simpson (2008) SCC 40** as cited in **Mshindi & another v Ngenye [2024] KECA 1332 (KLR)** 1. Concerning the defence of justification, the Court in **Hon. Uhuru Muigai Kenyatta v Baraza Limited [2011] KEHC 1506 (KLR)** observed that-; *“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 or qualified privilege does not injure the defendant and in any event, the onus that the same is true rests on the defendants to make it a fair publication.”* 1. With the above in reserve, this Court takes judicial notice of the Applicant’s position and office he holds in the Judiciary, as deposed in his affidavit. I am alive to the fact that publication concerning the Applicant would in most circumstances be a matter of public interest meanwhile would in all probability be protected within the spheres of free speech, if not defamatory. 2. Further, it would not be far-fetched to deduce from the Respondent’s retort, that his contention concerns the fact that the Applicant’s suit and accompanying motion seeks to impede public discourse, audit and criticism of the judiciary or its officers while placing an undesirable fetter on freedom of speech. 3. To the above end, the Court is copiously alive to the words of **Lord Coleridge** **C.J** in **Bonnard v Perryman** **[1891–94] All ER Rep 965, 968 (CA),** 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”.* 1. Consequently, the Court is wary of saying more concerning this matter, for the obvious reason that it may prejudice the trial. While the Court is aware that it is duty bound to champion the rights under **Article 33 of the constitution** that guarantees the freedom of expression, suffice to say, it would appear that the Applicant has demonstrated a *prima facie* case. 2. Conversely, I am not fully persuaded by the Respondent’s arguments, that if the Court were to interrogate the latter further, it would risk prejudicing the trial of the matter. 3. While I believe the intention of the Respondent concerns bringing to the fore the afflictions that plague the judiciary or some of its officers, that hinder the due administration of justice, I agree with the Applicant that the law clearly provides for avenues within which such activity may be undertaken, which does not include persecution before the Court of public opinion. 4. The Respondent's deliberate choice to disseminate the impugned publications through his "X" handle, shielded by the detachment afforded by the digital medium, underscores the inherent difficulty of holding him to account for the veracity of the allegations propagated therein. 5. Therefore, in the Court's view, the impugned posts cannot properly be characterized as an exercise of the constitutional right to freedom of expression. Rather, they bear the hallmarks of internet trolling, calculated to malign the Applicant's reputation under the guise of online commentary, and are therefore situated within the realm of publication(s) intended to defame. 6. In the end, the assertions made by each party will be tested through evidence at the trial, but clearly, no award of damages could possibly compensate the Applicant for such loss of reputation if it were eventually found that the allegations as published by the Respondent were false and defamatory. See the case of **Brigadier Arthur Ndoj Owuor** **v The Standard Limited [2011] KEHC 2612 (KLR).** 7. Therefore, without addressing the issue(s) further it would seem that Applicant has also jointly established the potential of suffering *irreparable harm* with the *balance of convenience* tilting in his favour to warrant granting of temporary injunction. 1. On the Applicant’s quest for a mandatory injunction, the Court is not persuaded that it would be proper to grant the same at this point given that the respective parties' evidence has not been tested by way of trial. As held by the Court of Appeal in **Kamau Mucuha v Ripples LTD (1993) eKLR** in reiterating the decision in **Kenya Breweries Ltd. v Washington Okeyo [2002] eKLR:** *“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 ... 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 higher 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 required for a prohibitory injunction.”* 1. Whereas in **Nation Media Group & 2 Others V. John Harun Mwau [2014] KECA 308 (KLR)** the Court of Appeal held that a temporary mandatory injunction *“can only be granted in exceptional and in the clearest of cases”,* to wit, it behooves this Court to mention in conclusion, that it is acutely aware that a name is the only thing a person has and that once it is destroyed or lost it may never be redeemed as held in the case of **Amir Grinberg & 2 Others v Andrew Baker [2021] KEHC 8216 (KLR).** 2. Ultimately, the Court is persuaded thatthe Applicant has demonstrated that he is deserving of the reliefs sought while keeping in mind that it would be a grave injustice to interfere with freedom of expression, which interference should be exercised in very extreme circumstances particularly at the interlocutory stage of proceedings. **Final Disposition** 1. **The upshot is that the Court finds merit in the Applicant’s motion dated 04/11/2025 and the commending order would entail-;** 2. **That pending the hearing and final determination of this suit, this Court issues a temporary injunction restraining the Defendant/Respondent, whether by himself, his agents, servants, employees, or any other person acting on his behalf or under his instruction, from publishing, writing, broadcasting, sharing, or causing to be published in any manner whatsoever, whether in print, electronically, or on any digital or social media platform, including but not limited to his X handle @NelsonHavi, any further defamatory, libelous, scandalous, or otherwise injurious statements, comments, or innuendos concerning the Plaintiff/Applicant, his character, his professional conduct, or his personal integrity.** 3. **The Plaintiff/Applicant is awarded costs of the motion.** **Orders accordingly** **Delivered Dated and Signed at Nairobi this 23rd Day of July 2026.** **……………………….** **JANET MULWA.** **JUDGE**