[2022] KEHC 10378 (KLR)

Mediheal Hospital & Fertility Centre Limited v Alai (Miscellaneous Application E155 of 2021) [2022] KEHC 10378 (KLR) (Civ) (1 July 2022) (Ruling)

Neutral citation: [2022] KEHC 10378 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Miscellaneous Application E155 of 2021

JK Sergon, J

July 1, 2022

Between

Mediheal Hospital & Fertility Centre Limited

Applicant

and

Robert Alai

Respondent

Ruling

1. The applicant herein has lodged the Notice of Motion dated April 16, 2021. The Motion is supported by both the grounds laid out on the body thereof and the facts stated in the sworn affidavit of Hon. Dr. Swarup Ranjan Mishra. The applicant sought for the orders hereunder:a.Spent.b.Thatthis Honourable Court do find the respondent to be in contempt of court in respect of his Twitter posts made on April 8, 2021in relation to allegations of corruption against Honourable Mr Justice Mbogholi, Lady Justice Jaqueline Kamau, Justice Said Juma Chitembwe and the applicant.c.That the respondent be committed to civil jail for a period of not more than six months for the said contempt of court.d.Thatthe costs of the application be paid by the respondent.

2. The application stands opposed by way of the replying affidavit sworn by the respondent on November 22, 2021.

3. The parties were directed to file written submissions on the instant Motion. At the time of writing this ruling, only the submissions by the applicant had been availed for this court’s reference.

4. I have considered the grounds laid out on the face of the Motion; the facts deponed in the affidavits in support of and in opposition thereto; and the submissions on record plus the authorities cited therein.

5. A brief background of the matter as stated by the parties is that the applicant instituted a claim for defamation against the respondent namely HCCC NO. E086 OF 2021 (“the primary suit”) by way of the plaint dated April 6, 2021and sought for various reliefs including damages and injunctive orders.

6. The plaint was filed together with the application of like date in which the applicant sought for interlocutory injunctive orders pending the hearing and determination of the claim.

7. The record shows that when the aforesaid application was placed before the court (Honourable Mr. Justice Mbogholi Msagha) on April 7, 2021he granted interim injunctive orders and gave directions for hearing of the application interparties, by way of the order issued on April 8, 2021.

8. Going by the record, the applicant subsequently filed the application dated April 9, 2021(“the second application”) and sought for leave of the court to commence contempt of court proceedings against the respondent.

9. The second application was placed before the court and upon considering it, granted the applicant leave of 14 days within which to institute contempt of court proceedings against the respondent, vide the order issued on April 15, 2021. This order triggered the Motion now before this court.

10. From my study of the instant Motion, it is clear that the substantive orders sought are that the respondent herein be found to be in contempt of court in respect to the tweets posted on April 8, 2021on the Twitter platform and that he be punished accordingly.

11. On the part of the applicant, it is stated and submitted that the tweets in question were made following the issuance of interim injunctive orders by the court on the aforementioned April 8, 2021, implying that the applicant had bribed the court into issuing the said injunctive orders; and further implying that there have been accusations and instances of corruption among judges in respect to the primary suit; and which tweets are not only offensive but also contemptuous in nature.

12. The applicant relies inter alia, on the case of Republic v Tony Gachoka &another [1999] eKLR whereby the Court of Appeal determined as follows:“I agree that the articles complained of by the Attorney General do constitute a contempt of this Court and that the first and second respondents cannot offer any lawful justification for their publications. The first and second respondents are guilty of contempt of this Court and I convict them accordingly.In respect of the first respondent, I would propose that he be committed to prison for six (6) months. I would impose a fine of KShs 1,000,000 against the second respondent and unless and until the fine is paid it must forthwith cease publication and sale of its magazine the post on sunday. I make no order as to costs.”

13. In response, the respondent states in his replying affidavit that he ought not to be found in contempt of court for the simple reason that he did not post the alleged tweets.

14. The respondent further states that the Twitter account from which the alleged tweets emanated does not belong to him and was likely opened by a person either sharing his name or using his name; which position has also been pleaded in his statement of defence in denial of the claims made in the primary suit, as well as in his replying affidavit to the application dated April 6, 2021 mentioned hereinabove.

15. For the foregoing reasons, the respondent urges that it would only be fair to await the outcome of the primary suit since the ownership of the account in question is in dispute.

16. Section 5 of the Judicature Act, cap 8 Laws of Kenya cited in the submissions by the applicant is the paramount substantive law granting superior courts the power to punish for contempt. The section stipulates the following:“(1) The High Court and the Court of Appeal shall have the same power to punish for contempt of court as is for the time being possessed by the High Court of Justice in England, and that power shall extend to upholding the authority and dignity of subordinate courts. …”

17. The term ‘contempt’ is defined in the Black’s Law Dictionaryas follows:“a disregard of, or disobedience to, the rules or orders of a legislative or judicial body, or an interruption of its proceedings by disorderly behavior or insolent language, in its presence or so near thereto as to disturb the proceedings or to impair the respect due to such a body.”

18. It is apparent from the material placed before this court that the subject of whether the respondent indeed posted the tweets in question and whether he owns the Twitter account in question constitute the substratum of the claim in the primary suit and have also been raised in response to the application seeking for interlocutory injunctive orders, both of which are yet to be ventilated and determined by the court.

19. It is therefore clear that there I doubt whether the allegation of contempt can be attributed to the respondent.

20. In the end, I find the motion dated April 16, 2021to be without merit. The same is dismissed with costs abiding the outcome of the suit pending before this court ie HCCC no E086 of 2021.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 1ST DAY OF JULY, 2022. ………………………J. K. SERGONJUDGEIn the presence of:……………………………. for the Appellant/Applicant………………………… for the Respondent