[2022] KEHC 17091 (KLR)

Mwaganda v Mbangha (Civil Case E004 of 2022) [2022] KEHC 17091 (KLR) (4 November 2022) (Ruling)

Neutral citation: [2022] KEHC 17091 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Case E004 of 2022

MN Mwangi, J

November 4, 2022

Between

Victor Gogo Mwaganda

Plaintiff

and

Adams Jembe Mbangha

Defendant

Ruling

1. The plaintiff filed a Notice of Motion dated February 3, 2022 brought under the provisions of Sections 1A, 1B, 3A & 63(e) of the Civil Procedure Act and Order 40 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules, 2010 and all other enabling provisions of the law seeking the following orders-i.Spent;ii.Spent;iii.That a temporary injunction do issue restraining the defendant by himself, his servant and/or agents or otherwise from in any way publishing, circulating or in any way conveying, defamatory material to any other person or body against the plaintiff herein pending the hearing and determination of this suit; andiv.That the defendant bears the costs of this application.

2. The application is supported by affidavits sworn on February 3, 2022 and April 25, 2022 by Victor Gogo Mwaganda, the plaintiff herein. In response thereto, the defendant, Adams Jembe Mbangha, filed a replying affidavit sworn on March 14, 2022.

3. The application was canvassed by way of written submissions. The plaintiff’s submissions were filed on April 27, 2022 by the law firm of Miller & Company Advocates. The defendant neither filed written submissions nor made any oral submissions in Court.

4. Ms. Kaguri, learned Counsel for the plaintiff relied on the case of Micah Cheserem v Immediate Media Services [2000] 1EA 371 and submitted that the words complained of herein are indeed self-explanatory defamatory (sic). In addition, she submitted that the defendant had not pleaded justification or fair comment of the publications but instead pleaded that the said publications were expressed as counter opinion and social debate. She urged this Court to take judicial notice of the published contents which have not been justified as correct, vis a vis the political period, which have the likelihood of completely ruining the plaintiff’s political career.

5. Ms Kaguri referred to theGatley on Libel and Slander, 12th Edition, Sweet and Maxwell at paragraph 25. 2 where guidance is given on what should be considered when dealing with an interlocutory prohibitory injunction in defamation cases. She submitted that the first consideration is whether the statement is inarguably defamatory. She stated that looking at paragraph 17 of the replying affidavit, it is not in dispute that the defendant published the subject publications and therefore, this Court has to determine whether the words complained of were defamatory in character in their natural and ordinary meaning or by innuendo and tended to lower the plaintiff’s reputation in the estimation of ordinary, just and reasonable men. She relied on the case of Musikari Kombo v Royal Media Services Limited [2018] eKLR, where the Court cited the Halsbury’s Laws of England 4th Edition Vol 28 at page 23 and the Court of Appeal decision in SMW v ZWM [2015] eKLR

6. It was submitted by Ms Kaguri that according to the plaintiff, the publications published by the defendant were the pictures and texts aimed at showing that the plaintiff was hiding in the establishment engaging in extramarital affairs; that the publications were meant to show that the plaintiff has no regard to the institution of marriage as he is married but can afford to engage in extramarital affairs; that the plaintiff is a person of loose morals thus not competent to hold a public office; that the plaintiff has no respect for official working hours; that the plaintiff conducts himself in an unprofessional manner and abuses his authority by engaging in personal endeavour; that the plaintiff is otherwise of bad character and behavior and incapable of holding an official position like the one he holds as an MCA of Mtepeni Ward in Kilifi South; that he is immoral, does not respect women and engages in outrageous and unlawful actions.

7. Ms Kaguri cited the case of Megascope healthcare Kenya Limited v Nation Media Group Limited & 4 others [2021] eKLR and submitted that from an ordinary person’s perspective and understanding, the subject defamatory publications lowered the plaintiff’s character as he is clearly the subject in the said publications.

8. She stated that the second consideration is whether there are grounds for concluding the statements to be true. She contended that the defendant never confirmed with the plaintiff if the statements herein were true and that there was no evidence that the publication in issue comprises true statements, thus it could not be concluded that the statements were true. She indicated that the third consideration is whether there is a defence which might succeed. Ms Kaguri contended that the replying affidavit by the defendant contains mere denials with no evidential proof of the fact that the published statements were true.

9. On whether there is evidence of an intention to repeat or publish the defamatory statements, she asserted that the defendant made two defamatory statements against the plaintiff on July 12, 2021 and on January 24, 2022, which shows a clear repeat pattern of defamatory publications by the defendant against the plaintiff. Ms Kaguri cited the case of Megascope healthcare Kenya Limited v Nation Media Group Limited & 4 others (supra) and submitted that there is a high probability that the plaintiff stands to suffer irreparably if an injunction is not ordered hence the balance of convenience tilts in his favour.

Analysis And Determination. 10. I have considered the application filed herein, the affidavits filed in support thereof, the replying affidavit by the defendant and the written submissions by Counsel for the plaintiff. The issue that arises for determination is if an order for an injunction should be granted.

11. In the supporting affidavit filed by the plaintiff, he deposed that he is a group member of “New Home in Kilifi” vide mobile number xxxx. That on July 12, 2021 through the defendant’s WhatsApp pages being xxxx-Adams Jembe Mbangha and Victor Katana Muganga-xxxx, respectively, the defendant published false and misleading publication in the group WhatsApp pages known as “New Home in Kilifi”, “Mtepeni Ward” and “Shimo la Tewa” and disseminated defamatory statements about him.

12. He averred that the defendant posted a picture of the plaintiff’s motor vehicle registration No KCN 644U Toyota Premio near a white and black painted house with a wooden fence and thereunder published in the said group WhatsApp page known as “New Home in Kilifi” the words – “spotted somewhere at Mali Gardens Guest House room No 25 , its (sic) 4. 05pm and the owner of this vehicle an MCA from Kilifi County decided to take a break from his official duties to satisfy his unending sexual urge, the MCA with no ethics”.

13. The plaintiff further averred that the defendant caused another publication on January 24, 2022, through his WhatsApp page being xxxx. It was deposed that the defendant published false and misleading publications in the group WhatsApp page known as “Shimo la Tewa” and “Mtepeni all we want” as per the annexure marked as VGM-2 exhibited in the plaintiff’s supporting affidavit. The plaintiff contended that the contents of the said publication were understood to refer to the plaintiff.

14. It was averred by the plaintiff that he has been injured by the said malicious publications in his political career and his reputation has been brought into public scandal, odium and contempt. The plaintiff also stated that as a result of the said malicious publications, he has had marital issues with his wife, thus causing him great emotional distress. He averred that the defendant published the said words calculatingly, to increase the readership of the publications with a view to making mockery of the plaintiff and to ridicule him as a person of loose morals.

15. The defendant in his replying affidavit deposed that from a casual glance of the plaintiff’s annexed WhatsApp postages, there is no nexus between the source and/or generator of the printouts, the statements contained therein, the defendant, his number or name or any other link whatsoever. In addition, he stated that the printout of WhatsApp postages does not meet the threshold of admissibility of electronic and digital evidence hence such evidence lacks probative value to move the Court to issue a temporary injunction in a defamation case.

16. The defendant averred that while producing an electronic record to be admitted as evidence in these proceedings, the plaintiff has failed to adduce a certificate issued under the provisions of Section 106B of the Evidence Act, Cap 80 Laws of Kenya. The defendant urged this Court to find the printout of WhatsApp postages inadmissible as evidence in these proceedings.

17. It was stated by the defendant that his name and phone number do not appear anywhere in the said messages, and in fact, many of the messages appear as forwarded messages whose origin is neither disclosed nor authenticated. He contended that without admissible evidence to establish defamation, the plaintiff cannot demonstrate that he has a prima facie case against the defendant. The defendant also stated that the messages exhibited herein as evidence of defamation are not defamatory, but are expressed as counter opinions in a political and social debate, thus the plaintiff has not demonstrated how the said messages are defamatory of his character.

18. The defendant averred that the plaintiff’s suit is an attempt to gag the defendant’s freedom of expression and right to opinion, which are guaranteed under the Constitution, without adducing sufficient evidence to prove his claims. He further averred that the plaintiff could not suffer irreparable loss, and that he had failed to plead or demonstrate to the Court whether or not damages would compensate his loss, if any. The defendant asserted that if the Court is still in doubt, it should not grant the orders sought since the balance of convenience tilts in his favour.

19. The plaintiff filed an affidavit in response to the defendant’s replying affidavit where he deposed that the defendant had not refuted being the owner of mobile number xxxx. He further deposed that he had made a nexus between the defendant and the defamatory remarks as the names of the defendant appear in the printouts of the WhatsApp page. He averred that the suit and application herein are meant to safeguard his freedom of privacy, and if the orders sought are not granted, he shall suffer great loss as to his character and he risks failing to defend his seat as the MCA of Kilifi, Mtepeni Ward in Kilifi South.

20. An order for an interlocutory injunction is a discretionary remedy that is granted on the basis of evidence and sound legal principles. In an application for an interlocutory injunction the onus is on the applicant to satisfy the Court that it should grant an injunction. In the case of Giella vs Cassman Brown[1973] EA 358, the Court set out the conditions necessary for an order of injunction to be granted as hereunder-i.The plaintiff must establish that he has a prima facie case with high chances of success;ii.That the plaintiff would suffer irreparable loss that cannot be compensated by an award of damages; andiii.If the court is in doubt it will decide on a balance of convenience.

21. In a case where defamation is alleged, the need to be more cautious is high. This was the position taken by the Court in the case ofMicah Cheserem v Immediate Media Services & 4 others [2000] eKLR where it held that-“Applications for interlocutory injunction in defamation cases are treated differently from ordinary cases because they bring out a conflict between private and public interest. Though the conditions applicable in granting interlocutory injunctions set out in Giella vs Cassman Brown & Co Ltd [1973] EA 258 generally apply. In defamation cases those conditions operate in special circumstances. Over and above the test set out in Giella’s case, in defamation cases 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 and also that the words are so manifestly defamatory that any verdict to the contrary would be set aside as perverse. Normally the court would not grant an interlocutory injunction when the defendant pleads justification or fair comment because of the public interest that the truth should be out and the court aims to protect a humane, responsible, truthful and trustworthy defendant.”

22. The first test is whether the plaintiff herein has established a prima facie case with high chances of success. What constitutes a prima facie case was considered by the Court of Appeal in the case of Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] eKLR, where it was held as follows-“So what is aprima facie case" I would say that in civil cases it 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 as 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.”

23. The plaintiff averred that the defendant published false and misleading publications in the group WhatsApp pages known as “New Home in Kilifi”, “Mtepeni Ward” and “Shimo la Tewa” and disseminated defamatory statement about the plaintiff. He further averred that the defendant made two defamatory statements against the plaintiff on July 12, 2021 and on January 24, 2022, which shows a clear repeat pattern of defamatory publications by the defendant against the plaintiff. The defendant on the other hand deposed that there is no nexus between the source of the printouts, the statements contained therein, the defendant, his phone number or name or any other link whatsoever since his name and phone number do not appear anywhere in the said messages.

24. The defendant contended that the printout of WhatsApp postages does not meet the threshold of admissibility of electronic and digital evidence thus such evidence lacks probative value to move the Court to issue a temporary injunction in a defamation case. He stated that the plaintiff failed to adduce a certificate issued under the provisions of Section 106B of the Evidence Act, Cap 80 Laws of Kenya. The defendant therefore urged this Court to find the printout of WhatsApp postages inadmissible as evidence in these proceedings. The plaintiff in response averred that the defendant is merely using the excuse of admissibility of the evidence tendered to defeat justice as he intends to continue publishing defamatory remarks against him.

25. The plaintiff’s application is heavily anchored on the printout of WhatsApp postages annexed to his supporting affidavit as proof that indeed the defendant did publish defamatory statements against the plaintiff with a malicious intent. The defendant relied on Section 106B of the Evidence Act, Cap 80 Laws of Kenya and urged this Court to find the printout of WhatsApp postages inadmissible as evidence in these proceedings.

26. Section 78A as read with Section 106B deal with admissibility of electronic and digital evidence and admissibility of electronic records respectively. The said provisions state as follows-(1)In any legal proceedings, electronic messages and digital material shall be admissible as evidence.(2)The court shall not deny admissibility of evidence under subsection (1) only on the ground that it is not in its original form.(3)…………………………………………………………..…(4)Electronic and digital evidence generated by a person in the ordinary course of business, or a copy or printout of or an extract from the electronic and digital evidence certified to be correct by a person in the service of such person, is on its mere production in any civil, criminal, administrative or disciplinary proceedings under any law, the rules of a self-regulatory organization or any other law or the common law, admissible in evidence against any person and rebuttable proof of the facts contained in such record, copy, printout or extract. (emphasis added).

27. Section 106B of the Evidence Act addresses the issue of admissibility of electronic records in the following words-(1)Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on paper; stored, recorded or copied on optical or electro-magnetic media produced by a computer (hereinafter referred to as “computer output”) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein where direct evidence would be admissible.(2)……………………………………………………………………..(3)...........................................................................................................(4)In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following –a.identifying the electronic record containing the statement and describing the manner in which it was produced;b.giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;c.dealing with any matters to which conditions mentioned in subsection (2) relate; andd.purporting to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate), shall be evidence of any matter stated in the certificate and for the purpose of this subsection it shall be sufficient for a matter to be stated to be the best of the knowledge of the person stating it.(5)……………………………………………………………………”

27. Sections 78A and 106B of the Evidence Act are read conjunctively and should be complied with when electronic evidence is relied on. In the present case, the plaintiff seeks to rely on printout of WhatsApp postages which constitute digital evidence. In addition, in order for the WhatsApp postages to be printed out, it would involve taking screen shots of the said messages and then sending them to an email address. Thereafter, the screen shots would be downloaded onto the hard disk of a computer and/or phone and then printed using a printer connected to the computer. The said process makes the said printouts to constitute electronic records.

28. It is evident from the pleadings filed by the plaintiff in this case that the printout of WhatsApp postages herein is neither certified to be correct nor accompanied by a certificate as provided for by the law. In the case of County Assembly of Kisumu & 2 others v Kisumu County Assembly Service Board & 6 others [2015] eKLR, the Court when dealing with a similar issue held as follows-“Section 106B of the Evidence Act states that electronic evidence of a computer recording or output is admissible in evidence as an original document “if the conditions mentioned in this section are satisfied in relation to the information and computer.” In our view, this is a mandatory requirement which was enacted for good reason. The court should not admit into evidence or rely on manipulated (and we all know this is possible) electronic evidence or record hence the stringent conditions in sub-section 106B (2) of that Act to vouchsafe the authenticity and integrity of the electronic record sought to be produced…”

29. The plaintiff failed to comply with the provisions of Section 78A as read with Section 106B of the Evidence Act. Having failed to meet the basic requirements for documentary evidence in support of the application herein, the said documents are inadmissible for want of compliance. Under the provisions of Section 107 of the Evidence Act that he who alleges must prove but in the application herein, the documents exhibited do not conform to mandatory legal provisions.

30. In view of the fact that the plaintiff cannot rely on the printout of WhatsApp postages to support his application, it cannot be ascertained whether or not the defendant made malicious defamatory statements against the plaintiff. This Court finds that the plaintiff has not established that he has a prima facie case with high chances of success. In view of the aforementioned shortcoming, this Court cannot determine if due to the defendant’s actions, the plaintiff shall suffer irreparable loss that cannot be compensated by an award of damages.

31. The upshot is that the application dated February 3, 2022 is devoid of merit and the same is dismissed. Costs of the said application shall abide the outcome of the main suit.

It is so ordered.

DATED, SIGNED AND DELIVERED AT MOMBASA ON THIS 4TH DAY OF NOVEMBER, 2022. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.NJOKI MWANGIJUDGENo appearance for the plaintiffMr. Kariuki Henry for the defendantMr. Oliver Musundi – Court Assistant.