https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12450

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI COUNTY COURT NAME: MILIMANI HIGH COURT HIGH COURT CIVIL DIVISION CASE NUMBER: HCCC/E007/2026 HON. NABII DARAJA NABWERA.................PLAINTIFF/APPLICANT VS HON. AYUB ANGATIA SAVULA............DEFENDANT/RESPONDENT RULING 1. By Notice of Motion dated 14th January, 2026, which is expressed to be brought under Articles 28 and 33(3) of the Constitution, sections 1A, 1B, 3A and 63(c) and (e) of the Civil Procedure Act, Order 40 Rules 2, 3 and 4(1) and Order 51 Rule 1 of the Civil Procedure Rules, the Plaintiff/Applicant is seeking for the following orders: a. Spent. b. Spent c. That pending the hearing and determination of the Application and suit, the Defendant/Respondent, his agents, servants, proxies and persons acting under his instructions be barred from making any defamatory, derogatory and maligning statement, whether personal or political, aimed at tarnishing the Plaintiff/Applicant’s name. d. That pending the hearing and determination of the Application and suit, the Defendant/Respondent be ordered to compensate the Plaintiff/Applicant in the sum of Kshs.100,000,000/= for the alleged damage to his name and reputation. e. That the Court make such further orders as it considers fit and just. f. That costs be borne by the Defendant/Respondent. 2. The Application is based on the grounds on the face of it, the Supporting Affidavit of Hon. Nabii Daraja Nabwera sworn on 14th January, 2026 and the annextures thereto. 3. The Plaintiff is the Member of the National Assembly for Lugari Constituency. The Defendant is the Deputy Governor of Kakamega County and a former Member of Parliament for Lugari Constituency. The Plaintiff states that the parties are political rivals. 4. The Plaintiff’s complaint arises from remarks allegedly made by the Defendant on 25th November, 2025 at the burial of the late Simon Shange, the Principal of Munyuki Secondary School. The words particularly complained of are pleaded in Kiswahili as: ‘shule zetu zinaanguka sababu ya huyu mtu amekondakonda ako na ukimwi.’ In context, the Plaintiff states that the Defendant attributed poor performance in local schools to him, referred to his physical appearance and alleged that he had AIDS. 5. The Plaintiff deposes that the words were false, malicious and calculated to injure his personal, professional and political reputation. He further states that the publication attracted numerous reactions on social media and created hostility between the parties’ respective political supporters. 6. The Plaintiff exhibited a demand letter dated 14th January, 2026 requiring the Defendant to retract the remarks and issue an apology. He also exhibited screenshots of social media comments reacting to the publication. The Supporting Affidavit refers to an external internet link said to contain a recording of the speech. 7. The record contains several Affidavits of Service. In particular, the Affidavit sworn by Fredrick Bikeri states that on 20th February, 2026 the Notice of Motion, the Court’s directions and a Mention Notice were served upon the Defendant through his WhatsApp number. The Plaintiff’s written submissions dated 18th May, 2026 and subsequent Mention Notices were also served through the same number. 8. The Defendant neither entered appearance nor filed a response to the Application. The Application therefore proceeded as unopposed. The Court must nevertheless determine whether the facts proved and the law permit the orders sought. A party’s failure to respond does not convert an incompetent, unsupported or premature prayer into a lawful remedy. 9. The Plaintiff filed written submissions in support of the Application. He submits that the remarks were defamatory because they were calculated to expose him to ridicule, contempt and political disrepute. He relies on SMW v ZWM [2015] KECA 170 (KLR), Onama v Uganda Argus Limited [1969] EA 92, Wycliffe A. Swanya v Toyota East Africa Limited & another [2009] KECA 379 (KLR), Johnson Evan Gicheru v Andrew Morton & another [2005] KECA 83 (KLR), and John v MGN Limited [1997] QB 586. 10. The Plaintiff further submits that the Defendant’s failure to retract or apologize aggravates the injury and seeks Kshs.100,000,000/= as general and exemplary damages. On costs, he relies on Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others [2014] KESC 31 (KLR). **Analysis and Determination** 11. I have carefully read the Affidavit evidence, the written submissions and the authorities cited. At this interlocutory stage, the Court is not determining whether the Defendant is liable in defamation or the quantum of damages, if any. Those are matters reserved for trial. The issues that arise for determination are: i). Whether the Defendant’s failure to respond entitles the Plaintiff to the orders sought. ii). Whether the Plaintiff has met the threshold for a temporary prohibitory injunction in a defamation claim. iii). Whether a mandatory apology, retraction and payment of Kshs.100,000,000/= may issue at the interlocutory stage. iv). What orders should issue on costs and further conduct of the suit. 12. The first issue concerns the effect of the Defendant’s non-participation. The Affidavits of Service and the annexed electronic communication satisfy the Court that the Defendant was duly served with the Notice of Motion, the Court’s directions, the Plaintiff’s submissions and the subsequent Mention Notices. Despite that service, he failed to enter appearance, attend Court or file any response. The Application is therefore properly before Court as an unopposed Application. 13. The Defendant’s default does not dispense with proof. Under sections 107, 108 and 109 of the Evidence Act, the legal burden rests upon the party asserting a fact. **In Karugi & another v Kabiya & 3 others [1987] KLR 347**, the Court of Appeal held that the burden upon a plaintiff remains even where a claim is undefended. The Court must therefore examine whether the essential principles of defamation are disclosed by the uncontroverted material. 14**. In Wycliffe A. Swanya v Toyota East Africa Limited & another [2009] KECA 379 (KLR),** the Court of Appeal identified the central elements of defamation as publication of a statement concerning the plaintiff, defamatory meaning and malice. The statement must be communicated to at least one person other than the plaintiff and must tend to lower the plaintiff in the estimation of right-thinking members of society, expose him to hatred, contempt or ridicule, or cause him to be shunned or avoided. The case of **SMW v ZWM [2015] KECA 170 (KLR) and Musikari Kombo v Royal Media Services Limited [2018] KECA 801 (KLR)** confirms the elements. 15. On reference to the Plaintiff, the words pleaded did not mention him by name. However, the Plaintiff deposes that they were spoken by the Defendant at a burial within Lugari Constituency while referring to the area Member of Parliament. The exhibited reactions identify the Plaintiff and the Defendant by name and discuss the HIV-related remark in that political context. At the prima facie level, persons who heard or viewed the publication understood the words to refer to the Plaintiff. 16. On publication, the impugned words were allegedly spoken to mourners at a public burial. The social media responses exhibited by the Plaintiff demonstrate that the remarks subsequently reached and were discussed by third parties. This evidence is uncontroverted. The element of publication is therefore established on a prima facie basis. 17. On defamatory meaning, the words must be read as a whole and in their context. The alleged statement did not merely ascribe a medical condition to the Plaintiff. It referred to him as emaciated, alleged that he had AIDS and linked him to the failure of schools within his Constituency. Spoken by a senior political office holder concerning another elected leader, the words were capable of exposing the Plaintiff to ridicule and undermining confidence in his fitness and performance as a public representative. 18. Nothing in this Ruling should be read as suggesting that living with HIV or AIDS is, of itself, discreditable. Such a conclusion would offend the constitutional values of equality, dignity and non-discrimination. The prima facie defamatory sting arises from the full imputation, the use of alleged illness as political ridicule, and the asserted connection between the Plaintiff’s physical condition and institutional failure. 19. On falsity and malice, the Plaintiff swore that the allegation was false and politically motivated. He exhibited a demand requiring a retraction and apology. The Defendant, though duly served with the demand and these proceedings, offered no justification, fair comment, privilege or other explanation. At this stage, malice may prima facie be inferred from the alleged reckless publication of private medical information without demonstrated factual foundation, the political context and the failure to retract or offer an explanation after demand. 20. The Court accordingly finds that the Plaintiff has established, on an uncontroverted prima facie basis, the core elements of a defamation claim: the words referred to him, were published to third parties, were capable of a defamatory meaning and were arguably actuated by malice. This is not a final finding of liability. The standard at this stage is whether an apparently infringed right calls for an answer, not whether the suit has been proved on a balance of probabilities after trial. 21. The principles governing interlocutory injunctions were restated by the **Court of Appeal in Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] KECA 606 (KLR)**. An applicant must sequentially establish a prima facie case with a probability of success, irreparable injury which cannot adequately be compensated by damages and, where the Court is in doubt, that the balance of convenience favours the order. In **Mrao Limited v First American Bank of Kenya Limited & 2 others [2003] KECA 125 (KLR**), a prima facie case was described as one showing an apparently infringed right calling for an explanation or rebuttal. 22. In defamation matters, the jurisdiction is exercised with greater caution because an interim restraint engages freedom of expression under Article 33 of the Constitution. Article 33(3) nevertheless requires every person, in exercising that freedom, to respect the rights and reputation of others. The Court of Appeal in Nation **Media Group & 2 others v John Harun Mwau [2014] KECA 308 (KLR)** recognized the heightened caution applicable to injunctive relief in defamation proceedings. 23. The broad restraint sought by the Plaintiff would prohibit any future ‘defamatory, derogatory and maligning’ personal or political statement. In that form it is uncertain and would require the Defendant to guess, on pain of contempt, whether ordinary political criticism is prohibited. A Court order must be clear, precise and capable of obedience. The Court cannot grant a roving restraint over undefined future speech. 24. The Court is, however, empowered to grant a narrower order falling within the wider prayer where that is necessary to preserve the subject matter and does not determine the suit. The Defendant was served with a demand to retract and desist but gave no response, entered no appearance and offered no undertaking against republication. The parties remain political rivals and the pleadings place the publication in the context of an approaching election. In those circumstances, the risk of repetition cannot be dismissed as fanciful. 25. Repetition of a specific allegation concerning a person’s HIV or AIDS status, where no factual or lawful justification has been placed before Court, implicates dignity, privacy and reputation in a manner which may not be fully repaired by a later monetary award. The balance of convenience favours preserving the parties’ positions without preventing legitimate political debate or criticism. 26. The Plaintiff has therefore met the threshold for a limited prohibitory injunction restraining repetition or republication of the specific allegation that he has HIV or AIDS, and of the substantially similar allegation linking that alleged medical status or physical appearance to the failure of schools, pending determination of the suit. The injunction will not restrain lawful comment on the Plaintiff’s public record, political conduct or performance. 27. The next issue concerns the prayer compelling an apology and retraction. This is a mandatory injunction. **In Kenya Breweries Limited & another v Washington O. Okeyo [2002] KECA 284 (KLR),** the Court of Appeal held that a mandatory injunction at the interlocutory stage should not normally issue in the absence of special circumstances and then only in a clear case where the Court has a high degree of assurance that the order will be shown at trial to have been rightly granted. 28. The same Court in **Nation Media Group & 2 others v John Harun Mwau [2014]** affirmed that a higher standard is required before an interlocutory mandatory injunction may issue. An unequivocal apology would pronounce the publication false and defamatory, impose liability and compel speech before formal proof and trial. The apology prayer is also expressed to operate pending determination of the Application and is spent upon delivery of this Ruling. 29. The prayer for Kshs.100,000,000/= is equally unavailable at the interlocutory stage. Damages for defamation are a final remedy. Their assessment depends upon proof of liability, reach, injury, malice, mitigation and apology. The authorities on quantum, including **Johnson Evan Gicheru v Andrew Morton & another [2005] KECA 83 (KLR)**, guide assessment after liability has been proved. Order 40 does not authorize an interim award which would substantially dispose of the suit. 30. The Court observes that the external transfer link referred to in the Supporting Affidavit is not a secure substitute for formally produced electronic evidence. At trial, the Plaintiff must place the audio or video before Court in an accessible and durable form, establish its source and integrity and comply with sections 78A and 106B of the Evidence Act. The prima facie finding made herein rests on the sworn affidavit, identified words, occasion of publication and exhibited third-party reactions; it does not dispense with formal proof at trial. 31. On costs, section 27 of the Civil Procedure Act gives the Court discretion, although costs ordinarily follow the event. The Plaintiff has succeeded only in obtaining a narrow preservatory order, while the final remedies sought remain for trial. 32. The pendency of a defamation claim between holders of public office, involving allegations touching on health, dignity and political reputation, should not be prolonged. The overriding objective under sections 1A and 1B of the Civil Procedure Act requires the Court and parties to facilitate the just and expeditious disposal of the suit. 33. The upshot is that the Notice of Motion dated 14th January, 2026 partly succeeds. The Court makes the following orders: a. Pending the hearing and determination of the suit, the Defendant/Respondent, whether by himself, his servants, agents, proxies or any person acting on his instructions, is restrained from repeating or republishing the allegation that the Plaintiff/Applicant has HIV or AIDS, or any substantially similar allegation linking the Plaintiff’s alleged HIV or AIDS status or physical appearance to the failure of schools. b. Costs of the Application shall abide the outcome of the suit. **DATED, SIGNED AND DELIVERED AT NAIROBI THIS 30th DAY OF JULY, 2026, VIRTUALLY, THROUGH THE MICROSOFT TEAMS PLATFORM.** **KENNEDY KANDET** **JUDGE** **IN THE ABSENCE OF PARTIES** **COURT ASSISTANT: AGGREY.**