https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12161

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAKURU** **CIVIL SUIT NUMBER E006 OF 2026** **FAEZZ NASHER -----------------------------------------------------PLAINTIFF** **VERSUS** **ABDULAHI ADAN MOHAMMED -------------------------- DEFENDANT RULING** 1. By Notice of Motion dated 17/2/2026 filed simultaneously with this suit, the Plaintiff prays for reliefs as hereunder; 1. **Spent** 2. **Spent** 3. **Spent** 4. **THAT Pending the hearing and determination of the main suit, a temporary prohibitory injunction be issued restraining the Defendant/Respondent, whether by himself or through others, from further publishing the defamatory statements complained of in the Plaint or any words substantially similar thereto of and concerning the Plaintiff.** 5. **THAT pending the hearing and determination of the main suit, a Mandatory Injunction be issued compelling the Defendant/Respondent to keep the defamatory publication permanently removed and inaccessible.** 6. **The cost of this Application be in the Cause.** 7. The Application is propped up by affidavit evidence of the Plaintiff (“the Applicant’’). *Inter alia* he states that he is a long standing businessman, devout Muslim and community leader in Nakuru County. On 28/1/2026 the Defendant (“the Respondent’’) allegedly authored and published a Facebook post regarding governance of Nakuru Muslim Association (NMA) and Waqf Properties, naming the Applicant as Chairman of the Association. The Applicant laments that the publication falsely claimed that he was a self-declared and illegal chairman who is corrupt and had rigged elections among other accusations. The Court is told that contrary to the Respondent's claims, the Association's elections were authorized by the High Court through orders issued in **Nakuru Civil Case No. E021 of 2021** and were conducted under the supervision of the Deputy Registrar of the court. A challenge mounted against the elections *vide* **Nakuru Chief Magistrate's Civil Case No. E456 of 2023** is said to have been struck out and no appeal was lodged. The Applicant further avers that the Respondent attended and observed the elections, as evidenced by a video footage and photographs exhibited. 8. The Applicant therefore accuses the Respondent of dishonesty in making the publication which allegedly remains accessible online and continues to attract readership and hostile commentary, thereby adversely affecting his reputation. 9. The Respondent opposes the Application through his affidavit in reply purportedly sworn on 2/3/2026. While denying defaming the Applicant, he contends that as a member of the NMA he has the right to express his views concerning the leadership of the Association he says is wanting. The Respondent thinks that the Facebook post complained of is his call for accountability required by the Constitution of leaders. According to the Respondent, the final mandatory injunction the Applicant craves would have the effect of limiting his constitutional right to freedom of expression and association, and urges the court not to grant it at the interlocutory stage. 10. The Respondent further *inter alia* avers that his views on the leadership of the NMA conveyed in the Facebook post in issue are shared by other members of the Association as demonstrated by their comments thereon. The Court is further told that the same concerns had been expressed in the said **Nakuru Chief Magistrate's Civil Case No. E456 of 2023** which has not been conclusively determined on its merits. **The Applicant's Submissions** 1. Citing the famous decisions in **Giella vs Cassman & Company and Mrao vs First American Bank,** learned Counsel for the Applicant submit that their client has satisfied the *prima facie* test for grant of temporary and mandatory injunction reliefs sought.Further relying on the case of **Cheserem vs Immediate Media Services (2000) eKLR,** the Applicant’s Advocates submit that the Court of Appeal has affirmed the position that interlocutory injunction in defamation cases may issue where words complained of are manifestly defamatory and their falsity are readily demonstrable. Claims of the Applicant rigging elections; being a self-declared chairman and about his financial misconduct over *Waqf* property establish a *prima facie* case as they are made as statements of fact, not opinion, and so their falsity is readily demonstrable. Counsel observes that defamation is uniquely destructive and once a defamatory statement is disseminated, irreversible harm would result before final judgment is rendered. 2. Insinuation of contempt of court orders is a grave allegation, according to the Applicant. The court is referred to the case of **Phineas Nyagah vs Githobu Imanyara (2012) eKLR,** in which it was stated constitutional protection of free speech does not extend to defamatory statements which unjustifiably injure the reputation of a person. The Applicant further laments that verification of the matters complained of was not sought before publication of the alleged offending post. 3. It is further submitted that irreparable harm will result to the Applicant owing to continuous circulation of the post and so *status quo* ought to be preserved by restraint of further publication until determination of the suit. 4. The Applicant thinks that the balance of convenience tilts in his favour in the circumstances. According to him, if injunction is denied the Applicant's reputation will suffer while the Respondent will lose nothing by being restrained. **The Respondent's Submissions** 1. The Respondent first wants the court to order transfer of suit to the lower court. He pitches tent on **Section 11 of the Civil Procedure Act** which provides that every suit ought to be instituted in **"the court of the lowest grade competent to try it".** The Respondent also relies on **Interactive Gaming & Lotteries Limited vs Safaricom Limited (2021) KEHC 335 (KLR) and** **Zakaria Mutuku Kiviu (Suing as father and administrator of the Estate of Michael Mutua Mutuku Deceased) vs Mopak Company Limited (2021) KEHC 5797 (KLR)** *inter alia*where it was observed that **Section 11 of the Civil Procedure Act** *supra* does not take away the High Court’s power to try a case within its jurisdiction. Rather, the statutory provision is intended to ensure optimal utilization of scarce court resources by ensuring that suits are filed in the court with appropriate jurisdiction and gives a dissatisfied party a chance to appeal to the High Court, add the Respondent’s Counsel. 2. Reference is made to **Section 18 of the Civil Procedure Act** which allows for transfer of suits to subordinate courts. The court is told that on the face of the suit, the various damages claimed do not exceed the lower court's maximum pecuniary jurisdiction of Kshs. 20,000,000/= as the Applicant in fact intends to claim a total amount of Kshs. 17,000,000/= in damages. 3. On the merits of the Application, the Respondent submits that a mandatory injunction may only issue in special circumstances, (see case law in **Kenya Breweries Limited vs Washington Okenyo (2002) EA 109 & Maher Unissa Karim vs Edward Oluoch Odumbe (2015) eKLR** cited by Counsel**).** In the opinion of the Respondent’s Advocates, the test is different from that enunciated in the **Giella vs Cassman Brown & company** *supra* governing consideration of an application for prohibitory injunction. The Court of Appeal in the **Kenya Breweries Case** *supra* held as follows while quoting **Vol. 28 Halsbury's Laws of England (4th Edition) at paragraph 948;** **“A mandatory injunction can be granted on an interlocutory application as well as at the hearing but in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the court thinks ought to be decided at once or if the act done is a simple and summary one which can easily be remedied, or if the Defendant attempts to steal a match on the Plaintiff, a Mandatory Injunction will be granted on an interlocutory application.”** 1. The Respondent thinks that this Application does not disclose the envisaged special circumstances for grant of mandatory Injunction. According to him, a finding that the impugned Facebook post is defamatory would be premature as the suit is yet to be heard. In **Bandari Investments Company limited vs martin Chiponda & 139 Others 2022(eKLR)** also relied upon by theRespondent, it was noted that a mandatory injunction only issues in exceptional, clearest and special cases only. It is issued sparingly and/or with caution as the net effect is that the party to which it is directed is required to do or undo something and many side effects may follow such an act. 2. The **Cheserem Case** *supra* is also relied upon by the Respondent. It is submitted that temporary injunction in defamation cases is only granted where the court is satisfied that the words complained of are so “manifestly defamatory, and that a verdict to the contrary would be set aside as perverse.” The court added that courts normally don’t grant temporary injunction where the defence of justification or fair comment because of the public interest, is pleaded. 3. In **London Distillers (k) Limited vs Edermann Property Limited & Another (2018) KEHC 4189 (KLR)** furtherrelied upon by the Respondent, it was observed that even where a defence has not been filed in a defamation suit, a replying affidavit may be a guide as to the Respondent’s intended defence. According to the Respondent, he intends to raise a defence of justification or fair comment. Once such defence is raised, a temporary injunction cannot issue as that would fetter freedom of speech as held **Cytonn Investments Management PLC VS Kaikai & Another (2022) KEHC 14246 (KLR)**referred to. **The Applicant’s Supplementary Submissions** 1. In rejoinder, the Applicant contends that **Sections 11 and 18 of the Civil Procedure Act** are prematurely invoked to seek transfer of the suit to the lower court. It is argued that the pleadings are not closed and, moreover, there is no legal or factual basis upon which the court should decline jurisdiction. It is also pointed out that the Defendant has not filed a defence or a formal Motion supported by affidavit urging this point so that the Plaintiff is able to respond as appropriate. Reference is made to the case of **Githaiga vs Mwangi (Civil Appeal E064 of 2022 (2024) KEHC** where it was observed that submissions cannot take the place of evidence. In the opinion of Counsel, this statutory provision only offers administrative guidelines on approaching the court. **Analysis and Determination** 1. Determination of injunction applications including mandatory, prohibitory and permanent injunctions were long settled in the often quoted case of **Giella vs Cassman Brown & Company** *supra*cited in Counsel submissions**.** The principles are; **“Firstly, an applicant must show a *prima facie* case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the Court is in doubt, it will decide an application on the balance of convenience."** 1. Case law in **Mrao vs First American Bank of Kenya Limited & 2 Others (2003) eKLR** explains a *prima facie* case in civil cases as; **“A case which on the material presented, the court or tribunal properly directing itself will conclude that there exists a right which had apparently been infringed by the opposite party as to call for explanation or rebuttal from the latter.”** 1. The three limbs above are required to be surmounted sequentially (see **Nguruman Limited vs Jan Bonde Nielsen & 2 Others [2014] eKLR).** This means that the Applicant has to satisfy each of the three elements to obtain injunction orders. 2. In **Showind Industries vs Guardian Bank Limited & Another [2002] 1 EA** it was exhorted that temporary injunction pending trial is granted very sparingly, and only in exceptional circumstances such as where the Applicant’s case is very strong and straight forward. As an equitable remedy, injunction may be denied where there is misconduct by the Applicant or his equity has been defeated by *laches*. 3. As correctly submitted by Counsel for the parties herein, temporary and mandatory injunctions in defamation cases are granted very sparingly, as the court is yet to hear evidence on the substantive dispute. 4. That a legal challenge to the NMA elections in issue failed after **Nakuru CMCC No. E456 of 2023** through which the challenge was mounted was struck out, has not been rebutted. No appeal on the decision is shown to have been lodged. The Respondent is said to have participated in the elections. These circumstances demonstrate a *prima facie* chance that the Applicant could succeed in the suit. 5. Irreparable loss could result to the Appellant if there is continued publication of the alleged defamatory material. 6. In light of the court’s opinion on the first two limbs of **Giella vs Cassman Brown & Company**, it is unnecessary to consider the third limb of the judicial authority*to wit;* in whose favour the balance of convenience tilts to. 7. The Application for temporary injunction is accordingly allowed in terms that the Respondent and/or his agents whosoever are restrained from further publishing the material the Applicant complains of in this case pending hearing and determination of the suit. 8. The court declines to grant the mandatory injunction craved, no conclusion having been reached that the material complained of is defamatory of the Applicant. This issue ought to await examination of evidence at trial. 9. On transfer of the suit to the lower court, the Plaintiff is claiming an estimated sum Kshs. 17,000,000/= in compensation based on the Plaint. The amount is within the pecuniary jurisdiction of the Chief Magistrate’s Court which has a maximum monetary limit of Kshs. 20,000,000/=. Whereas this court obviously also has jurisdiction to entertain the suitpursuant to **Article 165 (3) (a)** of the Constitution that vests the court with unlimited jurisdiction in civil and criminal matters, for administrative purposes and for optimal utilization of scarce judicial resources I agree with the Respondent that the claim be determined in the first instance before the Chief Magistrate’s Court. This measure also ensures that none of the parties is deprived of their right of appeal to this court in the event of dissatisfaction with the lower court’s decision. The court could also order transfer of a suit *suo motu*, even if defence has not been. 10. This suit is therefore ordered transferred to the Chief Magistrate’s Court at Nakuru for hearing and disposal. 11. The costs of the Application shall be in the Cause. **J. M. NANG’EA, JUDGE.** **Ruling, dated, signed and delivered virtually this 29th day of July, 2026.** **In the presence of:** Mr. Abuya Advocate for the Plaintiff/Applicant. Mr. Nyerere Advocate for the Defendant/Respondent. Court Assistant (Jeniffer). **J. M. NANG’EA, JUDGE.**