https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7449

Ntimama & another v Maasai Mara University & another (Civil Case E207 of 2025) [2026] KEHC 7449 (KLR) (Civ) (27 May 2026) (Ruling) Neutral citation: [2026] KEHC 7449 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Case E207 of 2025 SN Mutuku, J May 27, 2026 Between Lydia Ntimama 1st Plaintiff Amos Ntimama 2nd Plaintiff and Maasai Mara University Interested Party and Patu Santoo Ole Naikumi Defendant Ruling The Application 1.Lydia Ntimama and Amos Ntimama (hereafter the 1st and 2nd Applicants) instituted the present suit against Patu Santoo Ole Naikumi (hereafter the Respondent) through a Plaint dated 6th August 2025. They have described themselves as the children of and the administrators of the estate of the late Hon. William Ronkorua Ole Ntimama (the deceased). Alongside the Plaint, the applicants have filed the Notice of Motion (the Application) of even date which is the subject of this ruling. The Application is brought under Section 3A of the Civil Procedure Act (CPA) and Article 40 of the Constitution of Kenya, 2010 and seeks the following orders:i.Spent.ii.Spent.iii.That a temporary order of injunction be and is hereby issued restraining the Respondent, individually or collectively, whether by themselves or by their servants, agents, employees or otherwise howsoever from using manuscript, confidential and proprietary information obtained from the Applicants and Ole Ntimama’s family to author any book, writing or article about Ole Ntimama’s Biography pending the hearing and determination of the suit herein.iv.That a temporary order of injunction be and is hereby issued restraining the Respondent, individually or collectively, whether by themselves or by their servants, agents, employees or otherwise howsoever interfering with the Applicants’ process of finalising Ole Ntimama’s Biography pending the hearing and determination of the suit herein.v.That that an order be and is issued compelling the Respondent to produce current and true accounts of revenue the Respondent has received from the India Book Publishing Deal that the Respondent sought without the knowledge, information or consent of the co-author, the 1st Applicant.vi.That the cost of this application be provided. 2.In support of the Applicant, the Applicants have advanced grounds on the face of the Application and in the Supporting Affidavit jointly sworn by the Applicants on 6th August 2025. 3.The Applicants have stated that about 10 years preceding his death, the deceased commissioned Maasai Mara University (hereafter the Interested Party) to undertake the writing of his autobiography. That following the deceased’s death in 2016, the Applicants undertook to finalize the said project. They obtained an unfinished manuscript from the Interested Party with a view to finalizing the work in order to preserve the deceased’s legacy and vision. 4.They have stated that they consequently engaged the assistance of the Respondent on a voluntary and non-compensation basis. That, on that basis, the Applicants shared the unfinished manuscript and other relevant material relating to the deceased’s personal life, with the Respondent and granted him access to the deceased’s archive with the aim of retrieving relevant information pertaining to the deceased. That the Respondent failed to deliver on the autobiography chapters he was tasked with. 5.The Applicants have stated that the Respondent demanded financial upkeep for assignment’s related expenses like internet and printing, which the Applicants provided at a weekly cost of approximately between Kshs. 5,000 and Kshs. 7,000/-. That this payment notwithstanding, the Respondent declined to hand over the relevant chapter of the manuscript and instead demanded Kshs. 1,000,000/- and royalties of 20% arising from the proceeds of the book sales from the Applicants, which the Applicants declined to pay in the absence of any prior agreement to that effect. 6.The Applicants have stated, further, that the Respondent nevertheless proceeded to unilaterally publish and post the cover page of a book titled: “A Biography of William Ronkorual Ole Ntimama: A Maa Polymath, Titan &Maverick An icon of resilience, architect of Maa renaissance” in the Maa Unity Agenda (MUA) WhatsApp group priced at Kshs. 3,000/-. That following the said posting by the Respondent, who are also members of the said WhatsApp group, released a press statement clarifying that the Respondent had no authority to co-author or publish the said book. 7.It is the Applicants’ averments that the Respondent subsequently released an article on 3/05/2025 featured in the Standard Newspaper, where the Respondent indicated that he had completed the biography and had forwarded a manuscript thereof to an Indian publishing firm and that this was done without the consent of the Applicants. 8.The Applicants term the actions by the Respondent as unconstitutional, illegal and a gross violation of data protection, intellectual property and succession laws and urged that unless the injunctive orders sought are granted, the Applicants stand to suffer irreparable damage as they will lose out on the opportunity to author the deceased’s biography in a manner that preserves his legacy and vision and that the balance of convenience tilts in their favour in the circumstances. Replying Affidavit 9.The Respondent has opposed the Application through a Replying Affidavit sworn 27/10/2025. It is his averment, inter alia, that while the family of the deceased had initially engaged various persons to assist in completing the manuscript of the autobiography initiated by the deceased, the said project was abandoned sometime in the year 2016, due to alleged non-payment and lack of support from the deceased’s family. 10.The Respondent has averred that the 1st Applicant reached out to him in March, 2024 with a proposal that he authors the deceased’s autobiography. That he requested a standard agreement, to no avail, though the 1st Applicant stated that she would consult other family members and revert. That the 1st Applicant engaged his services with the understanding that she would provide the requisite funds for research and internet. That she further provided him with some documentation relating to the deceased’s life which he found unreliable. That in the circumstances, he indicated to the 1st Applicant that he would undertake independent research in authoring the said autobiography and that the documentation provided by the 1st Applicant did not feature in the book so far prepared by the Respondent. 11.The Respondent has stated that he is yet to complete the book though he has so far prepared a draft of 400 pages, excluding the material provided by the Applicants; that he has committed no wrong against the Applicants and that the present suit is purely aimed at avoiding payment for the services he has rendered to the Applicants. He denied the statement that he has attempted to taint the legacy of the deceased or that he demanded a sum of Kshs. 1,000,000/- from the Applicants and stated that, according to him, the Applicants owe him a sum of Kshs. 2,180,000/- for services rendered. 12.The Respondent has accused the Applicants of approaching this court with unclean hands for the reason of which they are not entitled to the prayers sought in the Application and that the Application ought to be dismissed. Grounds of Opposition 13.In addition to his Replying Affidavit, the Respondent also filed Grounds of Opposition dated 29/10/2025 as follows:a.The threshold for the grant of the orders has not been met.b.The Plaintiffs have not made full and candid disclosure to the court.c.The Applicant have come to court with unclean hands.d.The application is not genuine as the Applicants have filed the same with the intention of frustrating the defendant’s authorship and work.e.The Applicants have not made any undertaking as to damages.f.The Application is an abuse of the court’s process, is frivolous and vexatious and should be dismissed with costs.g.The Application is fatally defective and bad in law. Submissions 14.The Application was canvassed through written submissions. In support of the Application, the Applicants have anchored their submissions on Giella v Cassman Brown & Co Ltd [1973] EA 358 where the principles for consideration in granting temporary injunctions were laid down. On the whether they have established a prima facie case, the Applicants have relied on Mrao Ltd v First American Bank of Kenya and 2 others [2003] eKLR where the court defined what constitutes a prima facie case. 15.The Applicants have submitted that they have established a prima facie case by showing that they are the legal administrators of the estate of the deceased, and that they are the rightful owners of all copyrights of works relating to the deceased’s biography. That on the contrary, the Respondent took advantage of the opportunity to collaborate with the deceased’s family in order to hijack and independently publish the deceased’s autobiography without either the consent or authority of the Applicants. 16.In respect to irreparable harm/injury, the Applicants have drawn this court’s attention to Nonny Gathoni Njenga & another v Catherine Masitsa & 2 others [2015] KEHC 5655 (KLR) where the High Court defined irreparable harm as harm or injury that cannot be adequately compensated by an award of damages. They submitted that the right to publish the deceased’s autobiography is one that lies primarily with his family and hence the Respondent being a third party, cannot be heard to attempt to independently author the said autobiography especially using material provided to him by the Applicants and without their consent or authorization, for to do so would be tantamount to violating the deceased’s proprietary rights and violating the laws on copyright, intellectual property and succession and that unless the injunctive orders sought are granted, the Applicants and the larger family of the deceased stand to suffer a disentitlement in co-authoring the deceased’s autobiography in a manner that preserves his legacy, memory and vision. 17.In regard to the principle on balance of convenience, it is the Applicants submission that the balance of convenience tilts in their favour since they have demonstrated that the Respondent’s actions constitute an infringement of their copyrights. 18.Concerning the prayer sought seeking a delivery of all accounts and statements of revenue collected, the Applicants have contended that Section 35(4)(a) of the Copyright Act, Cap. 130 Laws of Kenya, empowers the court to grant reliefs by way of damages or delivery of an account. The Applicants have relied on Radio Africa Ltd v Standard Group PLC & another [2024] KEHC 11429 (KLR) where the court, upon arriving at a finding that there was an infringement of the plaintiff’s copyright therein, ordered inter alia that an enquiry and account of profits be made and that all sums found to be due to the plaintiff be paid accordingly. 19.In his submissions, the Respondent cited Giella v Cassman Brown & Co Ltd [1973] EA 358 on the applicable principles in granting interlocutory injunctions were pronounced and Mrao Ltd v First American Bank of Kenya and 2 others [2003] eKLR on what constitutes a prima facie case and submitted that the Applicants have not established a prima facie case, since he has demonstrated that the Applicants engaged his services but later failed to provide him with the necessary finances and further failed to respond to his various correspondences, thereby forcing him to proceed independently and ultimately published the book as an unauthorized biography in order to realize the fruits of his labour. 20.It is also the Respondent’s argument that the Applicants have not shown the manner in which they stand to suffer irreparable harm or that any harm suffered cannot be adequately compensated by way of damages if at all he proceeds with the publication. He relied on Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] KEELC 2424 (KLR) in which the court reasoned that:“Irreparable injury means that the injury must be one that cannot be adequately compensated for in damages and that the existence of a prima facie case is not itself sufficient. The applicant should further show that irreparable injury will occur to him if the injunction is not granted and there is no other remedy open to him by which he will protect himself from the consequences of the apprehended injury.” 21.It is equally the Respondent’s submission that the balance of convenience tilts in his favour since he has shown that he ought to be entitled to the fruits of his labour, by way of the intended publication. 22.The Respondent submitted that the parties herein having entered into a contractual agreement in respect of the said publication and are therefore bound by the terms arising therefrom, this court cannot interfere with the said contract. He cited, inter alia, the case of Ochiel v Okoth [2026] KEHC 106 (KLR) and National Bank v Pipe Plastic Samkolit (K) Limited [2001] eKLR where it was reaffirmed that courts are not in the business of rewriting the terms of contracts entered into between parties. Analysis and Determination 23.I have considered the Application and the grounds in support. I have considered the Replying Affidavit and the Grounds of Opposition, parties’ submissions and authorities relied on. 24.Although Order 40(1) of the Civil Procedure Rules (CPR) is not one of the provisions cited by the Applicants in this application, it is under this Order that temporary injunctions are sought. The purpose of granting temporary injunctions is to preserve the subject matter so that it is not destroyed or interfered with as the parties are litigating the matter in court. 25.Order 40(1) CPR provides instances when temporary injunctions can be issued. It provides as follows:Where in any suit it is proved by affidavit or otherwise—(a)that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or(b)that the defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit, the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders. 26.The general principles governing the grant of an interlocutory injunction are laid out in Giella v Cassman Brown & Co Ltd [1973] EA 358 cited in the respective parties’ submissions and echoed in the case of Micah Cheserem v Immediate Media Services & 4 others [2000] eKLR cited in the respective parties’ submissions, as follows:a.The applicant must establish a prima facie case with a probability of success.b.The applicant must show that he or she stands to suffer irreparable loss that cannot be adequately compensated by way of damages.c.Where the court is in doubt, then the balance of convenience should tilt in favour of the applicant. 27.The Court of Appeal in Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] eKLR restated the principles governing the grant of interlocutory injunctions 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. However, it was cautioned that a court ought to exercise care not to determine with finality any issues arising. The Court expressed itself in the following manner:“...Since the fundamentals about the implications of the interlocutory orders of injunctions are settled, at least over four decades since Giella’s case, they could neither be questioned nor be elaborated in detailed research…………………..In an interlocutory injunction application, the applicant has to satisfy the triple requirements to:a)establish his case only at a prima facie level.b)demonstrate irreparable injury if a temporary injunction is not granted.c)allay any doubts as to (b) by showing that the balance of convenience is in his favor.” 28.In addition, the Court stated that the three conditions apply separately as distinct and logical hurdles to be tackled sequentially by the applicant. That is to say that an applicant who establishes a prima facie case must further establish irreparable injury, being injury, for which damages recoverable could not be an adequate remedy. And that 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. 29.Regarding what constitutes a prima facie case, the Court of Appeal in Mrao Ltd v First American Bank of Kenya and 2 others [2003] eKLR defined a ‘prima facie’ case as follows:“A prima facie case in a civil application includes but is not confined to a “genuine and arguable case.” It is a case 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.” 30.The Court further opined that the standard for proving a prima facie case is higher than that associated with an arguable case and that an applicant must show an infringement of a right and the probability of success of his or her case upon trial. 31.On the one part, the Applicants have stated and submitted that they have established a prima facie case worthy of the interlocutory injunctive orders sought, since they have shown that they are the rightful authors and owners of the copyright of works and material relating to the deceased’s autobiography. 32.On the other part, the Respondent has in sum stated that no prima facie case has been established, since the research and drafting of the said autobiography was undertaken with the initial approval of the Applicants. 33.To my mind, it is evident that the purported authorship and/or publication of the deceased’s autobiography by the Respondent forms the crux of the dispute herein, with the Applicants taking the position that the same was undertaken without their consent, authority or participation yet they possess the relevant copyright as pertains to the deceased’s autobiography. 34.From my consideration of the Respondent’s averments and submissions, it is apparent that he has admitted to undertaking the drafting and/or publication but maintains that the same was independently done due to the Applicants’ non-cooperation and refusal to honour the terms of their initial arrangement. 35.To my understanding, the question regarding whether the Respondent authored the manuscript without authority or consent of the Applicants forms the gist of the main suit, as well as this application. It is too early in these proceedings to consider the gist of the pleadings at this stage, especially after considering that this court has not had the benefit of full evidence that has been adduced and tested under cross-examination in a full trial. 36.From the grounds adduced in support of the application and the arguments of the applicants, I am satisfied that the Applicants have established that they have a prima facie case within the meaning given in Mrao Ltd v First American Bank of Kenya and 2 others. In respect to whether the Applicants have proved that they will suffer irreparable loss or damage that cannot be compensated by an award of damages, I have considered the Applicants’ averment and submissions that unless the temporary injunctive orders sought are granted, they will be deprived of an opportunity to author the deceased’s autobiography in a manner that preserves his memory and vision for the said autobiography during his lifetime. The Respondent has taken the position that no irreparable harm has been demonstrated. 37.I have considered the rival positions taken above. The applicants are both the children and administrators of the estate of the deceased. They have expressed their desire to fulfil the deceased’s vision and depiction of his legacy through the authorship of his autobiography. I have also considered that the Respondent has admitted to proceeding with authoring the deceased’s autobiography for purposes of recovering his expenses given the allegations by the Respondent that the 1st Applicant failed to provide financial support to enable him continue with the services agreed upon by the parties. 38.Taking into account the Applicants’ status within the context of these proceedings, the autobiographical nature of the publication in question and the disputes arising from the ownership and contents of the purported publication as well as its possible implications on copyright and intellectual property rights, among others, I am satisfied, at this stage of these proceedings, that the Applicants have demonstrated they stand to suffer irreparable harm that cannot be adequately compensated by an award of damages. Consequently, I am persuaded that the balance of convenience tilts in favour of the Applicants. I am persuaded to grant the interlocutory injunctive orders sought under prayers (iii) and prayer (iv) of the application. 39.I have considered prayer (v). I have perused the pleadings and material on record and noted that a similar prayer constitutes part of the final reliefs sought in the Plaint and therefore it is prudent to allow the full trial to take place to enable the court to determine what reliefs are available to the applicants should they prove their case. Consequently, I decline to grant prayer (v) of the Application. 40.In conclusion, the Notice of Motion dated 6/08/2025 succeeds only in terms of prayers (iii) and (iv), giving rise to the following orders:a.An interlocutory injunction be and is hereby issued restraining the Defendant/Respondent, individually or through his servants, agents, employees or anyone or institution acting under his instructions from using the manuscript, confidential and proprietary information obtained from the Applicants and the William Ronkorua Ole Ntimama’s family to author any book, writing or article about Ole Ntimama’s Biography pending the hearing and determination of the suit herein.b.An interlocutory injunction be and is hereby issued restraining the Defendant/Respondent, individually or through his servants, agents, employees or anyone or institution acting under his instructions from publishing the manuscript or book in relation to the biography or autobiography of the late William Ronkorua Ole Ntimama pending the hearing and determination of the suit herein.c.For the avoidance of doubt, the Respondent is hereby restrained from proceeding in any manner with working on the manuscript the subject of these proceedings or the publication of the same pending the hearing and determination of this suit.d.Costs of the Motion shall abide the outcome of the suit. 41.Orders shall issue accordingly. DATED, SIGNED AND DELIVERED THIS 27TH DAY OF MAY, 2026.S. N. MUTUKUJUDGEIn the presence of:……………………………………for the Applicants……………………………………for the Respondent