[2022] KEHC 9947 (KLR)

Ochieng Alias Boka Ochieng v Mboga Alias Connie Kabarry (Civil Suit E200 of 2021) [2022] KEHC 9947 (KLR) (Civ) (14 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9947 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Suit E200 of 2021

CW Meoli, J

July 14, 2022

Between

Nicodemus Ochieng Alias Boka Ochieng

Applicant

and

Consolata Alilo Mboga Alias Connie Kabarry

Respondent

Ruling

1. Nicodemus Ochieng alias Boka Ochieng (hereafter the Applicant) filed a motion dated 17th August 2021 seeking that pending the hearing and determination of his suit, an order does issue to restraining Consolata Alilo Mboga alias Connie Kabarry (hereafter the Respondent) by herself, her agents, servants or anyone acting on her behalf from writing, producing, broadcasting and publishing and or republishing defamatory information in any manner whatsoever concerning the Applicant particularly allegations broadcasted and published the Respondent’s Facebook timeline; and that pending hearing and determination of the suit an injunction order be issued compelling the Respondent to remove, pull down, expunge and erase from all forms of media including print, broadcast, digital and social media of any form or similar words or statements or content of like effect relating to the Applicant .

2. The grounds on the face of the motion are amplified in the supporting affidavit sworn by the Applicant who asserts that on the 5th, 6th, 8th and 9th August 2021 the Respondent published on her Facebook page several defamatory posts accompanied by photographs of the Applicant, his spouse, residence, property alleging that the Applicant owed her or had defrauded her of monies amounting to shs.1. 1 million and had failed to pay back the money. The Applicant further swore that the Respondent is a well-known local and international actress, singer, and celebrity whose Facebook account and page boasts over 25,144 online followers. He contended that the words as published on the Respondent’s Facebook page was accessible to a wide audience both general public and professional circles and in their natural and ordinary meaning or innuendo were understood by right thinking members of the society to mean that the Applicant is a criminal or thief, he is not accountable for his actions, he cannot be trusted, has no regard for the law , integrity , is dishonorable, and despicable.

3. He further deposes that the Respondent’s statements are false and actuated by malice, reckless and not based on any factual considerations but were meant to disparage his reputation by imputing to him allegations of criminal activity which the Respondent knew or ought to have known to be untrue. He goes on to assert that the statements made by the Respondent amount to serious libel and have caused him grave irreparable damage, distress and embarrassment among family members, peers and public, exposing him to ridicule through negative comments from members of the public. He swore that the Respondent has declined to apologize or withdraw the defamatory statements and he will therefore suffer prejudice if the orders sought are denied.

4. The Respondent opposes the motion through a replying affidavit dated 6th September 2021 in which she deposes that the motion is a non-starter, unmerited, an abuse of the court process and a waste of judicial time. The deponent contends that the Applicant is not truthful; that the parties have been business partners for some time and as a result a fiduciary relationship arose between them, because of which the Applicant frequently borrowed money from the Respondent. She goes on to state that after a while, she declined the Applicant’s requests for soft loans and demanded that the existing debts be settled first; that on or about 23rd April 2021 she paid an advance sum of Kshs. 800,000/- being purchase price for a bar allegedly owned by the Applicant but the Applicant failed to complete the transfer of the bar and she later learned that the property did not belong to the Applicant.

5. She further asserts that in deflecting her attempts to recover the debt the Applicant has consistently posted false statements on social media asserting full payment of the debt and denying any outstanding sums thereon. That the posts or statements published by the Respondent of the Applicant are justifiable and true comment and not defamatory. She complains that the Applicant has through his Facebook account “Boka Ochieng Bokande” made false, disparaging comments, and unjustifiable statements concerning the Respondent. She asserts that the Applicant has not approached the court with clean hands and that his motion is not only vexatious, scandalous but is brought by the Applicant with the intent of escaping a due debt obligation and ought to be dismissed accordingly.

6. In a further affidavit, the Applicant took issue with the Respondent’s depositions and swore that he is a person of repute and is aspiring for political office in Kaloleni Ward, Nairobi County in the upcoming general elections. He asserts that the Respondent’s aim is to scuttle his bid in the said election to the advantage of his opponents; that if the Respondent’s claims are true there are legal avenues through which to pursue her rights. He swore that the Respondent operates an illegal “shylock business” which levies hefty penalties and interest for monies advanced to borrowers. That in order to camouflage her illegal activities from scrutiny by law enforcement agencies, the Respondent executes false partnership agreements with potential borrowers. The Applicant admits to having borrowed money from the Respondent but asserts to have paid the debt together with the interest and accruing penalties.

7. The motion was canvassed by way of written submissions. Addressing the court on whether the said publications were defamatory and malicious, counsel for the Applicant placing reliance on the decisions in Alnashir Visram v Standard Limited [2016] eKLR, Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] eKLR and Phineas Nyagah v Gitobu Imanyara [2013] eKLR argued that the words published by the Respondent were understood to mean that the Applicant is a fraudster and con artist. That since the publication of the defamatory statements is not disputed, the Applicant has established a prima facie case. Concerning the element of irreparable damage arising therefrom, counsel cited the decision in Brigadier Arthur Ndoj Owuor v Standard Limited [2011] eKLR and Article 33 (3) of the Constitution to submit that due to the nature of the defamatory posts, and the Applicant’s standing damages would not suffice.

8. As to whether an intention to repeat the offensive publications had been evinced, counsel cited the decision in Megascope Healthcare Kenya Limited v nation media Group Limited & 4 Others [2021] eKLR to argue that judging from the successive posts made by the Respondent, there is an apprehension that she will continue the offensive publications. Hence the urgent need to restrain her. Lastly counsel asserted that the balance of convenience tilts in favour of the Applicant, having proved special circumstances to warrant the grant of a temporary injunction against the Respondent.

9. Counsel for the Respondent relied on several cases, including Jacob Mwanto Wangora v Hezron Mwando Kirorio [2017] eKLR, Musikari Kombo v Royal Media Services [2018] eKLR and Joseph Njogu Kamunge v Charles Muriuki Gachari [2016] eKLR to submit that the posts by the Respondent were not in any way defamatory, because they were true. That a reasonable man looking at the statements complained of would draw the conclusion of the probability that the Applicant had a debt obligation towards the Respondent. Citing the case of Hon. Uhuru Muigai Kenyatta v Baraza Limited (2011) eKLR , the Supreme Court of Nigeria decision in Joseph Mangtup Din v African Newspaper of Nigeria Ltd (sic- citation incomplete) and the English decision of Digby v Financial News Ltd (1907)1 KB 502 counsel argued that the Respondent’s plea of justification adopted herein is an absolute defence against a claim for defamation. In that regard, counsel reiterated the Respondent’s affidavit material and concluded by submitting that the motion is without merit and should be dismissed.

10. The court has considered the rival affidavit material and the parties’ respective submissions. The principles governing the grant of an interlocutory injunction as enunciated in Giella v Cassman Brown & Co. Ltd [1973] EA 358 are settled. Similarly, as to what constitutes a prima facie case, this is settled too since the decision in Mrao v First American Bank of Kenya Ltd & 2 Others (2003] eKLR. Both decisions have been reaffirmed and applied by superior courts in countless subsequent decisions, including the recent decisions cited in this case by the parties.

11. 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. The Court cautioned that such a court ought to exercise care not to determine with finality any issues arising. The Court expressed itself as follows:“...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. Since those principles are already ....... by authoritative pronouncements in the precedents, they may be conveniently noted in brief as follows:In an interlocutory injunction application, the Applicant has to satisfy the triple requirements to:a)establish his case only at a prima facie levelb)demonstrated 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.”

12. In addition, the Court stated that the three conditions apply separately as distinct and logical hurdles to be surmounted sequentially by the Applicant. That is to say that the 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.

13. As to what constitutes a prima facie case, the Court of Appeal delivered itself as follows: -“Recently, this Court in Mrao Ltd. V. First American Bank of Kenya Ltd & 2 others [2003] KLR 125 fashioned a definition for “prima facie case” in civil cases in the following words:“In civil cases, a prima facie case 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 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.”We adopt that definition save to add the following conditions by way of explaining it. The party on whom the burden of proving a prima facie case lies must show a clear and unmistakable right to be protected which is directly threatened by an act sought to be restrained. The invasion of the right has to be material and substantive and there must be an urgent necessity to prevent the irreparable damage that may result from the invasion. We reiterate that in considering whether or not a prima facie case has been established, the court does not hold a mini trial and must not examine the merits of the case closely. All that the court is to see is that on the face of it the person applying for an injunction has a right which has been or is threatened with violation. Positions of the parties are not to be proved in such a manner as to give a final decision in discharging a prima facie case. The Applicant need not establish title, it is enough if he can show that he has a fair and bona fide question to raise as to the existence of the right which he alleges. The standard of proof of that prima facie case is on a balance or, as otherwise put, on a preponderance of probabilities. This means no more than that the Court takes the view that on the face of it the Applicant’s case is more likely than not to ultimately succeed." (Emphasis added).

14. In addition, this suit not being an ordinary suit, but one brought for defamation, it is pertinent to bear in mind the counsel contained in Micah Cheserem v Immediate Media Services & 4 Others (2000)eKLR. This is what Khamoni J (as he then was) stated in that case:“Maybe counsel did not address me fully on the relevant law because it is not appreciated that the question of an injunction in defamation cases is treated in a special way. Here injunction is not treated in the way it is treated in other cases. I looked at the relevant authorities and considered the matter in the case of Francis P Lotodo vs Star Publishers & Magayu Magayu in HCCC No 883 of 1998 and found that though the conditions applicable in granting an injunction as set out in the case of Giella vs Cassman Brown & Co Ltd [1973] EA 358 generally apply, in defamation cases those conditions operate in special circumstances. Those conditions have to be applied together with the special law relating to the grant of injunction in defamation cases where 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 matters complained of are libelous. It must be satisfied that the words are so manifestly defamatory that any verdict to the contrary would be set aside as perverse.But how will the Court be so satisfied when the application for an injunction in a defamation action is, like in the instant case, filed at the initial stage? It is filed before pleadings are closed. How will the Court be so satisfied?Further, even when the Court is satisfied that the words are so manifestly defamatory that any verdict to the contrary would be set aside as perverse, can the Court grant an injunction where the respondent has the defence of qualified privilege or where the respondent is pleading justification or fair comment? We will be at a stage where the Court has not yet heard and seen witnesses testify. Their evidence has not therefore been tested, canvassed, and evaluated. The respondent or defendant is pleading qualified privilege and therefore justification or fair comment, being a defence which defendants in actions which are not for defamation normally do not have. Does the Court grant an interlocutory injunction?From the authorities and the law, I considered in the case of Francis P Lotodo, I found that defamation cases are special actions as far as the granting of injunctions is concerned. This is because generally and basically, actions or cases of defamation bring out a conflict between private interest and public interest, and this is more so in Kenya where we have the country’s Constitution which has provisions to protect fundamental rights and freedoms of the individual including the protection of freedom of expression”.

15. The starting point therefore is the Constitution. Article 33(1) of the Constitution guarantees every person’s right to freedom of expression including the freedom to seek, receive or impart information or ideas but sub-Article (3) states that “In the exercise of the right to freedom of expression, every person shall respect the rights and reputation of others”. Article 32(1) guarantees the right to freedom of conscience, belief and opinion, inter alia. Articles 25 and 31 protect the inherent dignity of every person and the right to privacy. See also the provisions of the Defamation Act. Contemplating these competing rights Lord Denning MR stated in Fraser v Evans & Others [1969]1 ALLER 8“The right of speech is one which it is for the public interest that individuals should possess, and indeed, that they should exercise it without impediment, so long as no wrongful act is done; and unless an alleged libel is untrue, there is no wrong committed.”

16. In Halsbury’s Laws of England 4th Edition Vol. 28 paragraph 10- a defamatory statement is defined as follows:“….a statement which tends to lower a person in the estimation of right-thinking members of society generally or to cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule, or to convey an imputation on him disparaging or injurious to him in his office, profession, calling, trade or business”.

17. Additionally, Gatley on Libel and Slander 6th Edn. states that:“A man commits the tort of defamation when he publishes to a third person words (or matter) containing an untrue imputation against the reputation of another”.

18. As stated in Selina Patani & Another vs Dhiranji V. Patani (2019) eKLR’s the law of defamation is concerned with the protection of reputation of persons, that is, the estimation in which such persons are held by others. In that case, the Court of Appeal stated that:“In rehashing, we note the ingredients of defamation were summarized in the case of John Ward v Standard Ltd. HCC 1062 of 2005 as follows:i.The statement must be defamatoryii.The statement must refer to the plaintiffiii.The statement must be published by the defendantiv.The statement must be false.”

19. In this instance, the Respondent has not disputed publication of the posts complained of on her Facebook page. In the case of the Onama v Uganda Argus Ltd (1969) EA the East African Court of Appeal stated as follows:“In deciding whether the words are defamatory, the test is what the words could reasonably be regarded as meaning, not only to the general public, but also to all those “who have a greater or special knowledge of the subject matter”.

20. The Court stated in Elizabeth Wanjiku Muchira v Standard Ltd [2011] eKLR that whether a statement is defamatory or not is not so much dependent on the intentions of the defendant but on the “probabilities of the case and upon the natural tendency of the publication having regard to the surrounding circumstances. If the words published have a defamatory tendency it will suffice even though the imputation is not believed by the person to whom they are published.”-Clerks & Lindsell on Tort 17th Edition 1995-page 1018. ”

21. Looking at the contents of the admitted publications, namely, the Respondent’s posts between 4th and 9th August 2021, the statements therein if untrue, are patently defamatory of the Applicant. For instance, the post-dated 5th August 2021 reads in part:“Boka Ochien’ng Bokande (admitted alias of Applicant) I thought you were a friend, you were a common guest in my house , all my kids know you, they used to see you come to my house and ask for money , how do I even tell them that uncle Boka conned me.., you lied to me about giving me your bar taffy knowing very well it was not yours , you kept on telling me that your wife is telling you to use Kinoti (Director, Criminal Investigations) to protect you from paying me but you said wewe ni mtu unaenda church , unajua Mungu (you’re a God- fearing Christian) you can’t do that, then it was promises after promises….gave you so much money without signing anything and you now take advantage of that against me.. at first, I thought you were broke kumbe (alas) you had money and decided to buy your wife a car…1. 1m is not small money, please have mercy and pay me my money, how do you take someone’s wife money to buy your wife a car? Boka How ...” (sic)

22. These allegations are replicated in one form or other in the subsequent posts made by the Respondent. The Respondent has through her replying affidavit annexed posts by the Applicant requesting the Respondent for cash advances (see annexures marked COM 2, COM 3, COM 4) and the Applicant’s posts admitting that he had indeed received monies from the Respondent and was indebted to her, having failed to pay as agreed. See for instance the Respondent’s annexures marked COM 7, COM 9, COM 11, and COM 13. The Applicant in his supporting affidavit was initially silent on the matter of his debts and chose to only annex the posts by the Respondent about which he was aggrieved. Nowhere in his supporting did he refer to loan advances or commercial dealings with the Respondent. However, in his supplementary affidavit he dismissed the Respondent’s statements as false while admitting that he had received some monies from the Respondent. Although he had claimed in one of his posts (COM 11) to have paid Shs.1. 5 million towards the debt, he swore in the supplementary affidavit that the debt outstanding was disputed and therefore the Respondent’s accusations were malicious. He did not tender any evidence of payments made or accounts thereof.

23. In Micah Cheserem’s case, the learned Judge cited in Bonnard and another V. Perryman (1891 -4) ALLER 968,“"Although the publication, if untrue, would clearly be libellous, an interlocutory injunction will not be granted where the defendant pleads justification unless the Court can be sure his defence cannot be sustained at the trial and that the plaintiff will receive more than nominal damages."

24. The learned Judge proceeded to state that:“Here pleadings had been closed and the Court had no problem.In Fraser vs Evans and Others also referred to earlier, it was held:“The Court would not restrain the publication of an article, even though it was defamatory, when the defendants said that they intended to plead justification or fair comment."In that case the defendants only intended to plead justification or fair comment. It was because they were to be restrained from publishing before they published the article the plaintiff feared could be published and defame him. The defendants admitted that the article, when published, would be defamatory of the plaintiff but said that, if they were sued, they would plead justification or fair comment.The Court said it could not restrain the defendants when the defendants said they intended to justify the article or to make fair comment on a matter of public interest. The defendants had said that through a replying affidavit. The Court went on to say:“That has been established for many years ever since Bonnard v Perryman (1). The reason sometime given is that the defences of justification and fair comment are for the jury, which is the constitutional tribunal, and not for a judge; but a better reason is the importance in the public interest that the truth should out."…

25. The Court cited the words of Lord Coleridge CJ, (as he then was) in the English case of Bonnard and another vs Perryman (1891-4) All ER 965 at page 968:“It is obvious that the subject matter of an action for defamation is so special as to require exceptional caution in exercising the jurisdiction to interfere by an injunction before the trial of an action to prevent an anticipated wrong. The right of free speech is one which it is for the public interest that individuals should possess, and, indeed, that they should exercise without impediment, so long as no wrongful act is done; and unless an alleged libel is untrue, there is no wrong committed; but, on the contrary, often a very wholesome act is performed in the publication and repetition of an alleged libel. Until it is clear that an alleged libel is untrue, it is not clear that any rights at all have been infringed; and the importance of leaving free speech unfettered is a strong reason in cases of libel for dealing most cautiously and warily with the granting of interim injunctions."See also In Uhuru Muigai Kenyatta V Baraza Leonard [2011] eKLR.

26. The court has considered the Respondent’s replying affidavit, defence and counterclaim. Clearly, she is pleading justification as her defence. As held in Digby’s case, a plea of justification is a complete defence to a claim founded on defamation, and unless at interlocutory stage the court is assured that such defence cannot be sustained at the trial the court will be wary to grant an interim injunction. Reviewing all the available material, the Court does not feel assured that a proper case has been made by the Applicant to warrant the granting of the interim injunctive orders sought. The motion dated 17th August 2021 is accordingly dismissed with costs to the Respondent.

DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 14TH DAY OF JULY 2022C.MEOLIJUDGEIn the presence of:For the Applicant: N/AFor the Respondent: Mr. Odhiambo h/b for Mr. OkulloC/A: Carol