[2017] KEHC 2221 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL SUIT NO. 122 OF 2016

DR. PAUL MURGOR...................................PLAINTIFF/APPLICANT

- V E R S U S –

NATION MEDIA GROUP........................................1ST DEFENDANT

THE BUSINESS DAILY.......................................... 2ND DEFENDANT

DAVID HERBLING..................................................3RD DEFENDANT

RULING

1) Paul Murgor, the plaintiff/applicant herein, filed an action against Nation Media Group Limited, The Business Daily and David Herbling being the 1st, 2nd and 3rd defendants/respondents respectively for defamation.

2) The plaintiff/applicant has now taken out the motion dated 18th April 2016, in which he sought for the following orders:

i.This application be certified as urgent and service be dispensed with in the first instance for purposes of this prayer and prayer (ii) (iii) and (iv) herein;

ii.Pending the hearing and determination of this application inter partes, there be an order of temporary injunction, restraining the defendants, their agents, employees, servants or any person claiming through them from further publishing any article, words, material or remarks against, of and concerning the plaintiff in relation to the services that he offered to Mumias Sugar Company Limited as the former Commercial Director of Mumias Sugar Company Limited before his exit from the same company and the alleged reasons for his exit from the same;

iii.Pending the hearing and determination of this suit, there be an order of temporary injunction, restraining the defendants, their agents, employees, servants or any person claiming through them from further publishing any article, words material or remarks against, of and concerning the plaintiff in relation to the services that he offered to Mumias Sugar Company Limited before his ultimate exit from the same company and the alleged reasons for his exit from the same.

iv.The costs of this application be provided for.

3) The motion is supported by the affidavit of Dr. Paul Murgor.

When served, the defendants/respondent herein, filed their grounds of opposition to resist the application. When the motion came up for inter partes hearing, learned counsels appearing in this matter recorded a consent order to have the motion disposed of by written submissions.

4) I have considered the grounds set out on the face of the motion plus the facts deponed in the affidavit filed in support of the motion and the grounds of opposition to oppose the motion. I have also considered the rival written submissions.

5) The gist of the applicant’s case is that vide publications carried in the defendants’/respondents’ Business Daily Newspaper Edition, published on Monday March 14th 2016 at page 8, thereof where the respondent maliciously, falsely, negligently and recklessly caused to be written under the heading “CMA to use second Mumias Sugar Forensic audit in court prosecutions” that went ahead to state that “KPMG was hired in May 2014 to a forensic audit at Mumias Sugar following allegations of illegal sugar imports by the millers top managers, which led to the exit of chief executive Peter Kebati, finance director Chris Chepkoit and Commercial Director Paul Murgor Mumias Sugar in February last year moved to court to recover 1. 1 billion Kenya shillings from the four former executives including Messers, Kebati Chepkoit, Murgor and company secretary Emily Otieno. CMA says the fresh probe will trace and track happenings at the sugar miller and recover any looted or wasted company funds. The Mumias executives were accused of abetting shipment of cheap sugar from Sudan’s Kenana Sugar Company, which was later re-sold under the listed firm’s brand. The scam involved Mumias Sugar managers engaging third parties to import cheap sugar, repackage it as Mumias and raking in super profits for themselves, court documents show Mumias alleges in court papers that the four executives secretly came up with a sugar purchase plant to cater for the miller’s production shortfall and presented it to the Board of Directors for approval yet they are the ones who may have benefited instead of the company.”

6) The applicant avers that the defendants jointly and severally defamed him and continue to do so by engaging in bad publicity, character assassination to incitement of public spite against the applicant. That this is despite the fact that he had written a demand letter to the publisher calling for a retraction and apologies for the same. None of the defendants retracted nor apologised. It is in the applicant submission that he is apprehensive that unless restrained by the court, the defendants are going to continue to malign his name by continuing to publish the defamatory articles against him.

7) The defendants on the other hand are of the view that the applicants application is frivolous, vexatious and an abuse of the process of the court. It is submitted that the applicant has failed to show a prima facie case with a probability of success. The defendants further aver that the applicant is seeking for an equitable remedy and yet he has not come to the court with clean hands. The defendants further aver that their report was matters of public importance. Lastly that the applicant has failed to show any reason in law or otherwise to entile him to the remedy of an injunction. It is in these premises that the defendants think that the plaintiff’s application should be dismissed with costs to them.

8) The principles to be considered in determining an application for an injunction were laid down in the case of Giella vs Cassman Brown & Co. Ltd (1973) EA 358as follows:

i. The applicant must make out a prima facie case with a probability of success; and

ii. The applicant must show that if he is denied the order for injunction he would suffer irreparable loss which cannot be adequately compensated by an award of damages; and

iii. If there is doubt as to either of the above, the court would decide the application on a balance of convenience.

9) The threshold for the grant of interlocutory injunction in defamation cases, was further reiterated in Cheserem vs Immediate Media Services (200) 1 371 (CCK)in which this court held inter alia 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 case, those conditions operate in special circumstances. Over and above the test set out in Giella’s case, 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 libellous and so manifesting defamatory that any verdict to the contrary would be set aside as perverse.”

10) After considering the material placed before this court and the rival submissions, I am convinced that the plaintiff has shown that he has a prima facie case with a high probability of success. Considering the statements and utterances labelled against the plaintiff by the defendants, one of the issues which may arise is whether or not those statements and utterances are defamatory or are they fair comment. It is an issue which can conclusively be determined at the trial. The defendants/respondents however submits that this test has not been met by the plaintiff/applicant and further states that the said publication are true in fact and in substance as per his knowledge of the defendant/ applicant. The plaintiff/applicant is apprehensive that unless an order is issued to restrain the defendants/respondents from further making those statements and utterances, they will repeat the words. A reading of the utterances and statement reveals that the 1st defendant is likely to republish the same.

11) Secondly, an applicant must show the irreparable damage he/she would suffer if the order for temporary injunction is denied. The applicant has clearly stated that his reputation will seriously be damaged if the defendants/respondents continues with their injurious publication because he will be portrayed as a corrupt person unworthy of trust and respect. According to the plaintiff/applicant the injury cannot be compensated by an award of damages. This argument has been contested by the defendants/respondents who have stated that the plaintiff has not shown that his reputation has suffered injury as a result of the publication. In my view at this interlocutory stage, such publication cannot be justified until the suit is heard and determined. It cannot be said that the injury caused can be compensated in monetary terms. I think no amount of money can repay damage of reputation.

12) The third and final principle is that, where the court is in doubt, the application should be decided on a balance of convenience. In the matter before this court, I am not in doubt, hence I do not intend to consider this principle.

13) In the end, the motion dated 18th April 2016 is allowed in terms of prayer (iii). Costs of the motion to abide the outcome of the suit.

Dated, Signed and Delivered in open court this 6th day of October, 2017.

J. K. SERGON

JUDGE

In the presence of:

............................................... for the Plaintiff

.................................................. for the Defendant