[2017] KEHC 6742 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL SUIT NO. 27 OF 2016

TABITHA MUKAMI KAMAU ................................................1ST PLAINTIFF

TROJAN NOMINEES ..........................................................2ND PLAINTIFF

-V E R S U S –

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

ENOCK SIKOLIA ........................................................... 2ND DEFENDANT

KENYA AGRICULTURAL & LIVESTOCK

RESEARCH ORGANIZATION ....................................... 3RD DEFENDANT

TITUS LANYASUNA ........................................................ 4TH DEFENDANT

RULING

1) The subject matter of this ruling is the Further Amended Motion dated 11th July 2016 taken out by the plaintiffs herein namely; Tabitha Mukami Kamau and Trojan Nominees Ltd. In the aforesaid motion the plaintiffs are basically praying for:

An order of injunction to restrain the Defendants/Respondents or their agents, or servants from airing, broadcasting or presenting, referring to the applicants in any manner whatsoever adverse to their reputation and standing or which ridicules or portrays them negatively in the eyes of the general public pending the hearing and determination of the suit.

2) The motion is supported by the affidavit jointly sworn by the plaintiffs. When served, Nation Media Group and Enock Sikolia, the 1st and 2nd defendants filed grounds of opposition to resist the motion. Kenya Agriculture and Livestock Research Organization and Titus Lanyasunya, the 3rd and 4th defendants filed the replying affidavit of Titus Lanyasunya to oppose the motion. When the motion came up for interpartes hearing learned counsels recorded a consent order to have the motion disposed of by written submissions.

3) I have considered the grounds stated on the face of the Further Amended Motion and the grounds of opposition.

I have further considered the facts deponed in the affidavits filed in support and against the application. I have also considered the rival written submissions.

4) It is the argument of the plaintiffs that there is an investigation report dated 2nd July 2005 by the National Police Service requested by the 3rd defendant which confirms that the 2nd applicant owns the land in question i.e Naivasha BlockV/289 and that the 3rd respondent has never owned the land in question. The plaintiffs further submitted that the airing and publication of the story by the 1st and 2nd respondents is a clear act of malice. It is argued that unless the orders sought are granted, the plaintiffs will continue to suffer loss and damage. It is said that on 13. 1.2016 in the NTV news bulletin at 7. 00pm and 9. 00pm, the 1st and 2nd defendants/respondents aired or caused to be aired a story entitled “Kari Land Grab” in which the story alleged that the 1st and 2nd plaintiffs were politically connected individuals and companies grabbed the 3rd defendants land as reported by the 2nd defendant. It is said that the story was also trending on social media as “KARI LAND GRABS”.

5) The 1st and 2nd respondent opposed the motion by filing grounds of opposition. They argued that the article raised issues touching on the irregular allocation of the 3rd defendant’s land herein. It is also stated that the article complained of, the plaintiffs were not named.

6) The 3rd and 4th defendants stated that it is indeed true that public land has been grabbed and that has been evidenced by court documents that have been filed in the Land and Environment Court. It is also argued that the plaintiffs have not shown how the said publication is defamatory to warrant orders of injunction.

7) The principles applicable in determining an application for injunction in defamation cases are similar to those applied in other civil cases. Those principles were stated in the case of Giella =vs= Cassman Brown & Co. Ltd (1973) E.A 358.

First, an applicant must show that he has a prima facie case with a probability of success.

Secondly, an applicant must show that he would suffer irreparable loss if the order is denied.

Thirdly, that where the court is in doubt, the application would be determined by considering the balance of convenience.

8. However in the case of Cheserem =vs= Immediate MediaServices (2000) E.A this court stated that applications for interlocutory injunctions in defamation cases are treated differently from ordinary cases as they bring out conflicts between private and public interest.

9) To answer the question as to whether or not the plaintiffs have shown a prima facie case with a probability of success, the court will look at the material placed before it. The plaintiffs have referred to a broadcast done on 13th January 2016 which they alleged was defamatory to them. It has already been pointed out that there are pending two lawsuits over the 3rd defendant’s land. In those cases the pleadings reveal that there are allegations that the 3rd defendant’s land has been illegally allocated and transferred. Those cases have generated a lot of public interest. The question as to whether or not the plaintiffs legitimately acquired the property in dispute will have to be adjudicated by the court trying those suit. Trials are done in public and the pleadings in the public domain. The words grabbing of land is used severally in those suits. The documents are accessible to the members of the public. In the circumstances the 1st and 2nd defendants may legitimately raise the defence of fair comment and qualified privilege. Of course, this court is minded to state at outset that the 1st and 2nd defendants must act responsibly while reporting and without exaggerating their reports and broadcasts. In the circumstances of this case I am not satisfied that the plaintiffs have a prima facie case.

10. The other question is whether the plaintiffs will suffer irreparable loss if the order for injunction is denied. There is an averment in that the defendants actions have caused irreparable harm and damage to her career. When faced with such a situation, the applicant is required to give particulars of actual damage. It is not enough to just make sweeping averments. In this case the plaintiffs have just made general averments without giving specifics on the nature of damage.

11) The third principle to consider is that which relates to a balance of convenience. There is no doubt that issues raised in the alleged broadcast and the court pleadings touch on land grabbing of public land. Here there is a conflict between public interest and private interest. It is important to allow balanced and objective reporting to continue flowing freely for the consumption of the public. I think the balance of convenience tilts in favour of the dismissal of the motion.

12) In the end, I find no merit in the motion. It is dismissed with costs to the defendants.

Dated, Signed and Delivered in open court this 10th day of March, 2017.

J. K. SERGON

JUDGE

In the presence of:

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

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