[2023] KEHC 24592 (KLR)

Tuko Media Limited v Pembe Flour Mills Ltd (Civil Appeal E1002 of 2022) [2023] KEHC 24592 (KLR) (Civ) (3 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24592 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E1002 of 2022

AN Ongeri, J

November 3, 2023

Between

Tuko Media Limited

Appellant

and

Pembe Flour Mills Ltd

Respondent

(Being an appeal from the ruling of Hon. M. W. Murage (CM) in Milimani CMCC No. E1777 of 2022 delivered on 11/11/2022)

Judgment

1. This is an interlocutory appeal from a ruling delivered on 11/11/2022 which allowed the respondent’s application dated 31/03/2022 which was coached in the following terms;“I have considered the application, replying affidavit and the submissions filed. The issue for determination is whether the application should be allowed. Has the applicant satisfied the grounds set in Giella v Cassman Brown (1973) EA. The respondent does not deny publishing the words in question. Whether defamatory or not can only be determined at the hearing of the suit. Meanwhile the orders sought are hereby issued a prima facie case in my view has been established.Orders accordingly”.

2. The Appellant filed the appeal on the following grounds;That the learned Magistrate erred in fact and in law by:a.Allowing the Plaintiff’s application dated 3/3/2022 in its entirety including pulling down the alleged defamatory publication;b.Delivering a contradicting ruling;c.Ignoring the submission of the Appellant and subsequently allowing the respondent’s application dated 31/3/2022; andd.Delivering a ruling that did not meet the requirements of Order 21 Rule 4 and 5.

3. The Appellant prays for the appeal to be allowed; the ruling and order of the trial court to be reviewed appropriately and set aside and the cost of the appeal be provided for.

4. The parties filed written submissions as follows;

5. The appellant submitted that the Learned Magistrate found that the question of whether the Publication was defamatory could only be determined at the hearing of the main suit yet went ahead to state that the Respondent had proven a prima facie case, granted an injunction and directed the Appellant to pull down the alleged defamatory Publication.

6. The appellant further submitted that a mandatory injunction is a discretionary relief, granted where evidence tendered is strong, compelling and uncontroverted, under special circumstances at the interlocutory stage because it has finality to the outcome of a suit, as it can cause miscarriage of justice and irreparable injury to a party which may not be redeemable by damages at the conclusion of the suit.

7. The Appellant further submitted that the trial court did not explain any special circumstances in the respondent’s application that could warrant issuance of a final mandatory order directing the Appellant to pull down the alleged defamatory publication, and by pulling it down, the suit will stand already determined.

8. The Appellant relied on the finding in the matter of Humanist Institute for the Cooperation with Developing Countries (HIVOS) v Kenya National Farmers Federation (KENAFF) (2020) eKLR where the Court held that:“. . .A mandatory injunction . . . is to be more drastic in its effects than a prohibitory injunction. At the trial of the action of the Court will of course grant such injunctions as justice requires but at the interlocutory stage, when the final result of the case cannot be known and the Court does the best it can, I think the case has to be unusually strong and clear before a mandatory injunction can be granted even if to enforce a controversial obligation . . .The circumstances depicted do not disclose the clearest of cases, or special circumstances to warrant a grant of mandatory injunction . . . the mandatory injunction sought will amount to a grant of final orders before hearing and determination of the main suit. They are preemptory of the interparties hearing as the orders compel compliance of contested issues that can only be determined during the hearing."

9. The Appellant urged this Court that the Ruling of the trial Court be set aside and the appeal be allowed with costs.

10. The Respondent submitted that interlocutory injunctions in Defamation cases had a higher threshold than injunctions granted in other matters, which the respondent had met. it submitted that it had already proven a prima facie case against the test set out by the Court of Appeal in the matter of Selina Patani &anorv Dhiranji v Patani (2009) eKLR where the Court held that a defamatory statement must be:i.Defamatory;ii.Referring to the Plaintiff;iii.Published by the Defendant; andiv.False.

11. It submitted that the ordinary meaning of the Published words put the Respondent in bad light and had right thinking members of society perceive the Respondent as shrewd, unscrupulous, and a dishonest business entity.

12. That the respondent being an entity making edible products, it was put at the risk of losing public trust and business licenses which would lead to loss of revenue and eventual closure. An award of damages would not compensate such loss and such risk of irreparable harm entitled the Respondent to a mandatory injunction.

13. The Respondent also submitted that the Appellant’s defence that it was exercising its freedom of speech would still be available to it should the suit be decided in its favour and they could re-upload the publication on their website.

14. The Respondents further said that the Appellant had also failed to prove that it had conducted any background check to establish the veracity of the published statements nor given the respondent a fair opportunity to respond before publishing. The Appellant had also not demonstrated protection of any Public interest. The Respondent prayed for the Appeal to be dismissed with costs.

15. The sole issue for determination in this appeal is whether the respondent established the grounds for grant of an interlocutory injunction.

16. I find that the trial court relied on the case of Giella v Cassman Brown (1973) EA which sets out the conditions for grant of an injunction as follows:“First, 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.”

17. I find that the trial court did not state what exceptional circumstances or strong case the Respondent had put up to warrant the grant of a mandatory injunction at interlocutory stage.

18. The ruling stated that the issue as to whether the publication was defamatory or not can only be determined at the hearing of the suit. In the circumstances, I find that the Respondent did not establish a prima facie case with a probability of success since it was not a clear case.

19. The grant of an injunction at this stage would amounted to determining the suit prematurely before hearing the parties.

20. In the case of Locabail International Finance Ltd v Agroexport and Others [1986] 1 All ER 901 the Court stated as follows:“A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances, and then only in a clear case either where the court thought that the matter ought to be decided at once or where the injunction was directed at a simple and summary act which could be easily remedied or where the defendant had attempted to steal a march on the plaintiff. Moreover, before granting a mandatory interlocutory injunction the court had to feel a high degree of assurance that at the trial it would appear that the injunction had rightly been granted, that being a different and higher standard that was required for a prohibitory injunction."

21. The appeal has merit and the same is allowed and the order of the Trial Court is set aside and replaced with an order dismissing the Application dated 31st March 2022.

22. The Trial Court is directed to hear the parties before deciding whether or not the impugned Article was defamatory.

23. The costs of this appeal to abide the cause.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 3RD DAY OF NOVEMBER, 2023. A. N. ONGERI.....................................JUDGEIn the presence of:.................................. for the Appellant.................................. for the Respondent