[2025] KEHC 2985 (KLR)

Wainaina v Mendenhall & 2 others (Civil Case E023 of 2024) [2025] KEHC 2985 (KLR) (13 March 2025) (Ruling)

Neutral citation: [2025] KEHC 2985 (KLR)

Republic of Kenya

In the High Court at Thika

Civil Case E023 of 2024

FN Muchemi, J

March 13, 2025

Between

Salome Wainaina

Plaintiff

and

Preston Mendenhall

1st Defendant

Tatu City Limited

2nd Defendant

Rendeavour Services Limited

3rd Defendant

Ruling

1. The application dated 2nd August 2024 seeks for orders of injunction restraining the defendants, their servants and/or agents from publishing any defamatory posts or publications with reference to the applicant regarding any transaction touching on the approval of the Tatu City Master Plan or any other defamatory utterances concerning the applicant until the hearing and determination of the suit.

2. In opposition to the application, the respondents filed a Replying Affidavit dated 22nd December 2024.

The Applicant’s Case. 3. The applicant states that she is (County Executive Committee) Lands, Housing, Physical Planning, Municipal Administration and Urban Development County Government Kiambu. On 10th July 2024, the applicant states that the respondents convened a press conference and published a highly defamatory and libellous pamphlet titled “Tatu City Condemns Kiambu County Governor over Extortion Attempt” with a prominent photograph of herself and below a statement reading “Extortion of Foreign Direct Investors”.

4. The applicant avers that at the said media briefing, the 1st respondent uttered words and addressed the participants on her alleged extortion of their project alleging that she was in cahoots with the governor of Kiambu County to extort land from them. The applicant further avers that the media briefing was recorded and the 3rd respondent uploaded it to its YouTube account at https://www.youtube.com/watch?v=mDq6aiiQKums where it has gained a large audience and has been viewed internationally and continues to be publicly available.

5. The applicant states that the briefing and the pamphlet have been circulated widely tainting and defaming her good character both in her official and private capacity as the CEC Lands, Housing, Physical Planning, Municipal Administration and Urban Development County Government of Kiambu.

6. The applicant states that the said publications contain the following words to say “Aiding and abetting extortion” “harassment of local and foreign investors” “destroyer of youth job creation in Kiambu County” “extortion of foreign direct investors”. The applicant avers that the said words are false, untrue and defamatory as she has never participated in any corrupt scheme and the respondents are maliciously defaming her for their selfish personal needs.

7. The applicant argues that the issues the respondents are defaming her over are matters that she has handled in her official capacity as the CEC Lands, Housing, Physical Planning, Municipal Administration and Urban Development County Government of Kiambu. The applicant further argues that the allegations that she is corruptly extorting the respondents off land for the governor’s personal use are all malicious falsehoods as the Physical and Land Use Planning Act requires the surrender of land by an applicant for development control permission and the respondents are not above the law.

8. The applicant states that she believes that the respondents are accusing her of extortion in an attempt to muzzle her and intimidate her into approving an illegality which will have negative effects on the citizens of Kiambu County as the Tatu City Area will not have any public utilities as required of a properly planned development.

9. The applicant avers that despite issuing a demand letter upon the respondents to stop peddling their defamatory and libellous falsehoods, the respondents seem unbowed by the dictates of common decency and are hell bent in their defamatory pursuits rendering the intervention of this court.

10. The applicant argues that the defamatory words and statements published by the respondents and attributed to her are malicious, reckless and beyond the frontiers of freedom of expression as recognized under the Constitution and are only meant to disparage against her as a humble civil servant.

11. The applicant further argues that the defamatory statements have gained momentum and international prominence and are currently circulating beyond their borders thereby injuring her irreproachable reputation and unless the court grants interlocutory relief she stands to continue to suffer continuing defamation to her good character and no amount of compensation will be adequate.

12. The applicant states that the respondents’ nefarious intention was to cause her personal harm as they called the press briefing in the middle of nationwide protests against government corruption and cost of living crisis with the intention of causing her personal harm by having the protestors target her and the governor of Kiambu and cause them personal harm similar to what has been happening to elected leaders in the country.

13. The applicant further states that the publications remain available and accessible across the respondents’ social media platforms and handles despite her issuance of a demand letter to them and as a consequence, she is being subjected to public hatred, ridicule and untold harassment and her personal safety is at risk.

14. The applicant avers that she is a public figure and her reputation underpins her continued performance of the duties of her office and she is a role model to many people across Kiambu county and the nation at large and unless the respondents are restrained by this honourable court her reputation will be irretrievably tainted, blemished and lowered in the estimation of right thinking members of the public who expect their leaders are persons of unquestionable integrity.

The Respondents’ Case. 15. The respondents state that the instant application is frivolous, a sham, inherently incompetent and amounts to a blatant abuse of the due process.

16. The respondents state that they convened a press conference on 10th July 2024 to blow the whistle on the applicant’s attempts to extort them of land worth a colossal amount of four point three billion shillings for her own selfish gain to their detriment and the detriment of the citizens of Kiambu County. The respondents further state that they were forced to convene the press conference to shed light on the underhanded tactics employed by the applicant and her boss to pressure them into doing personal favours for them to their detriment, the detriment of the people of Kiambu county and the country as a whole.

17. The respondents aver that the statement issued at the press briefing was an accurate description of the applicant’s as well as her boss’s attempts to extort them of their property without just compensation and the same cannot be described as defamatory. Furthermore, the respondents state that the press briefing was purposed to expose the ills of the applicant as an official of Kiambu County. Specifically, her attempts to extort Tatu City Limited, one of their largest foreign investors in the country out of property worth billions of shillings which has a direct impact on the economy of Kiambu county and the country as a whole. The respondents argue that it was prudent that they use a medium that would reach the country as a whole.

18. The respondents aver that it was in public interest that they convened the press conference to expose the extortion of foreign investors which has an adverse effect on the country’s ability to attract investment.

19. The respondents state that the applicant is trying to deflect responsibility for her extortionist conduct at the instructions of her boss against them by trying to paint them as bullies attempting to pressure the county government to do their bidding. The respondents further state that it is the applicant and her employer who have tried to use their power and influence to force them to surrender land for the governor’s personal use without just compensation.

20. The respondents aver that through a letter dated 7th May 2024 addressed to the National Director, State Department for Lands and Physical Planning, they responded to the demands made by the County Government of Kiambu on the amended Tatu City Local Physical and Land Use Development Plan. The respondents further aver that through various correspondence, they have been following up on getting a letter of no objection from the county government of Kiambu noting that it has complied with all the relevant laws. However their plans have severely been curtailed by such corrupt acts by the applicant hindering progress in key areas.

21. The respondents state that the statements made at the press briefing were true and justified and were informed by their interactions with the applicant and the governor of Kiambu county. The applicant’s attempt to forcefully seize land by leveraging the approval of the Tatu City Master Plan amounts to extortion and an abuse of public office and could not be left to stand making the press conference in question a matter of urgency to expose and combat corruption in the country. The respondents further state that the statements made at the press briefing were true and as such the applicant’s description of the same as defamatory is deliberately misleading and an attempt to gain sympathy from this honourable court. Furthermore, the applicant is desperately trying to deflect blame for her conduct by discrediting their press briefing as an attempt to expose her to physical harm which is false.

22. The respondents aver that the applicant’s conduct is unbecoming of a public officer of his calibre and influence. Further, the respondents state that Chapter Six of the Constitution requires all state officers including and especially the persons in positions of power such as the applicant to conduct themselves in a manner that avoids any conflict between their personal interest and official duties and every citizen has an obligation to ensure that state officers uphold the highest standard of integrity when discharging their official duties by exposing those who contravene the provisions of Chapter Six of the Constitution.

23. The respondents aver that the court has an obligation to aid citizens in the pursuit of good governance by protecting whistle blowers against frivolous suits like the instant one and embolden more people to come out and expose persons who abuse public office.

24. Parties disposed of the application by way of written submissions.

The Applicant’s/Plaintiff’s Submissions 25. The applicant relies on the case of Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] eKLR and submits that she has established a prima facie case with a probability of success. The applicant submits that her reputation and career that she has built over the years is on the line and the same has been defamed. The applicant submits that on 10th July 2024, with malicious intent, the respondents authored and published a highly defamatory and libellous statement titled “Tatu City Condemns Kiambu County Governor over Extortion Attempt” together with a prominent colour photograph of herself captioned in a media briefing booklet defaming her with the title “Extortion of Foreign Direct Investors”.

26. The applicant submits that the said article and statements were released during a media briefing and were also deliberately circulated widely both physically and online and were aimed at tainting her character in her official and private capacity as the CEC Lands, Housing, Physical Planning, Municipal Administration and Urban Development County Government of Kiambu. The publication tainted her reputation to mean that she aids and abets extortion; harasses the local and foreign investors; is a destroyer of youth job creation in Kiambu County and extorts foreign direct investors.

27. The applicant submits that the said malicious and misleading statements were made to tarnish her reputation and good name that she has built over the years. Despite being served with a demand letter, the respondents continue to make, publish and cause to be circulated the defamatory statements which infer lack of integrity and a scheming conspirator thereby alleging that she is corrupt and a person who uses her office to solicit bribe.

28. The applicant argues that the respondents continue to engage in bad publicity, character assassination and incitement of public spite against her through social media that is widely used across Kenya and the world.

29. The applicant further argues that the said defamatory words are malicious, false, reckless and beyond the frontiers of freedom of expression as recognized under the Constitution of Kenya 2010.

30. The applicant further submits that the defamatory statements have gained momentum and are circulating beyond their borders thereby injuring her irreproachable reputation. The publications remain available and accessible across platforms and media room as a result, the applicant is being subjected to public hatred, ridicule and untold harassment.

31. The applicant relies on the case of Board of Management of Uhuru Secondary School v City County Director of Education & 2 Others [2015] eKLR and Law Society of Kenya v Officer of the Attorney General & Another; Judicial Service Commission (Interested Party) [2020] eKLR and submits that she stands to suffer prejudice if the orders sought are not granted as her reputation that she has built over the years will continue to be tainted, she will loose respect from her peers and her role models and persons that look up to her and she will continue to be subjected to public hatred and ridicule and untold embarrassment.

32. The applicant further submits that the publication is not based on fair comment, justification and absolute and qualified privilege and consent to the publication and innocent dissemination not obtained or applicable therefore the same is not justified.

33. The applicant relies on the cases of Benjamin Temut Kerema v Michael Kihambilu Lugwili & 3 Others [2020] eKLR; Nguruman Ltd v Jan Bonde Nielsen [2014] eKLR and Paul Kiprono Chepkwony v The Attorney General of the Republic of Kenya Application No. 17 of 2018 East Africa Court of Justice at Arusha and submits that the balance of convenience tilts in her favour.

34. The applicant further relies on the case of Supermarine Handling Services Ltd v Kenya Revenue Authority [2010] eKLR and submits that as she has established that she has a prima facie case with a high chance of success and thus a successful litigant she ought to be awarded costs.

The Respondents’/Defendants’ Submissions 35. The respondents rely on the cases of Mrao Ltd v First American Bank of Kenya & 2 Others [2003] KLR 123 and Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR and submit that the applicants have not established a prima facie case with high chances of success as they have shown that they did not defame the applicant. The respondent further submit that the statements issued were substantially true and they have demonstrated the same through correspondence in their annextures. The respondents argue that it is a well settled principle of defamation law that truth is an absolute defence and no claim for defamation can arise from the publication of truthful information regardless of whether the applicant finds the information embarrassing or inconvenient.

36. The respondents submit that the applicant appears to rely solely on the argument that they are now embarrassed by the disclosure of their conduct. However, embarrassment, discomfort, or damage to personal pride does not suffice to establish a claim for defamation. The courts have consistently held that the law of defamation is not a shield for parties to hide behind when truthful information about their actions comes to light.

37. The respondents further submit that they have provided incontrovertible evidence confirming that the applicant attempted to manipulate them into issuing them land to which they had no lawful claim. The said evidence not only substantiates the truth of the statements but also underscores the public interest in exposing such conduct. The respondents submit that the applicant’s claim is an abuse of the court process, seeking to use the judicial system as a tool to silence legitimate criticism and factual reporting.

38. The respondents argue that other than mere allegations, the applicant has not demonstrated what sort of irreparable damage she would suffer given that the averments are factual matters. The applicant’s failure to provide specific, concrete evidence of how they will suffer irreparable injury absent the orders sought undermines their request for relief. Without a showing of harm that cannot be addressed through other legal means, their claim does not meet the stringent standard for injunctive relief. The claim of irreparable injury is speculative and insufficient.

39. The respondents submit that they have not repeated, endorsed, or otherwise reinforced the statements made during the press conference. That cessation demonstrates that the alleged defamatory conduct is not ongoing. The respondents further submit that their responsibility does not extend to how third parties have chosen to interpret, investigate, or disseminate the content of the press conference after the fact.

40. The respondents submit that any continued discussion or investigation of the news by third parties is beyond their control and cannot be attributed to their actions. The independent behaviour of the third parties does not create liability for the respondents particularly when there is no evidence suggesting that they encouraged or facilitated such discussions after the initial press conference.

41. The respondents submit that their lack of further engagement with the press conference issues and the independent actions of third parties absolve them of liability for any continuing harm.

42. The respondents argue that since the applicant has failed to show that she has a prima facie case with a probability of success, the court should not consider where the balance of convenience lies. The respondents argue that balance of convenience cannot and should not lie in favour of a party whose sole intent is to abuse the process of the court and is only intended to frustrate them.

Issue for determination 43. The main issue for determination is whether the applicant has met the requisite conditions to warrant the granting of a temporary injunction in this claim pending hearing and determination of the suit.The LawWhether the applicant has met the requisite conditions to warrant the granting of a temporary injunction.

44. The principles of interlocutory injunction are now well settled. Those principles were set out in East African Industries v Trufoods [1972]EA 420 and Giella v Cassman Brown & Co. Ltd [1973]EA 358. Restating the said principles, Ringera J, (as he then was) in Airland Tours & Travel Limited v National Industrial Credit Bank Nairobi (Milimani) HCCC No. 1234 of 2002 set them out as follows:-a.A prima facie case with a probability of success at trial;b.The applicant is likely to suffer an injury, which cannot be adequately compensated in damages;c.If the court is in doubt about the existence or otherwise of a prima facie case it should decide the application on a balance of convenience;d.The conduct of the applicant meets the approval of the court of equity.

45. The parameters within which a temporary injunction should issue in defamation cases has been discussed in Micah Cheserem v Immediate Media Services [2002] 1 EA 371 where the court held as follows:-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 v Cassman Brown & Company Limited [1973] EA 358 generally applies in defamation cases, those conditions operate in special circumstances. Over and above the test set out in Giella’s case in defamation, 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 libelous and also that the words are so manifestly defamatory that any verdict to the contrary would be set aside as perverse. Normally, the court would not grant an interlocutory injunction when the defendant pleads justification or fair comment because of the public interest that the truth should be out and the court aims to protect a human, responsible, truthful and trustworthy defendant.

46. These principles are also reiterated in Gatley on Libel and Slander 12th edition Swett and Maxwell at paragraph 25. 2 where the learned authors state as follows:-The jurisdiction to grant interim injunctions to restrain publication of defamatory statements is of a delicate nature which ought only be exercised in the clearest of cases…Thus the court will only grant an interim injunction where:-a.The statement is unarguably defamatory;b.There are no grounds for concluding the statement may be true;c.There is no other defence which might succeed;d.There is evidence of an intention to repeat or publish the defamatory statement.A prima facie case with a probability of success at trial

47. What then constitutes a prima facie case? In the case of Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125,“The principles which guide the court in deciding whether or not to grant an interlocutory injunction are, first, an applicant must show prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless an 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….A mere scintilla of evidence can never be enough; nor can any amount of worthless discredited evidence. It is true that the court is not required at that stage to decide finally whether the evidence is worthy of credit, or whether if believed it is weighty enough to prove the case conclusively: that final determination can only properly be made when the case for the defence has been heard. It may not be easy to define what is meant by “prima facie case” but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence…The terms “prima facie” case, and “genuine and arguable” case do not necessarily mean the same thing, for in using another term, namely a suitable cause of action, the words “prima facie” are frequently used to refer to a case which shifts the evidential burden of proof, rather than as giving rise to a legal burden of proof in the manner of considering, which was in relation to the pleadings that had been put forward in the case. It would be in the appellant’s interest to adopt a genuine and arguable case standard rather than one of prima facie case, the former being the lesser standard of the two…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 being 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.”

48. The applicant herein must demonstrate that she has an arguable case for the court to grant the orders sought. Further, the applicant requires to show that publishing of such defamatory matter will continue harming her reputation. The respondent’s have not denied the press briefing held by the 1st respondent. In fact the said briefing has been admitted as having taken place. The applicant in her supporting affidavit and annextures dated 2nd August 2024 has explained the allegations. The applicant has annexed the photographs of herself that accompanied the press briefing. Upon examining the press statement, it makes weighty and serious allegations against the applicant’s professional conduct as being corrupt, an extortionist and puts into question her integrity and ethics. It is important to note that at this interlocutory stage, this court is not required to make any definitive findings on the material placed before it. However, it is my considered view that the utterances in the press briefing are prima facie defamatory as it has portrayed the applicant as a corrupt public officer who extorts bribes and who has questionable integrity and lacks professional ethics in her work as a senior officer of the County.

49. The applicant has asserted that in holding the press briefing, the 1st respondent was actuated by malice. The 1st respondent has denied that allegation and maintains that the utterances made at the press briefing are true and that he was blowing the whistle on the applicant’s attempts to extort them of land for the applicant’s and the governor of Kiambu county own selfish gain to their detriment. The respondents maintain that the applicant abused her position and together with the governor of Kiambu county, to seize land from Tatu City for the construction of his private residence with no intention to pay the same. The respondents further argue that they are not liable in defamation since they held the press briefing in the public interest in exercise of their constitutional right to freedom of expression guaranteed under Article 33 of the Constitution.

50. It is my view that the matters touched on public interest on the aspect of exposing corruption. The right to freedom of expression pursuant to Article 33 of the Constitution is not an absolute right but is limited under Article 33(3) of the Constitution which provides in no uncertain terms that in the exercise of the right to freedom of expression, every person must respect the rights and reputation of others. The limitation under Article 33(3) of the Constitution means that in exercising his freedom of expression, the 1st respondent was enjoined to ensure that he made utterance that were true and did not vilify the applicant or violate his constitutional rights which includes the right to human dignity, privacy and reputation.

51. On perusal of the record, the respondents have not filed their statements of defence. However, from the replying affidavit it is clear that the respondents intend to raise the defences of justification and fair comment to the claim. These defences if pleaded are absolute defences to the claim of defamation and ought to be backed by evidence. In the case of Philomena Mbete Mwilu v Standard Group Limited [2018] eKLR the court held:-In most cases, these defences are proved or established by evidence tendered in the course of the main trial and for this reason, I wish to respectively disassociate myself with the holding of Khamoni J in the Micah Cheserem Case (supra) to the effect that where the defences of justification and fair comment are raised, the court should automatically refuse to grant an order of temporary injunction.In my considered view, the mere pleading of the aforesaid defences does not by itself mean that they will eventually carry the day after the suit is heard since as stated earlier, they must be established by way of evidence and the court may not know at an interlocutory stage whether the evidence will be available in the course of the trial or not.My view is that where such defences are pleaded at the interlocutory stage by way of affidavit before a defence is filed, the defendant should avail to the court some material on the basis of which the court can make a prima facie finding that the defences are likely to succeed at the main trial.

52. In the instant case, the respondents have availed correspondence between them and the county executive committee member which shows that one of the pending items following their meeting held on 9th December 2024 was the identification and allocation of 2 acres for the governor’s house. The respondents have further annexed correspondence to the National Director State Department for Lands & Physical Planning responding to the comments made by the County of Kiambu on the issues raised in the letter dated 16th April 2024. At this interlocutory stage, it is difficult for the court to make a determination as the respondents have produced correspondence backing their allegations. It is during the trial stage that more light will be shed through the evidence of the parties. Accordingly, it is my considered view that the applicant has established a prima facie case.

Irreparable Injury 53. In Paul Gitonga Wanjau v Gathuthi Tea Factory Company Ltd & 2 Others [2016]eKLR the court considered Halsbury’s Laws of England on what irreparable loss is and stated that:-“First, that the injury is irreparable and second, that it is continuous. By the term irreparable injury is meant injury which is substantial and could never be adequately remedied or atoned for by damages, not injury which cannot possibly be repaired and the fact that the plaintiff may have a right to recover damages is no objection to the exercise of the jurisdiction by injunction, if his rights cannot be adequately protected or vindicated by damages.”

54. The applicant has argued that due to the defamatory words from the respondents’ press briefing, which have circulated widely through various media houses and online platforms with a wide circulation and reports in newspapers publishing further defamatory reports, the reputation of the applicant which is already tainted, will continue to lose respect from her peers and be subjected to public ridicule and untold embarrassment.

55. In the case of Philomena Mbete Mwilu v Standard Group Limited [2018] eKLR the court held:-The defendant has advanced the view that in this case, even if the applicant was to succeed in her action, an award of damages would be an adequate remedy. However, I am alive to the fact that in some cases such as the instant one, once a person’s reputation is damaged or lost, no amount of damages can be sufficient to compensate the offended party for such a loss. I wholly concur with the view expressed by Mbogholi J in Ahmed Adan v Nation Media Group Limited & 2 Others [2016] eKLR that reputation like a name is priceless.

56. In the instant case, the applicant has demonstrated that her reputation is at stake due to the press briefing and that continuation by the respondent of assault on the applicant’s character will cause irreparable injury. It is my considered view that the applicant has shown that she will suffer irreparable injury not likely to be compensated by way of damages.

Balance of Convenience Test 57. In the case of Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] eKLR, the court in dealing with the issue on balance of convenience held as follows:-The meaning of balance of convenience in favour of the plaintiff is that if the injunction is not granted and the suit is ultimately decided in favour of the plaintiffs, the inconvenience to the plaintiff would be greater than that which would be caused to the defendants if an injunction is granted but the suit is ultimately dismissed. Although it is called balance of convenience it is really the balance of inconvenience and it is for the plaintiffs to show that the inconvenience caused to them would be greater than that which may be caused to the defendants. Should the inconvenience be equal, it is the plaintiffs who suffer? In other words, the plaintiffs have to show that the comparative mischief from the inconvenience which is likely to arise from withholding the inunction will be greater than which is likely to arise from granting it.

58. Having considered the foregoing decision and fact it is my considered view that the balance of convenience tilts in favour of the applicant because the inconvenience caused to her will be much greater than that caused to the respondents if the court, at the conclusion of this case finds that the utterances made at the press briefing were defamatory. As such, the balance of convenience tilts in favour of the applicant.

Conclusion 59. I thus find that the applicant herein has established a prima facie case to the standard required in defamation cases to warrant the court to exercise its discretion in her favour by granting an order of injunction. Accordingly, the application dated 2nd August 2024 is merited and is hereby allowed in terms of prayer (d) to the effect that orders for an injunction do issue against the defendant respondent pending hearing and determination of the suit.

60. The costs of this application shall abide in the suit.

61. It is hereby so ordered.

RULING DELIVERD VIRTUALLY, DATED AND SIGNED AT THIKA THIS 13TH DAY OF MARCH 2025. F. MUCHEMIJUDGE