[2017] KEHC 1241 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL CASE NO. 300 OF 2016

WEN JIE LI ..........................................................................PLAINTIFF

-V E R S U S –

MANAGING DIRECTOR,THE NAIROBIAN...............1ST DEFENDANT

STANDARD GROUP...................................................2ND DEFENDANT

RULING

1) Before this court are two applications which parties on 6th March 2017, agreed that be heard together and disposed of by way of written submissions. The applications arose from an action filed by Wen Jie Li the plaintiff herein, against the managing editor of the Nairobian and Standard Group Limited, the 1st and 2nd defendants respectively herein for defamation.

2) The first application in time is the one by Wen Jie Li the plaintiff/applicant herein, who filed a motion dated 15th November 2016 in which he sought for the following orders:

1. THAT this honourable court be pleased to certify this application urgent.

2. THAT the service of summons and the application herein be dispensed with owing to the urgency of the matter.

3. THAT this honourable court be pleased to restrain the 1st defendant whether by himself his servants, agents or otherwise howsoever and the 2nd defendant whether by its directors, servants or agents or otherwise howsoever from printing or publishing or causing to be printed or published or otherwise howsoever from posting on any electronic media or publishing or disseminating in any manner whatsoever the defamatory words, statements or content or any similar word or statements or content, or like effect relation to the plaintiff herein first published in the issue of 29th July – 4th August, 2016 of the Nairobian and secondly in the issue of 12th – 18th August, 2016 of the Nairobian until further orders of this honourable court.

4. THAT this honourable court be pleased to restrain the 1st defendant whether by himself his servants, agents or otherwise howsoever and the 2nd defendant whether by its directors, servants or agents or otherwise howsoever from printing or publishing or causing to be printed or published or otherwise howsoever from posting on any electronic media or publishing or disseminating in any manner whatsoever the defamatory words, statements or content or any similar word or statements or content, or like effect relation to the plaintiff herein first published in the issue of 29th July – 4th August 2016 of the Nairobian and secondly in the issue of 12th – 18th August 2016 of the Nairobian pending the hearing and determination of the suit.

5. THAT the defendants be restrained from discussing the Nairobian or the Daily Standard, or nay electronic media of the 2nd defendant, the respective merits of the cases of the parties in –

d.High Court Miscellaneous application No. 264 of 2015: Guo Dong v Multi Win East Africa Trading Company Ltd and 6 others.

e.High Court Petition 354 of 2016: Li Wen Jie and 2 others v Attorney General and Others.

f.this suitUntil further orders of this honourable court.

6. THAT the defendants be restrtained from discussing in the Nairobian or the Daily Standard, or any electronic media of the 2nd defendant, the respective merits of the cases of the parties in –

d.High Court Miscellaneous Application No. 264 of 2015: Guo dong v Multi Win East Africa Trading Company Ltd and 6 others

e.High Court Petition 354 of 2016: Li Wen Jie and 2 others v Attorney General and Others.

f.This suitPending the hearing and determination of this suit.

7. THAT the cost of this application be provided for.

3) The motion is supported by the affidavit of Wen Jie Li. When served the defendant’s/respondents 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. 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 same. I have also considered the applicant’s written submission. The respondent had not filed his submissions at the time of writing this ruling.

4) The applicant avers that he was defamed by two articles published by the defendants/respondents herein in their issue of the Nairobian of 29th July to 4th August 2016 and 12th – 18th August 2016. At the time of publishing those articles, the respondents were well aware of numerous suits some of which were pending before the court in which the applicant was involved. The applicant further avers that in publishing the said articles, the defendants were actuated with malice, extreme ill will and hatred and the same was deliberately and calculated and planned to injure the plaintiff in his personal image, professional reputation with a view of affecting their general honest standing in society. The respondents never published an apology or retracted the said defamatory articles from their websites despite the applicant sending them a demand letter dated 8th August 2016.

5) The applicant states that he believes that he has met the legal threshold of the requirements for the granting of interlocutory injunctions. The applicant believes that if the injunctions sought are not granted, the plaintiff will suffer irreparable injury of his reputation as a result of the continuous injury caused by the further commission of the libel against him.

6) The respondents opposed the applicants’ motion through their grounds of opposition. They stated that the applicant has not met the threshold for the grant of interlocutory injunction. Further as that they as a media entity have a societal obligation to accurately report court proceedings and the applicant motion seeks to unjustifiably and arbitrarily abridge their media freedom.

7) The principles to be considered in determining an application for an injunction were laid down in the case of Giella vs CassmanBrown & 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.

8) 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 (supra), 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.”

9) After considering the material placed before this court and the Plaintiff/applicant’s 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 did mention in their grounds of opposition that the threshold for grant of temporary injunctions had not been met by the applicant, further that they owe a duty to society to brief them on issues and they should enjoy media freedom. The plaintiff/applicant is apprehensive that unless an order is issued to restrain the defendants/respondents from further making those statements and utterances in their publications, they will repeat the words.

10) 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 professional reputation will seriously be damaged thus affecting his general honest standing in society. If the defendants/respondents continues with their injurious publication it will portray the plaintiff/applicant as a person unworthy of trust and respect. According to the plaintiff/applicant the injury cannot be compensated by an award of damages. In my view at this interlocutory stage, such publication cannot be justified until the suit is heard and determined.

11) 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.

12) In the end, the motion dated 15th November 2016 is allowed in Terms of prayers iii, iv ,v and vi. Costs of the motion to abide the outcome of the suit.

13) The 2nd application is the 2nd defendant’s/applicant’s notice of motion dated 29th November 2016 in which it sought for the following orders:

1. That for reasons to be recorded the present application be certified as urgent on account of the schedule application dated 15. 11. 2016 due for hearing on 30. 11. 2016 and directions with respect to the inter partes hearing of this application in priority be issued.

2. The plaintiff be ordered to deposit security for the 2nd defendant’s costs of this suit in the sum of kssh.2 million within 14 days in a joint interest earning account in the names of the advocates firms on record for the parties pending the hearing of the plaintiffs application dated 15. 11. 2016 and the substantive suit;

3. That in default of (1) above the plaint herein be struck out with costs to the defendants

4. The suit be stayed pending the deposit of such security as the court may order;

5. The costs of this application be borne by the plaintiff.

14) The motion is supported by the affidavit of Caroline Cheruiyot. When served, the plaintiff/respondent filed the replying affidavit of Wen Jie Li to resist the application. When the motion came up for interpartes hearing, learned counsels appearing in this matter recorded a consent order to have the motion disposed of by written submissions.

15) I have considered the grounds set out on the face of the motion plus the facts deponed in the affidavits filed in support and against the motion. I have considered the respondent submissions, the applicant had not filed his at the time of writing this ruling.

16) The 2nd defendant/applicant avers that the plaintiff/respondent is a Chinese National, residing and working for gain in China and has no known assets that he is aware of within the jurisdiction. The 2nd defendant/applicant further states that the plaintiff/respondent seeks interlocutory injunctive orders that effectively seek to abridge or limit the defendant freedom of media under the constitution, and that, if the 2nd defendant if successful in its defence ,he will be unable to recover the costs of litigation arising from having to defend this suit.

17) The plaintiff/respondent on the other hand avers that the defendant/applicant motion for security for costs is based on their own wrong, taking the form of publishing the defamatory article which led to his deportation from the county. The deportation, which he has challenged in this honourable court. That prima facie, the publication is defamatory of the plaintiff and this honourable court should protect his reputation which is being injured by the defendants herein. The applicants application is an abuse of the court process and is an oppressive means of stifling the plaintiff’s genuine claim against the defendants.

18) The plaintiff/respondent avers that he is a shareholder in a company known as Homeland Company Limited, which owns 10 acre parcels of land at Athi River, to which he has attached documents to demonstrate that fact. Finally that the 2nd defendants/applicant is shifting the burden of proof that if judgment is to be given against the plaintiff he will not be in a position to pay for costs of the suit.

19) Application for security for costs are covered under Order 26 of the Civil Procedure Rules, 2010.

The general rule is that security for costs is normally required from the plaintiff residing outside the jurisdiction, but the court has discretion. This discretion is to be exercised reasonably and judicially, to refuse or to order that security be given. This position was reiterated by the court of appeal in the case of Shah –vs- Shah(1982)KLR 95.

20) When the court is considering an application for security for costs and the factors to be considered when dealing with such applications, it is are guided by the principles laid down in the case of Saudi Arabian Airlines Corporation –vs- Sean Express Services Limited (2014)e KLRthat held inter alia that:-

“The law is settled that an order for security for costs is a discretionary one. The discretion is however to be exercised reasonably and judicially by taking absolute reference to the circumstances of each case. Such matters as absence of known assets within the jurisdiction of court; absence of an office within the jurisdiction of court; insolvency or inability to pay costs; the general financial standing of the plaintiff; the bonafides of the plaintiff’s claim; or any other relevant conduct or circumstances of the plaintiff or the defendant. The list is not exhaustive. Conduct of the plaintiff will include activities which may diminish the chances of or makes recovery of costs very difficult, for instance recent close or transfer of bank accounts ,close or minimizing of operations and disposal of assets. And the conduct of the defendant include; filing of application for security for costs as a way of oppressing or obstructing the plaintiff’s claim, for instance where the defence is a mere sham, or there is an admission by the plaintiff of money owing except, there is a deliberate refusal to perform its part of the bargain,”

21) The fact that the plaintiff is residing outside the jurisdiction of the court would not automatically lead a court into ordering a deposit for security for costs against the plaintiff. Order 26 Rule 3 of the Civil Procedure Rules 2010 states:-

“where it appears to the court that the substantial issue is which of two or more defendants is liable or what proportion of liability of two or more defendants should bear, no order for security for costs may be made,”

22) In light of the foregoing, I am convinced that the 2nd defendants/applicant has not met the thresh hold for grant of security for costs orders.

23) The plaintiff/respondent is a foreign national(Chinese),who before his deportation had been working for gain in Kenya for about 6 years. The plaintiff avers that he has known assets in Kenya and a shareholder in Homeland Company Limited, a company he has invested in, here in Kenya. Which assets can be attached in the event to secure costs of this suit when determined.

24) In the end, I find that this motion lacks merit and it is herby dismissed. Costs of the motion to abide the outcome of the suit.

Dated, Signed and Delivered in open court this 17th day of November 2017.

J. K. SERGON

JUDGE

In the presence of:

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

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