Ruth Ruguru Nyagah v Kariuki Chege & David H. Gray [2015] KEHC 3469 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL CASE NO.  73 OF 2015

RUTH RUGURU NYAGAH …………………..……………….PLAINTIFF

VERSUS

KARIUKI CHEGE………………………………….…..1ST DEFENDANT

DAVID H. GRAY ……….……………………………..2ND DEFENDANT

RULING

This  ruling  determines  the plaintiff’s application by way of Notice of Motion  dated  30th February 2015 wherein  she seeks  from this court orders that:

1. Spent

2. Spent

3.  This honourable court be pleased to restrain the 1st and 2nd  defendants, by themselves, or though  any of their servants, and argents  from  uttering  any defamatory  words, publishing  any defamatory  information, verbally  or in writing   to individuals, groups, body  or bodies, companies  or to any  other  institutions whether local or international, of or  concerning the plaintiff pending the  hearing  and determination of this suit;

4.  That costs of this application be provided  for.

The plaintiff first approached this court on 23rd February 2015 when the Honourable Mbogoli Msagha J granted an interim temporary order of injunction under certificate of urgency.  That interim order is still on record pending this ruling.

The applicant’s application is supported by  her supporting  affidavit sworn on            20th  February 2015  and her supplementary affidavit    sworn on 1st April 2015. The application is predicated on the  grounds that:-

The plaintiff is an international citizen advising  on Horticulture  in Tanzania  and Mauritius  and sitting in International Boards on certification based in Cologne, Germany and San Jose, Costa Rica;

That the plaintiff is  a past  Managing Director of Africert  Ltd, a company  where the 1st and  2nd  defendants sit  as board members  from which   the plaintiff honorably  resigned;

That  the 1st  and 2nd defendants  maliciously  thinks  the plaintiff  is in completion   with the  said Africert  Ltd  in offering  Consultancy  Services  and in a bid to spoil for  the plaintiff from getting  any jobs, the defendants  have been  publishing  defamatory  words of and concerning the  plaintiff  which words  have led  to such  international bodies sidelining  the plaintiff  in the award  of the said jobs;

That  the defendants  have vowed, or are intent on continuing  to issue   such false or defamatory information  about  the plaintiff unless  they are  restrained  from doing so;

That it is just and reasonable to grant the orders sought to preserve the plaintiff’s name and reputation.

In her supporting  affidavit, the  plaintiff deposes that she is  the founder member  and not executive  director  of Africert Ltd, a limited  liability  company engaged  in third  party certifications for  private  standards.  That she subsequently upon  formation  of the said  company, invited  the  defendants  herein Kariuki Chege  and David H. Gray to buy shares  therein  and they too became  directors .  That she was the company’s  Managing  Director until 2013  when she honorably  resigned to  pursue  her PhD studies  and also offer consultancy services in Horticulture, something  she could not do while serving as a Managing Director  in  the said Africert Company which company was approved  to offer  independent certification services  but not approved to offer consultancy  services  in the area that  they offer  certification.

That  upon resignation as Managing Director  she nonetheless  remained a non executive  director  and formed her own company Kencert  International Ltd  which company  is not engaged in similar services  but  in consultancy services  which she uses to  bid for  consultancy jobs.

The plaintiff  deposes  that upon her  resignation  she notified  her esteemed  partners  at Africert  of that decision and also  introduced  to them the new Chief Executive Officer and  contact  person but that that  notwithstanding, the defendants herein have maliciously published information  including adverts  in the newspapers  that she is no longer  their  contact  person of Africert  Ltd, meaning  that she  dishonestly still  offers  herself  as the contact  person  for the  Africert  Company.

That  in early 2014, USAID floated a  tender  through its  KAVES project which  required  consultancy and not certification  services  which rules  of accreditation  do not allow Africert  Ltd to  undertake  and she  bid for the said tender and was shortlisted  to be awarded  the tender  but the 2nd defendant  maliciously  wrote defamatory emails to  the said  USAID –KAVES project  with the result  that the plaintiff was  denied  the job.

In addition, the plaintiff deposed that  the defendants  have threatened  to  continue  publishing  defamatory materials about the plaintiff  and to spoil all her future  job prospects  where  she may take part.

The plaintiff further  deposes that the defendants  have reported  her to the  criminal investigation department  for  investigation  and were actively pressing  that she be charged  with a criminal  offence purportedly  for paying staff of  Africert Ltd un authorized salaries  which  salary increments according to her,  were provided for  in  annual company budgets  and the same approved  by the defendants herein in the monthly payroll  with either  defendant  being signatories to the decision thereof.

It is further contended that the  plaintiff  is a global citizen and one  of the few experts in International private standards  and a co-author  of various  publications  hence her name  and any information accompanying  the same  especially  in the Daily  Nation which through  its digital  edition has global distributions and  readership attracts  attention and any  defamatory   words published of and concerning about  the plaintiff  are bound to be read  worldwide  and  deny her job/consultancy opportunities being  an rare  expert  in that rare field.

The defendants filed grounds of opposition dated 9th March 2015 and a replying affidavit sworn by Kariuki Chege the 1st defendant on 7th April 2015.

The defendants  oppose the  plaintiff’s  application and contend in the Grounds of  Opposition that  the plaintiff’s application lacks merit, the publications complained  of are not  defamatory  as alleged and  that the plaintiff has not  established  a prima facie case.

Further, that the defendants will rely on the defence of justification and fair comment hence an injunction does not lie as a matter of law.  That the application seeks to invoke the court to be  involved  at the interlocutory  stage to analyze an consider  the merits of the claim and the likely results  of the substantive  suit which should be  reserved  for a full trial or hearing.  That the grant of  interlocutory  injunction  in terms of the prayers  sought  would amount  to violation  and restriction  of the defendant’s  freedom of expression entrenched  in the Constitution  and  a concurrent stifling  of the public  interest  in that freedom of expression.

That there  is no  demonstration of any real  or reasonable apprehension  or legitimate  threat  on intent to further  publish  any articles  relating to the plaintiff.  It is further contended that the alleged defamatory statements, should they be proved, can clearly be compensated by an award of damages as sought in the plaint.

Further, that the balance  of convenience  heavily  tilts  in favour of  the defendants and finally  that the  orders  sought  are incongruent and incompatible  with the prayers sought  in the plaint.

In the affidavit of Kariuki Chege the Chairman and non executive  Director  of Africert  Ltd  it is conceded  that the plaintiff was the CEO of the Africert  Ltd and a shareholder. She resigned as CEO from 31st December 2013 after giving 3 months written notice in early October 2013 but remain a shareholder and non executive Director. That  while serving  as CEO of the company, she incorporated  Kencert (K) Limited  on 28th July 2004  to be in  direct  competition with the Africert Company in the field  of Agribusiness  certification in  Kenya, which was  a clandestine  move  and that  upon her resignation as a CEO, she, without  approval  of the company  communicated  directly  to stakeholders  on her resignation  with a  request  that  they get  in touch with  her privately  and unilaterally designated  two contact  persons  at the company  as Ag CEO and a junior manager  without approval  of the company. It is deposed that such information, in accordance with the company policy, ought to be communicated by the chairman on behalf of the Company Board of Directors.

That  the company  found it necessary to issue a statement relating to the plaintiff’s  resignation and the conduct of further  business by existing and prospective  clients hence the notice  of 11th July 2014  in the Daily Nation was a general public notice  relating to the plaintiff’s  position.

It was also deposed that what was published was true in substance and no defamatory meaning can be construed from the publications.  Further, that the USAID –KAVES tender that was made by the plaintiff necessitated clarification by the company since she had listed in her documents, employees   of the company as being part of her team.

That  the defendants  were not  aware  that the plaintiff had been unsuccessful  in her  bid  but nonetheless their inquiry  did not  have any influence  in the  decision making process at the USAID.  That the defendants have not published and do not intend to publish any such defamatory statements as alleged.

The  defendants further  contended that they had  reported  financial  impropriety  to the CID  for investigations and therefore  any publications made are  not defamatory in any way  hence  the orders sought ate without merit  and if granted would  be in violation of the defendant’s constitutionally  guaranteed freedom of expression.

In her  supplementary affidavit  sworn on 18th April 2015  the plaintiff  denied that she  was  the Chief Executive  Officer of Africert  and that  Kencert  Ltd never  did any  work in competition with Africert  Ltd and  that it  would only work within  its  mandate  and rules of accreditation  as annexed to the supplementary affidavit.

The plaintiff  also contended  that the annexed rules  of the company  permitted the  Managing Director   to communicate  with stakeholders  on resignation and she would directly  communicate  with all stakeholders  on her resignation.  In addition, she maintained  that an officer  from USAID-KAVES personally called  and informed  her that  the contract  for which she  had been shortlisted  could not be awarded  to her because of correspondence  from the defendants.  She also annexed copy of a letter of appreciation for  working  for SAN- Sustainable  Agriculture  Networks  Board of  Directors  for her positive  contribution to their  mission  dated  30th October 2014.

The plaintiff further contended  that the defendants’  correspondence  concerning  her are not  sanctioned  by the company  and that  they are  defamatory  of her  and the emails they  disseminated  were send  to her  by those  recipients.

The parties respective advocates agreed to dispose of the application by way of written submissions which thy dutifully filed and exchanged.

On behalf  of the plaintiff, the  submissions  were filed on 29th April  2015  reiterating  the contents  of the application, the grounds  thereof, and  her depositions  in her two affidavits  in support  and supplementary, and which I need not  replicate  herein as I have reproduced  them verbatim .

In addition, the plaintiff emphasized in her submissions  that the  publication  by the  defendants  through emails to her prospective employers and the public at large are defamatory  of her in that they  are understood  to mean that she is  masquerading  as the CEO of the  Africert  Company  and that she embezzled  the company money  which information  made her  to be shunned  by USAID.

In her  view, the plaintiff has met the conditions for  grant of  an interlocutory  temporary injunction  as enshrined  in the case of  Giella vs Cassman Brown Co. Ltd (1973) EA 358 and that the injunction  in defamation cases  is more special  than any other.

On whether  she has established  a prima facie  case with a  probability of success, the plaintiff  submitted that the defendants  had told  the whole world  through newspaper a advertisement  that she  would  try to transact  business on behalf of Africert Ltd even after  resigning  which is the same  as telling   the world to shun her as  evidenced  from the loss  of the tender she bid  with USAID/KAVES project.  She also submitted  that the defendants’  freedom of expression  is not absolute  and should  not  infringe  upon  her rights  and reputation as provided  in Article  33(3)  of  the Constitution.

The plaintiff avers that she has a right to work both locally and internationally too but the so called right to freedom of repression by the defendants should never be allowed to injure her reputation.  The plaintiff  further  submitted  that damages  would not  be an adequate  remedy  since she  bid for   international jobs  and is constantly moving  from county to county offering her services  at the invitation of various  bodies  and as a co-author  of various  materials  that are internationally read and that  not only does she  get  rewards  but recognition as an authority  or expert  in her field  hence damages will not be an  adequate  remedy.

As to in whose favour  the balance of convenience  tilts, the plaintiff  submitted that  if the injunction is not issued  she stands to suffer  irreparably than if the defendants  are restrained from uttering  their defamatory  statements since there is no corresponding duty from the public  to receive  misleading  statements  from  the defendants  about  the plaintiff.  She also submits that the failure  by the  2nd defendant to  oppose the  application is an indication  that her  averments are true  and that the  1st defendant’s purported  authority to swear  an affidavit  on  behalf  of the 2nd defendant  flies in the face  of  Order  1 Rule 13(1)  and (2)  of the Civil Procedure Rules  as  such  authority  must be  in writing  and signed  by the party  giving it  and shall be filed in the case.   In this case, it was submitted that no such authority was filed. The plaintiff therefore prayed that this court grants her the orders as prayed.

In their  opposing  submissions,  the defendants  relied  on  their grounds  of opposition  and replying  affidavit  by Kariuki Chege.

The defendants submitted that  the  applicant  had not  fulfilled  the 3 conditions  for granting  of interlocutory injunctions  as was clearly  spelled out in  the case of  Giella vs Cassman Brown  (supra). The defendants proposed to address 3 issues:

a) Whether  the plaintiff has a right to be  granted an interlocutory injunction;

b) Whether grant thereof  would  amount to an egregious/violation  of the defendant’s freedom of expression;  and

c) Whether the plaintiff stands to suffer irreparable harm unless the orders sought in the application are granted.

On the first issue, the defendants submitted that the plaintiff’s application  does not  meet the threshold for grant  of interlocutory injunctions  in defamation cases, relying on the decision of Cheserem vs Immediate  Media  Services  (200) 2 EA 371 (CCK)that:

“Application 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 is 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, in defamation cases  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  care 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 out and the court aims  to  protect  a  humane, responsible, truthful and trustworthy  defendant.”

The defendants submitted that the above position is reiterated in Gatley on Libel and  Slander, 12 Edition,  Sweet  and Maxwell at  paragraph 24. 2 that:

The jurisdiction to grant interim   injunction to restrain publication of defamatory statements is “of  a delicate nature” which ought   only to  be exercised  in the clearest cases”…….”Thus  the court will only grant an interim  injunction where:

The statement is unarguably defamatory;

There  are no good grounds for concluding  the statement  may be true;

There is no other defence which might succeed;

There is evidence of an intention to repeat or publish the defamatory statement.

Applying the above  principles , the  defendants  argued  that it is  an undisputed fact that  the plaintiff resigned  and that the  notice in the newspaper advert just  stated that  truth adding  that she  was not authorized  to transact  any business  on behalf  of the company which  cannot  be construed  to be defamatory  of her  and that as the  said words as published  on  11th July 2014 in the Daily Nation Newspaper  were true.

The defendants   also relied  on Gilgil Hills  Academy Ltd vs The Standard Ltd         ( 2000) e KLR Maraga J ( as he then was ) stated:

“To justify the granting of an injunction in defamatory cases at interlocutory stage therefore, the court must have prima facie  evidence  to come to   a decision that  the two words  complained  of are untrue.  See Bonnard v Perryman,(1891).  If , on the material  placed before  the court at  the interlocutory stage, it entertains  any doubt  on the efficacy  of that  defence, then that  should be one  of the factors  to be considered  whether  or not  an injunction should be granted.  The defendants  maintain that  they have  not published  and neither  do they  intend  to publish any defamatory  words concerning  the plaintiff hence  an injunction  against  them would  not lie.”

In addition, it was submitted by the defendants that  it is not  sufficient  to merely  establish  that the words complained of  are capable  of being defamatory, rather  the court must be satisfied  that in the final determination of the  suit it  would  inevitably  come to the conclusion   that the  words were  defamatory. It was further submitted  on behalf  of the defendants  relying on the  case of  Harakas & others  v Baltic  Mercantile  & shipping Exchange Ltd and Another (1982) 2 All ER 701where  Lord Denning held;

“  where there  was a defence  of justification or qualified  privilege in respect  of a libel, an injunction restraining  further  publication would not  be granted  unless it would be  shown that the defendant  dishonestly  and maliciously  proposed  to say or  publish information which he  knew to be  untrue.”

In the defendants’ view no prima facie case has been established for the grant of an injunction.

On whether the  grant of  an injunction would infringe the defendants’ freedom of expression the defendants relied on the  constitutional provisions  of Article 33 of  the Constitution and urged this court  to balance the interest  of the public  with respect to information concerning  the manner  in which  its affairs  are being administered with the right to protect  the dignity  and reputation  of individuals  as was set  out in the case of Bonnard  & another  v Perryman (1891-4) All ER 965-968 that:

……..(1) it is  obvious  that the subject  matter of an action for defamation  is no special as to require exceptional caution  in exercising the jurisdiction to interfere  by an injunction before the trial  of an action to prevent an anticipated  wrong.  The right  of free speech is  on which  is for the public interest  that individuals  should possess, and indeed, that they should exercise  it without  impediment, so long as no  wrongful  act is done, and  unless  an alleged libel is untrue, there is  no wrong committed; but, on the contrary , often a very wholesome  at is performed  in the publication and repetition of an  alleged  libel.  Until it is clear  that an  alleged  libel is untrue, it is not  clear  that any rights  of all have been  infringed; and the importance  of leaving  free speech  unfettered is a strong  reasons in cases of  libel for dealing most cautiously  and warily  with the  granting of interim injunctions.”

The defendants also relied  on the case of  Media Council of Kenya vs Eric  Orina (2013) e KLR Onyancha J applied the reasoning  in Bonnard & another v Perryman when he held:

“ The reasons for the court to deal with the issue of granting an injunction to restrain the publication  of a defamatory  material at this stage  where the case  has not been heard  or evidence in the case known , can  be picked  from the above  very old case they include:

a) That free speech should not without strict proof of its violating individual wrong, be fettered.

b) That the right to free speech is  on which is for the public interest   and therefore  one  which individuals should Have  and should exercise without  impediments, even if such impediment is by means  of court  injunction at the interim stage.

c) That  even where  there is clear  evidence that  publication or repeated  publication of a libel is likely to cause  injury to an individual, protection of the  right to free speech would force  the court  to deny restraint thereof even at the  risk of such injury occurring in  anticipation that the individual injury, will be compensated  by ordinary damages or even aggravated  damages.

d) That otherwise the publication of the injurious material will be justified because it may be true and should be published in public interest or as fair comment.

In the defendants’ view, the plaintiff has not demonstrated any reasonable  apprehension or legitimate  threat or intent  on the part of the defendants  to publish  any defamatory  articles  relating to the plaintiff and  that  there is  no evidence that  the defendants have  threatened to publishing, or uttering defamatory material  about  her or  threatened her future  employment  prospects hence the  court  cannot grant  an injunction where there  is no evidence  and no reasonable  grounds  to infer  that the defendants  threaten or  intends  to  publish  words which  are   untrue, and that  to do so would be  inhibiting the defendant’s constitutional right  to free speech.  They defendants  also relied  on the case  of Fraser vs  Evans  & Another (1969) 1 All ER 8  at page  12 where  Lord Denning  stated:-

“It all comes back to this: there  are some  things which are of such public  concern  that newspapers, the press, and  indeed  everyone  is entitled to make known  the  truth  and make  fair comment  on it. This is an integral part of the right to free speech and expression.  It must not be whittled away.  The Sunday Times assert that in this case there is a matter of public concern.  They admit that they are going to injure  the plaintiff’s  reputation, but they say  that they  can justify it; that  they are only making  fair comment on a matter  of public interest ; and therefore, that they  ought not  to be restrained.  We cannot prejudge this defence by granting an injunction them.  I think that the injunction which has been granted should be removed.  The Sunday times should be allowed to publish the article at their risk.  If they are guilty if libel or breach of confidence, or breach of copyright, that can be determined by an action hereafter and damages awarded against them.  But  we should not grant  an  interim injunction in advance  of an  article  when we  do not  know in the  least what it  will contain.”

In the defendant’s considered view an injunction will not  only infringe on their  constitutional  rights of  freedom  of expression but   also  stifle  the public  interest  in that freedom of expression.

On whether  the plaintiff  stands  to suffer  an irreparable  harm  if the  injunction is not granted, the defendants  submitted that in this case an award of damages  would adequately compensate  the plaintiff  were the application to be refused  and  the defendants   to be allowed to continues  uttering  or publishing any words  regarding  the plaintiff.  The defendants  relied on  the decision on Andrew Oloo Otieno  v Benjamin Shamala Imbogo (2008)  e KLR  where the court  refused to  grant an application for an order of temporary injunction where the plaintiff failed to demonstrate  that  he stood to suffer irreparable  loss  unless the order sought was  granted stating:-

“ if  the court has  to weigh the  defendant’s  constitutional right   of self  expression against the plaintiff’s right to protection of his good reputation, the court willfavour  the constitutional  right because  appropriate  damages  will be  available  to the plaintiff.”

In the defendants’ conviction, it  would be easy  to quantify any consequential loss  and harm  that would  arise from  the alleged defamatory  words as the principles  for the award  of damages  in defamation cases have been clearly  laid down in Kenya. The defendants therefore concluded that as no irreparable harm would be suffered by the plaintiff in the circumstances of this case, an injunction should be refused with costs.

Having set  out the background  to this  matter  and the parties’ respective  positions  and decided cases which  I have all considered  in detail, I  now set out  to indentify  issues for  determination. But  before I frame  those  issues, it is worth noting that   both parties  to this dispute  tended to  argue out the entire  case in their  detailed pleadings and submissions. However, the principle of law is that at an interlocutory stage, a court is not to make any definite findings as to do so will prejudice the entire case, parties positions   and even embarrass the trial court.

This case is a clear one that the plaintiff Ruth Ruguru Nyagah is seeking for a temporary   injunction  against the   defendants, to restrain them from publishing  or uttering any  libelous  matter  of  and concerning the plaintiff  which in her  view will  be injurious  to her profession and  reputation.

What  the plaintiff is expected to  prove at this initial stage, taking  into account  the principles and  conditions for grant of interlocutory  injunction in defamation cases is  whether she  has a prima facie  case with  probability  of success and if the injunction is not  granted, whether  she stands to suffer  irreparable  loss and  if the court is  in doubt  the matter will be decided on a balance of convenience as espoused  in the case of Giella vs Cassman  Brown & Co. Ltd (1973) 358.

The  impugned publications which the  plaintiff alleges  are defamatory  of  her are  contained  in the Daily  Nation July 11th 2014  showing that Africert had issued  a Notice to its partners, clients and the general public that the  plaintiff, with her identification  and photograph  was no longer the CEO  of Africert  Ltd with effect from 1st January 2014 and that  she was not authorized to transact  any business on behalf  of that company, notwithstanding the fact that she remained a shareholder and a non-executive director of the company.

The publication  also directed  all communication and or inquiries relating to  Africert  Ltd to be directed  to the CEO Susan M. Wambugu  or through  the  email provided  or dropping zone  as provided.

The plaintiff also complains that  beside that advertisement, the  defendants  had in their emails of 17th October 2014  at 2. 05 pm written to Africert  staff of and concerning the plaintiff  to the effect  that the  plaintiff  had embezzled  funds  of the company according  to the DAKKS audit assessment  which had shown  that the Managing Director of Africert Company Ltd who is the plaintiff herein had committed  serious  financial mismanagement  of the company  in the period  leading to her voluntary  departure  after setting up a parallel company.

Another  email published on 9th July 2014  to internal staff also  communicated  what the 2nd  defendant had done – written  to USAID/FINTRAC  after  learning that  the plaintiff had put  in bids  for the KAVES project  and been  shortlisted.  The third email was  a letter  written to KAVES notifying them  that the plaintiff  was still a director  of the  Africert  Ltd  yet she had  been shortlisted  for the  consultancy  and that she had listed  a number of Africert  employees  as her  support team which  would pose  a serious  conflict of interest; and her  direct  involvement  in competition with  a company  of  which  she is a director  and founder  is contrary to the undertakings  as a Director   of Africert Ltd.  That particular letter asked the USAID/KAVES to investigate and explain.

Then  there is  the allegation that  the defendants  had reported  the  plaintiff  to the CID  for investigations into financial mismanagement  of the company  wherein  she was alleged  to have increased  staff salaries, among  other  misfeasance, without approval  from the Board  of Directors, according  to the audit report  done by DAKKS.   According to the plaintiff, the  above publication and emails were false and put  her in bad light and  professional standing with USAID/KAVES who declined to award  her the consultancy  job for  which she  is highly  qualified   and that being an  international  and a global  organizations  member, and  co-auditor  of several publications, her reputation  and standing is  lowered  and she is unlikely to get  any work  with any prospective  employer.

The defendants on the other hand  do not  deny the  publications and  aver that  those publications are  true in substance  and justified, fair  comment made in the public interest  and or qualified  privilege   which have  no defamatory  connotations  and that they  will adduce  evidence  to prove their defenses  of truth, justifications, fair   comment and public  interest.  They also contended that to grant an injunction will inhibit their constitutionally guaranteed freedom of expression and against the public interest.

In addition, the defendants  seriously  contended  that in defamation  claims, courts  have over time  been reluctant  and will normally  not grant interlocutory  injunctions even if the  published  matter is defamatory, to  allow free speech, since an award  of damages  would be  sufficient  even if  the publications are  found, at the end of it all, to be  defamatory.

The defendants also contend  that the  plaintiff has not satisfied   the conditions for the granting  of interlocutory injunctions as was settled  in the Giella vs  Cassman  Brown  Co. Ltd  case(supra) and more so, the conditions   for grant of interlocutory injunctions  in  defamation  cases as  has been  in a number of cited cases both from this  jurisdiction  and elsewhere.

Therefore, from the above  exposition, I would draw 2 issues  for determination, flowing from the Giella vs Cassman  Brown  case on  principles  for granting  of interlocutory  injunction and conditions  espoused  in the  Cheserem v Immediate  Media Services  (supra) citing  Bonnard  and Another v Pennyman (supra) for grant of Interlocutory temporary  injunctions  in defamation  cases.

The issues are:

whether the plaintiff/applicant on the facts before this court and in the circumstances of this case, deserves the orders sought against the defendants;

What orders should this court make?

On issue No. i above, This court  has, in dealing with injunctions in defamation cases  to weigh  between the freedom  of expression as espoused  in Article  33  of the Constitution  which is  intended  to impart information to the public against  the respect of  other rights  and especially  the right  to the protection and respect of one’s reputation and the inherent  dignity  and to have that  dignity  respected  and protected   as espoused  in  Article  28 of the Constitution.

In other words, the general principles  and conditions  precedent  to the  grant of interlocutory injunctions  as established  in the Giella  v Cassman  Brown  have been modified   to suit the  uniqueness  of defamation of claims.  Those principles, as correctly submitted by counsel for the defendants were settled   in the case of Cheserem vs Intermediate Media Services (supra) among others  that:

“An interlocutory injunction is temporary and only subsists until the determination of the main suit.  In defamation, the  question of injunction is treated  in a  special way although  the conditions  applicable  in granting  an injunction as  set out  in the Giella v Cassman  Brown & Co Ltd (1973) EA 358  generally apply… In defamation cases, those  principles  apply together   with special  law relating   to the grant of  injunctions in defamation  cases  where  the court’s  jurisdiction  to grant   an injunction is exercised  with the greatest caution so that  an injunction is granted  only in clearest  possible  cases.  The court  must be satisfied that the words  complained  of are  libelous  and that  the words  are so manifestly defamatory  that any verdict to the contrary would  be set aside perverse…….The reason  for so treating  grant of  injunction in defamation cases is that  the action  for defamation  bring out conflict  between  private interests and public  interest, more so  in cases where  the  country’s constitution  has provisions  to protect  fundamental rights  and freedoms  of the  individual, including the protection of the freedom of expression.”

This court has meticulously examined the pleadings by the plaintiff and the responses by the defendants.  The defendants timeously filed defence   to the primary suit   admitting the publication but settling for the defenses   of truth, justification, fair comment and public interest, beside qualified privilege.

However, a careful examination of the impugned publications reveals the following trite facts:

The Daily nation publication was done by Africert Ltd and not any of the defendants that have been sued.

In all the emails whether written to the internal staff or USAID /KAVES project, the author is clearly stated as DHG ostensibly the second defendant, Mr David H. Gray, and he has not denied that fact.

I have not come across any email written by Mr Kariuki Chege of and concerning the plaintiff, albeit he swore an elaborate affidavit of justification.

Apart  from the email  by the  2nd defendant  to USAID/KAVES  project, the rest  of the emails  were internal memos  and there  is no evidence (prima facie ) that  they were  copied to any other  person other than staff, in as much  as the plaintiff secured  a copy  forwarded to him by an undisclosed person.

Albeit it is contended  that the  plaintiff lost a consultancy contract with the UDAID/KAVES project  because of the  correspondence  from the defendants, there is  no evidence that  the 2nd defendant   was  writing that letter  in concert  with the 1st defendant  or on behalf of the 1st defendant  who is  the Director-Chairman of  Africert Ltd, a limited liability  company.

The 2nd  Defendant  has not filed  any replying   affidavit  rebutting  the averments  in the plaintiff’s  supporting  affidavit and as was  correctly submitted by the plaintiff, the  1st defendant  cannot purport  to swear an affidavit  with authority  of the 2nd defendant  who has not  given that authority  in writing   and  which authority  must be filed as required  under Order  1 Rule 13(1) and (2)  of the Civil Procedure   Rules and  as espoused   in Crown Berger Ltd v Kalpech Vasuder Devan & Another  CA 246/2006.  In the absence of the replying affidavit rebutting the averments   in the applicants’ supporting affidavit, the 2nd defendant has not controverted the plaintiff/applicant’s claim and allegations against him.

Based on the above observations, I find as follows:

That no prima facie  case with  a probability of success has been  established  that the publication  of July 11th 2014  was done by the two  defendants  as the caption is clear that it was done by Africert Ltd who  are not  parties to this suit.  Furthermore  a limited liability  company  is an artificial  person incorporated  and it is  a legal person or entity  separate  from its owners or directors  unless the corporate  veil is lifted  as  was espoused  in the case of Salomon v Salomon(1897) AC 22. Where  it is clear that  the publication  was done  by the company in its  corporate name, then individual directors  cannot be held to be the ones  personally responsible  for the publication  prima facie, even if they  did so without the authority of the company  since the  company  has the capacity  to sue and be sued in its own  corporate name.

That there is no prima facie  case  established  with a probability  of  success  against  the  1st  defendant since  there is nothing  exhibited to show that  he authored  or directed  the writing  or uttering   of any of  the impugned publications or emails  purporting  to defame  the plaintiff.  The only emails written  by Mr Chege  are the ones  dated 9th January 2014  and 30th June 2014 which do not reveal  any semblance  of defamatory matter of  and concerning  the plaintiff.

That the email of 9th July 2014   which was  addressed  to internal staff of Africert Ltd, in my mind view   is qualified  privileged  communication, unlike  the emails  of  18th June 2014  to USAID/KAVES – Subcontracts@ fintrac.com  which was written  by the 2nd defendant  David H. Gray asking KAVES to  investigate  and explain  the issue of  conflict of interest  involving the applicant’s bids for the consultancy contract.

That there is no evidence  that the  email of 18th June 2014  was official communication from Africert  Ltd Company  for which  the plaintiff is a co-director, was authorized by the Board  of Directors  to the 2nd  defendant  to write  to USAID/KAVES project. The said email was therefore written by the 2nd defendant in his personal and individual capacity.

The 2nd  defendant, as  I have stated, did  not swear  any affidavit  to rebut  the allegation  that the  said letter to KAVES  was defamatory and malicious and was intended  to injure  the  reputation of the plaintiff  and that  as a result, she lost that KAVES  tender  for which she  had been shortlisted  and that an official  at KAVES  called her  personally and notified   her of the reasons  for her not being successful  was due to  that correspondence.  As to whether the content of that letter /email are true or not is a matter to be determined at the trial.  However,  prima facie, this  court finds that  the allegations  of conflict of interest  are serious  allegations which if  proven  to be true, against the plaintiff, have  dire consequences  and would damage  the  reputation of the plaintiff.

I therefore  find that  the plaintiff/applicant has made  out a  prima facie  case  with  a probability  of success  as against the  2nd defendant David H. Gray. I also find that email of 18th June 2014   to be manifestly libelous- (See Gatley on libel). No good grounds have been provided by the 2nd defendant to enable this court concludes that that statement of conflict of interest may be true.  There is in my view no other defence which might succeed on that aspect and there is so far no suit pending against the applicant by the Africert Company or any other person seeking to bar her from engaging in what is perceived to be unfair competition with Africert. There is also no counterclaim in this case against her and neither has Africert as a company sought to be enjoined to the proceedings to protect its interests against any perceived infringement by the plaintiff/applicant.

As to whether the plaintiff  would suffer  irreparable  loss if  an injunction is not granted  at this stage, as  against  the 2nd defendant, the plaintiff  avers that  the publication targeted  at  her prospective  employers  will destroy her reputation and  career.  On the other hand and as I have stated there is no rebuttal if this averment by the 2nd defendant.

I am  therefore inclined to find for the plaintiff  that  such publication targeted  at her prospective  employers  thereby  denying her employment  opportunities  would  ruin her livelihood and no amount  of damages  can adequately  compensate  a person’s lost career  opportunities .

The publication as impugned, prima facie discloses that the plaintiff is engaging in competition with her former employer Africert.  There is  in law an available  remedy  fair unfair competition which the Africert Company, as a limited liability  company can seek and obtain, but not the 2nd  defendant to snoop  around or  to eavesdrop on the  plaintiff, trying to find out which lucrative employment or consultancy that she might secure and warn them of possible conflict of interest.  That act or actions by the 2nd defendant, in the absence of any evidence to the contrary, can be construed to mean vilification of others.

The freedom of expression must be balanced against the other party’s right to work and eke a decent living.  In my view, there will be more  irreparable  lose  to the  plaintiff than  to any public  if the 2nd  defendant, his agents or servants are  not tamed by a restraining  order from  uttering /disseminating  such publications of and concerning  the plaintiff.  On the other hand, I do not phantom any injury  that the public  is likely to suffer should  the 2nd defendant be restrained  from disseminating  similar  information  to the public  concerning the plaintiff.  In other words, the balance of convenience tilts in favour of the plaintiff.

In my view, prima facie there are  special  circumstances  in this case  that warrant  a temporary  injunction  to issue, restraining  the 2nd  defendant, David  H. Gray  his agents, servants or proxies from publishing  any  defamatory information  verbally  or in writing  to individuals, groups, bodies, companies or to any other institution  whether local or international  of or concerning the plaintiff, pending  the hearing  and determination of this suit and I so order.

There is, however no prima facie case established against the 1st defendant and I dismiss the application as against the 1st defendant Kariuki Chege.

Costs of the application shall abide the outcome of the main suit.

I further order, pursuant  to Order 40 Rule  2(2)  of Civil Procedure Rules, and in order not to let the plaintiff get the temporary order herein and develop an inertia,  that the plaintiff do set  in motion the process of  readying this  suit  for  hearing  and determination within a period  of a 9 months  from the date  hereof   failure  to which the  temporary  injunction  granted herein against  the 2nd defendant  shall lapse  unless otherwise  ordered  by the court.

Dated, signed and delivered in open court at Nairobi this 8th day of July 2015.

R.E. ABURIRLI

JUDGE

8. 7.2015

Coram R.E. Aburili J

C.C. Samuel

Present:

Mr Nyangau Advocate for plaintiff /applicant

Mr Adogo for defendant/respondent

Court-   Ruling read and pronounced in open court as scheduled in the presence of all the parties’ advocates.

R.E. ABURILI

JUDGE

8/7/2015