Samuel Ndungu Gitau v Standard Group Ltd & Kipkoech Tanui [2016] KEHC 3755 (KLR)

REPUBLIC OF KENYA

INTHE HIGH COURT OF KENYA AT NAKURU

CIVIL SUIT NUMBER 27 OF 2014

HON. SAMUEL NDUNGU GITAU........................................................PLAINTIFF

VERSUS

1.  THE STANDARD GROUP LTD...............1ST DEFENDANT/RESPONDENT

2.  KIPKOECH TANUI..................................2ND DEFENDANT/RESPONDENT

RULING

1. On the 20th  May 2014, this court (Honourable Justice Wendo,J) issued an order of temporary injunction restraining the Defendants/Respondents by themselves, agents and employees from publishing, uttering and or causing to be published  and or uttered defamatory materials  and or slanderous information  about  the  plaintiff/applicant  pending  hearing  and determination of the application  dated 12th   May 2014. That order is  in force todate.

The Plaintiff's/Applicants submissions by his advocate, Chege Munene seek that the interim orders of injunction be confirmed pending full hearing of the case.

The offending publications and subject of this case was so published in the first  Respondents  Newspaper, the Standard, on the 6th   May 2014 in the following manner;

1. Revealed, County Minister uttered fake  certificates to get job.”

2. “MP wants  officer  who used fake  papers to get job sacked.

3. "Officer who forged papers quizzed by Criminal Investigating Department.”

2. It  is  submitted  that  in  their  natural  meaning,  the  said  words  were defamatory of  the  applicant  who  is  currently  the  Executive Officer in charge of Trade, Tourism and industrialization in the county government of Nakuru and by their ordinary  meaning, are meant  and understood to mean that  the applicant  has committed a crime  and is  a criminal  who should be in jail, that he suffers from academic disability, is a con man and deceitful and therefore should not hold a public office.  It is urged that by their very nature, there is established a prima faciecase with  great chances of success as all the publications were false and were meant to deny the applicant the job that he sought with the County Government of Nakuru. Relying  on the case Giella ­vs­ Cassman  Brown.It  is  submitted that a prima faciewith probability of success is established.

It  is  further  submitted that the said publication if repeated would cause more injury to the applicant that may not be adequately compensated with an award of damages.

3. The respondents citing Article 34 of the Constitutionsubmit that freedom of communication by way print and all other forms is guaranteed under the Constitution  save the  limitations  stated in  Article 33(2)thereof.  It  is further submitted that if the applicant felt aggrieved, he would have provided proof of his academic certificates by disclosing all material facts to the court.

4. I fully agree with the above submission that the applicant ought to prove that the allegation leveled against him are false by providing all materials relevant to disapprove the allegations. But, that can only be done during the hearing of the case when evidence may be produced. In the meantime, and to safeguard further  character assassination,  that  in my mind  may cause damage not capable of compensation in monetary terms, the court finds  that  pending  full hearing  of  the  case, an order  of  injunction  is appropriate.

5. The respondent's  publication  of the alleged  defamatory article  may be a fair, just and accurate comment of events and of general public knowledge as it alleges,  but on the other hand, the said publication  too may have caused injury to the character of the applicant  and continuation of the same before determination  by  the  court  of  its  truth  may worsen the situation by causing more injury and prejudice.   To that extent, the court finds  that  the  balance of  convenience  tilts  in  favour  of  granting  the injunctive orders as sought by the applicant.   The court in coming to the above conclusion the court bears in mind the provisions of Section 6 of the Defamation Actwhich states­

“A fair and accurate report in any newspaper of proceedings  heard before any court  exercising judicial  authority within  Kenya shall  be absolutely privileged: provided that nothing in this Section shall authorise the publication of any blasphemous, seditious or incedent matter.”

6. This case is pending hearing by the court.  Until such time that the parties shall ventilate their accusations and justifications before the court, the respondents  are hereby barred and restrained  by an order of injunction from further  publication,  uttering and or causing to be published  of any defamatory and slanderous information of and concerning the applicant on the matters before the court pending the hearing and determination of the suit in terms of prayers sought in the applications dated the 12th  May 2014.

7. Costs of the application shall be costs in the cause.

Dated, signed and delivered in open court this 14th    day of July 2016

JANETMULWA

JUDGE