Transcend Media Group v Standard Group Limited [2017] KEHC 1470 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYAAT NAIROBI

CIVIL SUIT NO. 64 OF 2016

TRANSCEND MEDIA GROUP............................PLAINTIFF/APPLICANT

VERSUS

THE STANDARD GROUP LIMITED...........DEFENDANT/RESPONDENT

RULING

The Plaintiff/Applicant filed a Notice of Motion  dated 7th March, 2016 under the provisions of Order 40 Rule 1 & 4 and Order 51 of the Civil Procedure Rules seeking orders that :-

(a)…spent

(b)…spent

(c) THAT this Court do issue an injunction restraining the Defendant whether by themselves , their servants and/or agents or otherwise from further publishing or causing to be published, words defamatory of the Plaintiff pending the hearing and determination of this suit.

(d) THAT the Defendant retracts the statement published about the Plaintiff in a defamatory article of 19th February, 2016 and render and publish an apology to the Plaintiff.

(e) THAT costs of this Application be in the cause.

The application is premised on the grounds on the face of the application and the Supporting Affidavit of PETER LAI MUTHOKA, a director of the Plaintiff who depones that on 19th February, 2016 an article was published in the Standard Newspaper that associated and linked the Plaintiff to the recent National Youth Services (NYS) scandal. It stated that the Plaintiff was one of the companies that benefited from questionable deals with the NYS scandal and the headline stated that the Plaintiff had been awarded Kshs. 326 Million for the rebranding of the NYS. The plaintiff states that he is aware of the scandals that have recently engulfed NYS with allegations of questionable contracts having been awarded to brief case companies. He avers that the allegations are defamatory and malicious and were never intended to reveal the correct position.

As a result of the publication, the Plaintiff claims that they received so many phone calls from friends and Clients and it was a particularly difficult time as they were then tendering new jobs with Safaricom, KRA and KWAL among others.

The claim was denied by the Respondent who filed a Replying Affidavit dated 10th May, 2017 and sworn by MILICENT NG’ETICH, the Head, Legal department of the Respondent. She avers that the orders sought are not necessary as the Defendant has not made any further publication since the suit was filed. She pleaded the defence of fair comment on a matter in the public interest and averred that the Defendant has the responsibility as a national media to publish information to the general public. She further depones that the words as published were true in substance and in fact and were made in good faith.

The application was canvassed by way of written submissions. The Applicants filed their submissions dated 1st August, 2017 and submitted that they have met the Giella versus Cassman Brown requirement for grant of the interlocutory injunction. The Applicants relied on the case of Gitao & Another V. Kenya National Chamber of Commerce & Industry Civil Case No. 1859 of 1990 amongst other authorities which I have considered. It is the Plaintiff’s submission that the words published by the defendant were not only a total false, unsubstantiated and malicious but the same were published to the public and the resultant effect was that it impacted negatively on the Plaintiff.

The Respondent filed its written submissions dated 4th September, 2017. On prima facie case, the Respondent submitted that the Appellant has admitted that there was a scandal in the award of tender by NYS and it appeared that several companies were incorporated to supply commodities at inflated prices, that the plaintiff admitted that it had been awarded the said tender to rebrand NYS and therefore there is no prima facie case established to warrant the injunctive orders sought. That there is no irreparable injury to be suffered by the Plaintiff and that the inconvenience that would be caused to the public and possibly to the nation outweighs the inconvenience alluded to by the Plaintiff as the matter concerns expenditure of public funds.

I have read and considered the application as well as the Affidavits on record. The general principles  and conditions  precedent  to the  granting of interlocutory injunctions  as established  in the Giella  v Cassman  Brown  have been modified   to suit the  uniqueness  defamation of claims.  Those principles, were settled   in the case of Cheserem vs Immediate Media Services (200) 2 EA 371 (CCK 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 as 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.”

Temporary injunction to prevent the publication of a defamatory statement can only be granted in the clearest cases. In fact courts have been hesitant to grant such orders where the defence of truth and fair comment has been pleaded. In Ruth Ruguru Nyagah v Kariuki Chege & another [2015] eKLRthe court held that , “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.”

What  the Applicants were expected to  prove at this initial stage, taking  into account  the principles and  conditions for grant of interlocutory  injunction in defamation cases is  whether they have a prima facie  case with  probability  of success and if the injunction is not  granted, that  they stand 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.

I have read the Newspaper article complained of. The article largely talks about the happenings at the NYS and mentioned the Plaintiff as one of the companies that benefited from the multimillion tenders without stating that the Plaintiff was awarded the tender improperly.  It is a matter of fact that there is investigation going on at the NYS on a scam involving the tendering process which fact the Plaintiff acknowledges. Therefore the Plaintiff allegation can only be substantiated and argued in a main suit. At this point the Plaintiff cannot be said to have established a prima facie case to the standards required in a defamation suit.

In the case of George Mukuru Muchai Vs The Standard Limited [2001] eKLR it was held that,

“In my view the most important ingredient in a defamation case is the effect of the spoken or written words in the mind of third parties about the complaint and not how he/she himself/herself feels the words portray about him/her.”

It matters not what the Plaintiff perceives the publication to be but what the members of the public perceive it to be. In other words the threshold for determining whether a publication is defamatory is in the reasonable members of the public to whom the estimation of the plaintiff must be lowered. The fourth order sought that the Defendant retracts the statement published about the Plaintiff in a defamatory article of 19th February, 2016 and render and publish an apology to the Plaintiff cannot be granted in the interlocutory stage as it would be tantamount to determining the main suit at interim stage.

The publication complained of was a matter of public interest and concern. The Appellant was mentioned among other entities which had been awarded tenders by the NYS without a specific publication that the Plaintiff company was a sham and corrupt. I am not satisfied that the Applicant has demonstrated a clear case to the standards required in a defamation  case to warrant the interim orders sought and for this reason I see no merit in the application . The upshot of this is that the application dated 7th March, 2016 is hereby dismissed with costs.

It is so ordered.

Dated, Signed and Delivered at Nairobi this 20th Day of December, 2017.

……………...

L. NJUGUNA

JUDGE

In the Presence of

…………………………. for the Plaintiff/Applicant

…………………………. for the Defendant/Respondent