1. Before Court for determination is the Plaintiff's/Applicant’s Notice of Motion dated 12th November 2025, which is expressed to be brought under the provisions of Order 40 Rules 2, 3, 4 and 5 of the Civil Procedure Rules and sections 1A, 1B and 3A of the Civil Procedure Act. The Applicant is seeking for the following orders:
i) SPENT
ii) THAT pending the hearing and determination of the instant application, the Defendant by himself or through his agents/servants be restrained from posting any Articles in any social media platform or any other form of media regarding any of the issues pending before court and more specifically the Defendant’s claim for a refund of Kenya Shillings Twenty Two Million Four Hundred Thousand only (Kshs.22,400,000) being alleged legal fees paid to the plaintiff.
iii) THAT pending the hearing and determination of the instant suit, the defendant by himself or through his agents/servants be restrained from posting any Articles in any social media platform or any other form of media regarding any of the issues pending before court and more specifically the Defendant’s claim for a refund of Kenya Shillings Twenty Two Million Four Hundred Thousand only (Ksh.22,4000,000) being alleged legal fees paid to the plaintiff.
iv) THAT costs of this application be provided for.
2. The application is anchored on the Plaintiff's supporting affidavit sworn on 12th November 2025. He deposes that the suit was then fixed for hearing on 21st January 2026 and that the Defendant's counterclaim seeks recovery of Kshs.22,400,000. He complains that, beginning on 8th October 2025, articles and comments appeared on social-media accounts associated with persons described as 'Mzalendo Blogger', 'Solo Mzalendo' and 'Maverick Aoko'. According to the Plaintiff, those publications discussed the dispute, stated or implied that he ought to refund the money, and included threatening or intemperate comments. He contends that the Defendant caused the publications through agents or servants and that continued discussion of the merits offends the sub judice rule and undermines the authority of the Court.
3. On 12th November 2025 the Court granted prayer 2 of the motion on an interim basis and directed service. The affidavit of service and the exhibited email show that the order and application were transmitted to the Defendant's advocates on 13th November 2025. The Defendant subsequently filed a replying affidavit. He denies authoring, publishing, sharing, procuring or causing any of the impugned posts. He further denies knowing or having any relationship with the persons or accounts identified by the Plaintiff. His position is that the alleged link is speculative and that the order sought would unfairly restrain him in respect of publications by independent third parties over whom he has no control.
The parties' submissions
4. For the Plaintiff, it is maintained that the order of 12th November 2025 was clear, that the Defendant had notice of it through his advocates and that publications touching on the dispute continued thereafter. The Plaintiff asks the Court to infer the Defendant's involvement from the subject matter of the posts, the alleged motive to publicize the claim for refund, and the use of accounts which, according to him, were not operated by the persons whose names they bore. He urges that restraint is necessary to preserve the dignity of the Court and the fair administration of justice.
5. The Defendant submits that the Plaintiff has not produced evidence connecting him to any of the named bloggers or accounts. He relies on the principles governing interlocutory injunctions in Giella v Cassman Brown & Co Ltd [1973] EA 358, Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR) and Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] KECA 606 (KLR). He further argues that a restraint upon speech, particularly in a dispute touching on alleged defamation, calls for exceptional caution; that the publications were made by persons who are not parties to the suit; and that the Plaintiff has shown neither a prima facie case against him in respect of those publications nor irreparable injury attributable to him.
Analysis and determination
6. I have considered the motion, the affidavit evidence, the annexures, the written submissions and the authorities cited. In my view, two issues arise for determination: first, whether the Plaintiff has satisfied the threshold for an interlocutory injunction against the Defendant; and secondly, what orders should issue as to the interim restraint and costs.
7. The jurisdiction under Order 40 is discretionary and must be exercised judicially. The familiar principles in Giella v Cassman Brown & Co Ltd [1973] EA 358 remain that an applicant must establish a prima facie case with a probability of success; demonstrate that in the absence of an injunction, he stands to suffer injury which would not adequately be compensated by damages; and, where the Court remains in doubt, show that the balance of convenience lies in his favour.
8. The Court of Appeal in Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] KECA 606 (KLR) emphasized that the three conditions are separate and sequential hurdles. The applicant must first surmount the prima facie case threshold. If he does not, the Court need not proceed to consider irreparable injury or balance of convenience. A prima facie case, as explained in Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR), is not merely an arguable case. On the material before the Court, there must be an apparent right which has been infringed by the person against whom relief is sought, calling for an explanation or rebuttal.
9. The right asserted by the Plaintiff is intelligible. A litigant is entitled to have a pending dispute adjudicated in court without threats, intimidation or conduct presenting a real risk of prejudice to the administration of justice. Equally, the authority of the Court must be protected. Those propositions, however, do not relieve an applicant of the burden imposed by sections 107, 108 and 109 of the Evidence Act. The Plaintiff must place before the Court material capable, at least prima facie, of connecting the Defendant to the acts sought to be restrained.
10. The impugned publications exhibited by the Plaintiff are attributed on their face of it to social-media accounts bearing names other than that of the Defendant. None is shown to have originated from an account owned or controlled by the Defendant. There is no affidavit from any author, platform operator, recipient or other witness identifying the Defendant as the source. No correspondence, instruction, payment trail, digital record or admission is exhibited to demonstrate agency, procurement or common design. The assertion that the Defendant must be behind the posts because the posts discuss his counterclaim is a conclusion, not evidence of authorship or agency.
11. The same is true of the suggestion that only the parties knew the issues in dispute. Pleadings filed in court, complaints made to professional bodies and public commentary may expose a dispute to persons beyond the litigants. Even if the publications were false, defamatory, threatening or irresponsible, their character does not by itself identify their author or principal. The Court cannot convert motive and suspicion into proof of agency, particularly where the proposed order restrains constitutional expression and exposes the restrained party to penal consequences for the acts of unidentified third parties.
12. The Defendant's denial is direct and consistent: he states that he does not know the bloggers, did not author the posts and did not procure their publication. At this interlocutory stage the Court is not making a final finding on the truth of that denial. It is enough to observe that the Plaintiff has not presented primary or circumstantial evidence of sufficient cogency to establish an apparent infringement by the Defendant. The necessary nexus between the alleged wrong and the Respondent is missing at this stage.
13. There is a further difficulty concerning the breadth of the relief. Prayer 3 would restrain the Defendant and undefined 'agents/servants' from posting any article, on any social-media platform or any other form of media, regarding any issue pending before the Court until final determination of the suit. The order is not limited to statements shown to be false, threatening, intimidating or calculated to create a real and substantial risk of prejudice. It is therefore capable of prohibiting lawful comment as well as unlawful conduct.
14. Article 33(1) of the Constitution protects freedom of expression, while Article 33(3) requires every person, in exercising that freedom, to respect the rights and reputation of others. Article 24 permits limitation of a right only by law and only to the extent that is reasonable and justifiable. In Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] KESC 53 (KLR), the Supreme Court underscored the constitutional importance of freedom of expression and the media in a democratic society. The protection is not absolute, but a prior restraint must be precise, proportionate and supported by a demonstrated legal basis.
15. The Court of Appeal in Co-operative Bank of Kenya Limited v Njuguna & 5 others [2017] KECA 79 (KLR) recognized, in the context of a defamation claim, that an interlocutory injunction will not ordinarily issue where the defendant indicates an intention to justify the publication, unless the material before the court demonstrates the exceptional clarity required for prior restraint. Although the present motion is framed as protection of the judicial process rather than as a conventional defamation injunction, the same caution is relevant: the Court should not impose an indeterminate gag order where attribution and unlawfulness remain contested and unproved.
16. The Plaintiff invokes the doctrine of sub judice. Section 6 of the Civil Procedure Act prevents a court from proceeding with the trial of a suit or proceeding where the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties or their privies. It is a case-management rule addressed to courts. It does not, by its own force, create a general prohibition against all public reference to a pending suit. Publications which pose a real risk to the administration of justice may attract the law of contempt or other appropriate remedies; but such relief requires proof of the impugned conduct, its attribution to the alleged wrongdoer and the requisite risk or intention. Section 6 cannot supply the missing evidential link in this application.
17. Even if the Court were to proceed to the second limb, the Plaintiff has not shown irreparable injury attributable to the Defendant. The pleaded harm is principally injury to reputation, intimidation and prejudice arising from publications by third-party accounts. A genuine threat to life or safety is grave and ought to be reported to, and investigated by, the competent agencies. Yet an injunction against a litigant cannot be founded merely on the existence of alarming words posted by another person without evidence connecting that litigant to the threat. Injury to reputation is ordinarily capable of vindication by declaratory reliefs and damages against the proved publisher, while a demonstrated interference with justice may be met by appropriately tailored orders against the responsible person.
18. The balance of convenience does not cure those deficiencies. Maintaining the interim order would expose the Defendant to possible contempt for conduct of persons not proved to be under his control. It would also leave uncertain what discussion is prohibited and by whom. Conversely, declining the omnibus restraint does not licence threats, defamation, intimidation or interference with witnesses and the judicial process. The general law remains available against any person whose unlawful conduct is properly established.
19. There is also a procedural point worth recording. The interim order was granted ex parte at the first instance in order to hold the position until the Defendant was heard. Such an order is necessarily provisional. Once the inter partes material demonstrates that the applicant has not met the threshold for the substantive injunction, the interim order cannot be continued merely because it has previously been obeyed or because later proceedings allege its breach. The validity of alleged contempt during the life of an order is a separate question; it does not convert an otherwise unmerited interlocutory restraint into a final injunction.
20. For completeness, the authorities on contempt cited in the later submissions do not alter the result. Mutitika v Baharini Farm Ltd [1985] KECA 60 (KLR) establishes that contempt is quasi-criminal and must be proved to a standard higher than a balance of probabilities, though not exactly beyond reasonable doubt. Shimmers Plaza Limited v National Bank of Kenya Limited [2015] KECA 282 (KLR) addresses knowledge of an order. Knowledge, however, is distinct from breach. Even where notice of the interim order is established, authorship, procurement or control of the later third-party publication must still be proved to the applicable standard. That question belongs to the later contempt motion and is not determined in this ruling.
21. On the evidence presently before this court, I find that the Plaintiff/Applicant has not established a prima facie case that demonstrates the Defendant authored, procured, controlled or caused the impugned publications. The motion therefore fails at the first threshold under the Giella V Cassman Brown case.
Disposition
22. The Notice of Motion dated 12th November 2025 is hereby dismissed.
23. The interim order issued on 12th November 2025 in terms of prayer 2 of the application is hereby discharged.
24. For the avoidance of doubt, this ruling does not determine the separate Notice of Motion dated 1st December 2025, nor does it determine whether any person is liable for any alleged defamatory, threatening or contemptuous publication. Those questions shall be determined, when properly placed before the Court, on their own pleadings and evidence.
25. Given the subsisting advocate-client dispute, the nature of the complaints and the need not to prejudice the substantive suit or the later motion, the costs of the application shall be in the cause.
Orders accordingly.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 16TH DAY OF SEPTEMBER, 2026 THROUGH THE MICROSOFT TEAMS PLATFORM
KENNEDY KANDET
JUDGE
IN THE PRESENCE/ABSENCE OF PARTIES
COURT ASSISTANT: AGGREY
i) SPENT
ii) THAT pending the hearing and determination of the instant application, the Defendant by himself or through his agents/servants be restrained from posting any Articles in any social media platform or any other form of media regarding any of the issues pending before court and more specifically the Defendant’s claim for a refund of Kenya Shillings Twenty Two Million Four Hundred Thousand only (Kshs.22,400,000) being alleged legal fees paid to the plaintiff.
iii) THAT pending the hearing and determination of the instant suit, the defendant by himself or through his agents/servants be restrained from posting any Articles in any social media platform or any other form of media regarding any of the issues pending before court and more specifically the Defendant’s claim for a refund of Kenya Shillings Twenty Two Million Four Hundred Thousand only (Ksh.22,4000,000) being alleged legal fees paid to the plaintiff.
iv) THAT costs of this application be provided for.
2. The application is anchored on the Plaintiff's supporting affidavit sworn on 12th November 2025. He deposes that the suit was then fixed for hearing on 21st January 2026 and that the Defendant's counterclaim seeks recovery of Kshs.22,400,000. He complains that, beginning on 8th October 2025, articles and comments appeared on social-media accounts associated with persons described as 'Mzalendo Blogger', 'Solo Mzalendo' and 'Maverick Aoko'. According to the Plaintiff, those publications discussed the dispute, stated or implied that he ought to refund the money, and included threatening or intemperate comments. He contends that the Defendant caused the publications through agents or servants and that continued discussion of the merits offends the sub judice rule and undermines the authority of the Court.
3. On 12th November 2025 the Court granted prayer 2 of the motion on an interim basis and directed service. The affidavit of service and the exhibited email show that the order and application were transmitted to the Defendant's advocates on 13th November 2025. The Defendant subsequently filed a replying affidavit. He denies authoring, publishing, sharing, procuring or causing any of the impugned posts. He further denies knowing or having any relationship with the persons or accounts identified by the Plaintiff. His position is that the alleged link is speculative and that the order sought would unfairly restrain him in respect of publications by independent third parties over whom he has no control.
The parties' submissions
4. For the Plaintiff, it is maintained that the order of 12th November 2025 was clear, that the Defendant had notice of it through his advocates and that publications touching on the dispute continued thereafter. The Plaintiff asks the Court to infer the Defendant's involvement from the subject matter of the posts, the alleged motive to publicize the claim for refund, and the use of accounts which, according to him, were not operated by the persons whose names they bore. He urges that restraint is necessary to preserve the dignity of the Court and the fair administration of justice.
5. The Defendant submits that the Plaintiff has not produced evidence connecting him to any of the named bloggers or accounts. He relies on the principles governing interlocutory injunctions in Giella v Cassman Brown & Co Ltd [1973] EA 358, Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR) and Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] KECA 606 (KLR). He further argues that a restraint upon speech, particularly in a dispute touching on alleged defamation, calls for exceptional caution; that the publications were made by persons who are not parties to the suit; and that the Plaintiff has shown neither a prima facie case against him in respect of those publications nor irreparable injury attributable to him.
Analysis and determination
6. I have considered the motion, the affidavit evidence, the annexures, the written submissions and the authorities cited. In my view, two issues arise for determination: first, whether the Plaintiff has satisfied the threshold for an interlocutory injunction against the Defendant; and secondly, what orders should issue as to the interim restraint and costs.
7. The jurisdiction under Order 40 is discretionary and must be exercised judicially. The familiar principles in Giella v Cassman Brown & Co Ltd [1973] EA 358 remain that an applicant must establish a prima facie case with a probability of success; demonstrate that in the absence of an injunction, he stands to suffer injury which would not adequately be compensated by damages; and, where the Court remains in doubt, show that the balance of convenience lies in his favour.
8. The Court of Appeal in Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] KECA 606 (KLR) emphasized that the three conditions are separate and sequential hurdles. The applicant must first surmount the prima facie case threshold. If he does not, the Court need not proceed to consider irreparable injury or balance of convenience. A prima facie case, as explained in Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR), is not merely an arguable case. On the material before the Court, there must be an apparent right which has been infringed by the person against whom relief is sought, calling for an explanation or rebuttal.
9. The right asserted by the Plaintiff is intelligible. A litigant is entitled to have a pending dispute adjudicated in court without threats, intimidation or conduct presenting a real risk of prejudice to the administration of justice. Equally, the authority of the Court must be protected. Those propositions, however, do not relieve an applicant of the burden imposed by sections 107, 108 and 109 of the Evidence Act. The Plaintiff must place before the Court material capable, at least prima facie, of connecting the Defendant to the acts sought to be restrained.
10. The impugned publications exhibited by the Plaintiff are attributed on their face of it to social-media accounts bearing names other than that of the Defendant. None is shown to have originated from an account owned or controlled by the Defendant. There is no affidavit from any author, platform operator, recipient or other witness identifying the Defendant as the source. No correspondence, instruction, payment trail, digital record or admission is exhibited to demonstrate agency, procurement or common design. The assertion that the Defendant must be behind the posts because the posts discuss his counterclaim is a conclusion, not evidence of authorship or agency.
11. The same is true of the suggestion that only the parties knew the issues in dispute. Pleadings filed in court, complaints made to professional bodies and public commentary may expose a dispute to persons beyond the litigants. Even if the publications were false, defamatory, threatening or irresponsible, their character does not by itself identify their author or principal. The Court cannot convert motive and suspicion into proof of agency, particularly where the proposed order restrains constitutional expression and exposes the restrained party to penal consequences for the acts of unidentified third parties.
12. The Defendant's denial is direct and consistent: he states that he does not know the bloggers, did not author the posts and did not procure their publication. At this interlocutory stage the Court is not making a final finding on the truth of that denial. It is enough to observe that the Plaintiff has not presented primary or circumstantial evidence of sufficient cogency to establish an apparent infringement by the Defendant. The necessary nexus between the alleged wrong and the Respondent is missing at this stage.
13. There is a further difficulty concerning the breadth of the relief. Prayer 3 would restrain the Defendant and undefined 'agents/servants' from posting any article, on any social-media platform or any other form of media, regarding any issue pending before the Court until final determination of the suit. The order is not limited to statements shown to be false, threatening, intimidating or calculated to create a real and substantial risk of prejudice. It is therefore capable of prohibiting lawful comment as well as unlawful conduct.
14. Article 33(1) of the Constitution protects freedom of expression, while Article 33(3) requires every person, in exercising that freedom, to respect the rights and reputation of others. Article 24 permits limitation of a right only by law and only to the extent that is reasonable and justifiable. In Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] KESC 53 (KLR), the Supreme Court underscored the constitutional importance of freedom of expression and the media in a democratic society. The protection is not absolute, but a prior restraint must be precise, proportionate and supported by a demonstrated legal basis.
15. The Court of Appeal in Co-operative Bank of Kenya Limited v Njuguna & 5 others [2017] KECA 79 (KLR) recognized, in the context of a defamation claim, that an interlocutory injunction will not ordinarily issue where the defendant indicates an intention to justify the publication, unless the material before the court demonstrates the exceptional clarity required for prior restraint. Although the present motion is framed as protection of the judicial process rather than as a conventional defamation injunction, the same caution is relevant: the Court should not impose an indeterminate gag order where attribution and unlawfulness remain contested and unproved.
16. The Plaintiff invokes the doctrine of sub judice. Section 6 of the Civil Procedure Act prevents a court from proceeding with the trial of a suit or proceeding where the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties or their privies. It is a case-management rule addressed to courts. It does not, by its own force, create a general prohibition against all public reference to a pending suit. Publications which pose a real risk to the administration of justice may attract the law of contempt or other appropriate remedies; but such relief requires proof of the impugned conduct, its attribution to the alleged wrongdoer and the requisite risk or intention. Section 6 cannot supply the missing evidential link in this application.
17. Even if the Court were to proceed to the second limb, the Plaintiff has not shown irreparable injury attributable to the Defendant. The pleaded harm is principally injury to reputation, intimidation and prejudice arising from publications by third-party accounts. A genuine threat to life or safety is grave and ought to be reported to, and investigated by, the competent agencies. Yet an injunction against a litigant cannot be founded merely on the existence of alarming words posted by another person without evidence connecting that litigant to the threat. Injury to reputation is ordinarily capable of vindication by declaratory reliefs and damages against the proved publisher, while a demonstrated interference with justice may be met by appropriately tailored orders against the responsible person.
18. The balance of convenience does not cure those deficiencies. Maintaining the interim order would expose the Defendant to possible contempt for conduct of persons not proved to be under his control. It would also leave uncertain what discussion is prohibited and by whom. Conversely, declining the omnibus restraint does not licence threats, defamation, intimidation or interference with witnesses and the judicial process. The general law remains available against any person whose unlawful conduct is properly established.
19. There is also a procedural point worth recording. The interim order was granted ex parte at the first instance in order to hold the position until the Defendant was heard. Such an order is necessarily provisional. Once the inter partes material demonstrates that the applicant has not met the threshold for the substantive injunction, the interim order cannot be continued merely because it has previously been obeyed or because later proceedings allege its breach. The validity of alleged contempt during the life of an order is a separate question; it does not convert an otherwise unmerited interlocutory restraint into a final injunction.
20. For completeness, the authorities on contempt cited in the later submissions do not alter the result. Mutitika v Baharini Farm Ltd [1985] KECA 60 (KLR) establishes that contempt is quasi-criminal and must be proved to a standard higher than a balance of probabilities, though not exactly beyond reasonable doubt. Shimmers Plaza Limited v National Bank of Kenya Limited [2015] KECA 282 (KLR) addresses knowledge of an order. Knowledge, however, is distinct from breach. Even where notice of the interim order is established, authorship, procurement or control of the later third-party publication must still be proved to the applicable standard. That question belongs to the later contempt motion and is not determined in this ruling.
21. On the evidence presently before this court, I find that the Plaintiff/Applicant has not established a prima facie case that demonstrates the Defendant authored, procured, controlled or caused the impugned publications. The motion therefore fails at the first threshold under the Giella V Cassman Brown case.
Disposition
22. The Notice of Motion dated 12th November 2025 is hereby dismissed.
23. The interim order issued on 12th November 2025 in terms of prayer 2 of the application is hereby discharged.
24. For the avoidance of doubt, this ruling does not determine the separate Notice of Motion dated 1st December 2025, nor does it determine whether any person is liable for any alleged defamatory, threatening or contemptuous publication. Those questions shall be determined, when properly placed before the Court, on their own pleadings and evidence.
25. Given the subsisting advocate-client dispute, the nature of the complaints and the need not to prejudice the substantive suit or the later motion, the costs of the application shall be in the cause.
Orders accordingly.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 16TH DAY OF SEPTEMBER, 2026 THROUGH THE MICROSOFT TEAMS PLATFORM
KENNEDY KANDET
JUDGE
IN THE PRESENCE/ABSENCE OF PARTIES
COURT ASSISTANT: AGGREY