REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT LODWAR
CIVIL CASE NO E003 OF 2025
HON. JEREMIAH EKAMAIS LOMORUKAI NAPOTIKAN……….…………. PLAINTIFF
VERSUS
HON. PROTUS EWESIT AKUJAH...………………………………….….…. DEFENDANT
RULING
1. The court is invited to determine the plaintiff’s Notice of Motion dated 25.04.2025 in which the applicant prays in the main that the Defendant whether by himself, agents, servants, and/or employees or otherwise be restrained from further uttering, recording, writing, printing, and publishing, circulating, disseminating, or causing to be uttered, written, published, circulated, and disseminated in any manner whatsoever, falsehoods, in the form of words and statements concerning and in respect of the Plaintiff including but not limited to the public within Turkana County, within the Republic of Kenya or causing to be uttered, written, printed, published, circulated or disseminated any words in any manner defamatory of the Applicant whatsoever in the entire Republic of Kenya pending the hearing of this Suit filed herein together with this Application .
2. The application was supported by the affidavit of the plaintiff in which the instances and words complained about were reproduced in extension but the gist is that; the defamatory statements were published by the Respondent with the sole object of soiling the applicants character among his family members, peers, colleagues, supporters and other fellow national leaders then effectively shared by the Respondent to third parties through social media and circulated widely nationally and beyond in a manner that imputed that the applicant is corrupt and a criminal. It was then emphasized that in sharing the press statement to national and local media outlets and other third parties in the social media shows that the statements were aimed for the consumption by the third parties which has resulted utter embarrassment locally, nationally and globally. He alleges having been disgraced, humiliated and subjected to untold ridicule in the eyes of right-thinking people who now view him as a criminal. The applicant thus prays that the respondent be restrained from continuing to publish further information that are reckless and solely meant to injure his reputation.
3. To the affidavit was exhibited documents alleged to have demonstrated the words uttered by the respondent.
4. The application was opposed by the respondent on the strength of the Replying Affidavit sworn by respondent whose gist was that he indeed authored and published the matters complained about but did so under his constitutional right to make fair comment on matters of public interest and local notoriety. He stressed that the Ethics and Anti -corruption Commission made a public statement over the happenings at the county; had in fact, raided homes of senior county official a fact which was published in the national print media and that the applicant had in fact ran into the fear of being apprehended and charged, sought anticipatory bail from court but the same was dismissed. He thus contends that in authoring the articles he published he was merely his oversight role, under articles 94 and 95 of the constitution, as an elected leader hence to restrain him would be contrary to the law. He added that other elected leaders in the county had made similar comments but none had been dragged into court.
5. The application was argued by way of written submissions. The applicant’s submissions are dated ……. While those by the respondent are dated 16.6.29025. The court has read both submissions and appreciates both sides to not only agree that the articles were indeed published by the respondent but equally that being an interlocutory injunctive relief, the principles enunciated in Giella vs Caman Brown (1973) EA 358, as applied in subsequent decisions, do apply in the circumstances. The point of departure between the two is whether a prima facie case has been established to permit the grant of orders of temporary injunction.
6. While the applicant lays premium on the admitted fact of admission and that there is no proof that he has acted corruptly or inappropriately, the respondent assert that with other publications in public domain on the same strength, there is no demonstration that a prima facie case exists to warrant issuance of the injunctive order sought. Both sides have cited the law deemed to support their respective cases and the court is satisfied that it has been appropriately supported and guided by the two counsel.
7. Its clear to the court that it can only grant the orders sought if it be satisfied that there is a prima facie case established that the words spoken is capable of proving the tort of libel against the defendant at the trial, on the standards established in Giella’s case but with greater caution as was held in Micah Cheserem Vs Immediate Media Services & 4 others (2000) eKLR. That caution the court administers to itself never destroys the three pillars for grant of a temporary injunction but bolster and ring-fences same. It does so n a manner that the proof of any one of the pillars suffices for the grant of a temporary injunction. See Nguruman Ltd Vs Bonde Nelisen & 2 others (2014) KECA 606
8. Based on the now well-trodden path, the court appreciated the leadership position of the two litigants before him, taken judicial notice of the public spat and animosity displayed by them for quite sometime now, and took the very first initiative to refer the matter to court annexed mediation. It was hoped that in mediation, relationships would be built, differences narrow and therefore service to the public enhanced. That process must continue to its conclusion. To underscore the courts regard for mediation, during the past court sessions, counsel have been repeatedly reminded of the parties’ obligations under the Civil Procedure Act and the Mediation Rules.
9. While this matter pends its substratum must be preserved not only for the personal interests of the two litigants but for the public interests the two were elected to serve. The court takes the view that the differences between the two leaders eats into time a s a resource both employ to serve the citizens.
10. While the court appreciates that it cannot gag any citizen, or indeed any other person from, the exercise of freedom of speech and expression, it equally appreciates that respect for others and their reputation is the very purpose and rationale for the limitations of that fundamental freedom under article 33 of the constitution.
11. In the application the applicant complains that that the admitted publications have portrayed him as a corrupt and a criminal yet no criminal prosecution has been initiated against him. His prayer is that the respondent be restrained from perpetuation of the narrative which the applicant contends to be false because there has never been adjudication of a wrongdoing against him. To the contrary the respondent contends that he is in exercise of his fundamental freedom and ought not be gagged. The court understands the applicant to only complain against the publication he considers defamatory before he is found at fault. On the other hand, the respondent asserts the right to freedom of expression and is keen to continue with the publications unless otherwise restrained.
12. On the material placed before the court, the court is satisfied, on a prima facie basis, that the tort of defamation, proof of tort of defamation at trial will be more probable than not. In coming to that conclusion, the court has appreciated the defense of justification and fair comment on a matter of public interest but takes the learning that merely because investigations have been launched against the operations and ongoings at the county government, raids conducted on some county officials and not the applicant, isn’t ipso facto, evidence of wrongdoing in the magnitude of corruption or criminality to justify the publication by the respondent. The court finds that the threshold of a prima facies case has been satisfied.
13. The court is equally convinced that being elected office holder, there is an added injury that portends continued repeat of what others have said without proof as to authenticity. The court considers such injury to be irreparable and thus holds that even the test if irreparable harm has been established.
14. With the two hurdles surmounted, the court grants to the applicant a temporary order of injunction directed at the respondent, by self, agents, employees or contractors and restraining him and them, whomsoever and howsoever, from uttering, recording, writing printing, circulating, disseminating or in any other way publishing any unsubstantiated matter and material depicting the applicant as having acted corruptly, illegally or in appropriately pending the hearing and determination of this suit.
15. Because, of this interlocutory order, this matter must now be fast tracked and brought to closure within, at most, twelve months from the date hereof.
16. The costs of the application are ordered to be costs in the cause.
Dated, signed and delivered Virtually, this day of October, 2025
Patrick J O Otieno
Judge
2
IN THE HIGH COURT OF KENYA AT LODWAR
CIVIL CASE NO E003 OF 2025
HON. JEREMIAH EKAMAIS LOMORUKAI NAPOTIKAN……….…………. PLAINTIFF
VERSUS
HON. PROTUS EWESIT AKUJAH...………………………………….….…. DEFENDANT
RULING
1. The court is invited to determine the plaintiff’s Notice of Motion dated 25.04.2025 in which the applicant prays in the main that the Defendant whether by himself, agents, servants, and/or employees or otherwise be restrained from further uttering, recording, writing, printing, and publishing, circulating, disseminating, or causing to be uttered, written, published, circulated, and disseminated in any manner whatsoever, falsehoods, in the form of words and statements concerning and in respect of the Plaintiff including but not limited to the public within Turkana County, within the Republic of Kenya or causing to be uttered, written, printed, published, circulated or disseminated any words in any manner defamatory of the Applicant whatsoever in the entire Republic of Kenya pending the hearing of this Suit filed herein together with this Application .
2. The application was supported by the affidavit of the plaintiff in which the instances and words complained about were reproduced in extension but the gist is that; the defamatory statements were published by the Respondent with the sole object of soiling the applicants character among his family members, peers, colleagues, supporters and other fellow national leaders then effectively shared by the Respondent to third parties through social media and circulated widely nationally and beyond in a manner that imputed that the applicant is corrupt and a criminal. It was then emphasized that in sharing the press statement to national and local media outlets and other third parties in the social media shows that the statements were aimed for the consumption by the third parties which has resulted utter embarrassment locally, nationally and globally. He alleges having been disgraced, humiliated and subjected to untold ridicule in the eyes of right-thinking people who now view him as a criminal. The applicant thus prays that the respondent be restrained from continuing to publish further information that are reckless and solely meant to injure his reputation.
3. To the affidavit was exhibited documents alleged to have demonstrated the words uttered by the respondent.
4. The application was opposed by the respondent on the strength of the Replying Affidavit sworn by respondent whose gist was that he indeed authored and published the matters complained about but did so under his constitutional right to make fair comment on matters of public interest and local notoriety. He stressed that the Ethics and Anti -corruption Commission made a public statement over the happenings at the county; had in fact, raided homes of senior county official a fact which was published in the national print media and that the applicant had in fact ran into the fear of being apprehended and charged, sought anticipatory bail from court but the same was dismissed. He thus contends that in authoring the articles he published he was merely his oversight role, under articles 94 and 95 of the constitution, as an elected leader hence to restrain him would be contrary to the law. He added that other elected leaders in the county had made similar comments but none had been dragged into court.
5. The application was argued by way of written submissions. The applicant’s submissions are dated ……. While those by the respondent are dated 16.6.29025. The court has read both submissions and appreciates both sides to not only agree that the articles were indeed published by the respondent but equally that being an interlocutory injunctive relief, the principles enunciated in Giella vs Caman Brown (1973) EA 358, as applied in subsequent decisions, do apply in the circumstances. The point of departure between the two is whether a prima facie case has been established to permit the grant of orders of temporary injunction.
6. While the applicant lays premium on the admitted fact of admission and that there is no proof that he has acted corruptly or inappropriately, the respondent assert that with other publications in public domain on the same strength, there is no demonstration that a prima facie case exists to warrant issuance of the injunctive order sought. Both sides have cited the law deemed to support their respective cases and the court is satisfied that it has been appropriately supported and guided by the two counsel.
7. Its clear to the court that it can only grant the orders sought if it be satisfied that there is a prima facie case established that the words spoken is capable of proving the tort of libel against the defendant at the trial, on the standards established in Giella’s case but with greater caution as was held in Micah Cheserem Vs Immediate Media Services & 4 others (2000) eKLR. That caution the court administers to itself never destroys the three pillars for grant of a temporary injunction but bolster and ring-fences same. It does so n a manner that the proof of any one of the pillars suffices for the grant of a temporary injunction. See Nguruman Ltd Vs Bonde Nelisen & 2 others (2014) KECA 606
8. Based on the now well-trodden path, the court appreciated the leadership position of the two litigants before him, taken judicial notice of the public spat and animosity displayed by them for quite sometime now, and took the very first initiative to refer the matter to court annexed mediation. It was hoped that in mediation, relationships would be built, differences narrow and therefore service to the public enhanced. That process must continue to its conclusion. To underscore the courts regard for mediation, during the past court sessions, counsel have been repeatedly reminded of the parties’ obligations under the Civil Procedure Act and the Mediation Rules.
9. While this matter pends its substratum must be preserved not only for the personal interests of the two litigants but for the public interests the two were elected to serve. The court takes the view that the differences between the two leaders eats into time a s a resource both employ to serve the citizens.
10. While the court appreciates that it cannot gag any citizen, or indeed any other person from, the exercise of freedom of speech and expression, it equally appreciates that respect for others and their reputation is the very purpose and rationale for the limitations of that fundamental freedom under article 33 of the constitution.
11. In the application the applicant complains that that the admitted publications have portrayed him as a corrupt and a criminal yet no criminal prosecution has been initiated against him. His prayer is that the respondent be restrained from perpetuation of the narrative which the applicant contends to be false because there has never been adjudication of a wrongdoing against him. To the contrary the respondent contends that he is in exercise of his fundamental freedom and ought not be gagged. The court understands the applicant to only complain against the publication he considers defamatory before he is found at fault. On the other hand, the respondent asserts the right to freedom of expression and is keen to continue with the publications unless otherwise restrained.
12. On the material placed before the court, the court is satisfied, on a prima facie basis, that the tort of defamation, proof of tort of defamation at trial will be more probable than not. In coming to that conclusion, the court has appreciated the defense of justification and fair comment on a matter of public interest but takes the learning that merely because investigations have been launched against the operations and ongoings at the county government, raids conducted on some county officials and not the applicant, isn’t ipso facto, evidence of wrongdoing in the magnitude of corruption or criminality to justify the publication by the respondent. The court finds that the threshold of a prima facies case has been satisfied.
13. The court is equally convinced that being elected office holder, there is an added injury that portends continued repeat of what others have said without proof as to authenticity. The court considers such injury to be irreparable and thus holds that even the test if irreparable harm has been established.
14. With the two hurdles surmounted, the court grants to the applicant a temporary order of injunction directed at the respondent, by self, agents, employees or contractors and restraining him and them, whomsoever and howsoever, from uttering, recording, writing printing, circulating, disseminating or in any other way publishing any unsubstantiated matter and material depicting the applicant as having acted corruptly, illegally or in appropriately pending the hearing and determination of this suit.
15. Because, of this interlocutory order, this matter must now be fast tracked and brought to closure within, at most, twelve months from the date hereof.
16. The costs of the application are ordered to be costs in the cause.
Dated, signed and delivered Virtually, this day of October, 2025
Patrick J O Otieno
Judge
2