REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KWALE
CIVIL SUIT NO. E004 OF 2026
(Coram: Andayi W. F., J.)
MARY MUTHEU alias MARION……………...........................…PLAINITFF/APPLICANT
VERSUS
KERSTIN GEYER.................................................................... DEFENDANT/RESPONDENT
RULING
1. The plaintiff’s/applicant’s Notice of Motion dated 19 th February 2026 seeks an order of temporary injunction to restrain the defendant/respondent, her servants, agents, employees, associates, proxies or any one person acting under her instructions or authority from publishing or disseminating any defamatory statements concerning the applicant and from harassing, contacting, intimidating, or in any way interfering with the applicant or with Title Number Kwale/Diani/2447 (Tumaini Residence) including entering, occupying, managing, funding or facilitating any person to deal with the said property pending the hearing and determination of the suit.
2. The application is brought under Order 40 Rule 1, 2 and 3 of the Civil Procedure Rules, 2010.
3. The grounds in support of the application are set out on the face of the application and expounded in the supporting affidavit sworn on 19 th February 2026 by Mary Mutheu alias Marion, the applicant and a further supporting affidavit sworn by Josephat Amol on 19 th February 2026. There is filed what is supposed to be a further supporting affidavit by Mary Mutheu alias Marion dated 9 th March 2026.
4. The first grounds is that the applicant is the registered proprietor and resident of Title /Number Kwale/Diani/2447 (Tumaini Residence). She has however not provided any documentary proof such as document of title to confirm the deposition that she is a registered proprietor of the property. That the respondent has financed and supported persons who have refused to vacate the property posing a real and immediate risk to her safety and she has continued to interfere with her residence in the stated portion of land.
5. She deposes further that the respondent was previously married to one Levy Amudala but divorced in the year 2023. Although she deposes that copy of the certificate of divorce was attached to the supporting affidavit as “MM001” no such document is annexed. What is annexed instead is marked as “MM002” which are screenshots of Whatsapp communications.
6. Further that the respondent has on diverse dates published defamatory statements concerning the applicant The defamatory statements allege that she is a prostitute, HIV positive and that she killed her late husband Helmut Hamm.
7. The applicant thus prays that interim restraining orders be issued against the respondent and unless the interim restraining orders are issued the defamatory statements and interference in the property will continue and escalate.
8. In further support of the application, Josephat Amol, deposes that he is known to both parties herein and is a friend to one Levy Amudala who was married to the respondent but are currently divorced and is now married and or in a relationship with the applicant herein. He deposes to have received WhatsApp messages on diverse dates from the respondent concerning the applicant from the mobile phone number 0716 284 060. The statements read “ Hemult had aids I know it, I don’t want my hubby to screw this hoe, did you drop MARION today at Safina with Levi? She has aids u know it, she has aids you know that.”
9. The deponent deposes that the statements made appeared to be defamatory and were presented to him as factual assertions. The deponent annexed to his further supporting affidavit the Whatsapp extracts of the communication as “JA-001.”
10. The application is opposed by the respondent through a replying affidavit sworn on 3 rd March 2026 by Kerstin Amudala as well as a Notice of Preliminary Objection dated 14 th April 2026. The respondent in the replying affidavit deposes that the application is incompetent and a total abuse of the process of the court.
11. In response, she deposes that the proprietor of the suit property Kwale/ Diani/2447 is one Sebastian Hamm and not the applicant herein. Copies of a Judgment, memorandum of appeal filed at the ELC Kwale Court and Green Card were annexed as “KG-1,” “KG-2” and “KG-3” respectively to her replying affidavit. She confirms that the applicant was married to Helmut Hamm since, deceased, whereas she was married to Levi Amudala until 2025 when a Certificate of Making Decree Nisi Absolute was issued following their divorce. She has annexed to the replying affidavit a copy of the certificate of marriage between the applicant and Sebastain Hamm and certificate of death of Sebastian Hamm were annexed as KG-4 and KG-5 respectively.
12. The respondent deposes that the WhatsApp extract annexed to the applicant’s affidavit and further affidavit of Josephat Amol is a private conversation between a 3 rd party and herself and that the applicant’s legal name Mary Mutheu Chege is not referred to anywhere in the conversation. Further that it cannot be ascertained that the number 0715082488 that received the messages belongs to Josephat Amol.
13. The respondent avers that the applicant’s deceased husband had transferred ownership of the property claimed by the applicant to his son, Sebastian Hamm, in 2018 and the succession petition filed in Kwale High Court P & A No. E005 of 2025, In the matter of Helmut Hamm (Deceased) is fictitious. Copies of the Petition for letters of Administration Intestate are annexed as KG-6 and KG-7.
14. The respondent deposes that the present suit is time barred as it was filed more than one year after the alleged defamatory words were made.
15. The applicant filed a what is supposed to be further affidavit sworn by Mary Mutheu on 9 th March 2026 in response to the replying Affidavit. However, the same is not commissioned by a Commissioner for Oaths as required under section 5 of the Oaths and Statutory Declarations Act (Cap. 15) Laws of Kenya. I am in agreement with the High Court’s decision in the case of In re MWO (Minor) [2021] KEHC 13571 (KLR) where the court said that the legal requirement that an affidavit be commissioned and the failure to do so cannot be dismissed as a mere procedural technicality that can be ignored or overlooked by the court. The supposed further affidavit by the applicant is therefore only a statement of facts and not evidence capable of rebutting the depositions by the respondent in her replying affidavit.
16. Parties agreed to file written submissions on both the Notice of Preliminary Objection dated 14 th April 2026 and the application dated 19 th February 2026 and for the same to be disposed of at the same time.
17. Learned Counsel for the applicant filed written submissions dated 10 th March 2026. Learned counsel submits that the applicant’s claim for defamation is grounded in the Defamation Act (Cap. 36 Laws of Kenya) which protects individuals from the publication of statements that injure their reputation. Counsel submits that the respondent has circulated the allegations imputing serious disease, immoral conduct and criminal wrongdoing which statements are defamatory of the applicant. Counsel placed reliance on the cases of Giella v Cassman Brown & Co. Ltd [1973] EA 358 and Nguruman Limited v Nielsen & 2 others [2014] KECA 606 (KLR) . Learned counsel submits that the applicant has established a prima facie case with a probability of success and irreparable harm.
18. Further counsel relied on the case of Nyagah v Imanyara [2013] KEHC 6662 (KLR) where the court held that malice can be inferred from a deliberate or reckless or even negligently ignoring of facts. Counsel submitted that the respondent’s conduct is an intrusion in to the applicant’s private life guaranteed under Article 31 of the Constitution and the right to human dignity under Article 28 of the Constitution.
19. Regarding the issue of the land occupied by the applicant, learned counsel submits that, the applicant’s proprietary rights as a registered proprietor are protected under the Land Registration Act (Cap. 300) Laws of Kenya which recognizes the right of a registered proprietor to peaceful possession and enjoyment of land.
20. On the Notice of Preliminary Objection counsel submitted that the argument is misplaced. The defamatory allegations complained of are continuous and each repetition or republication of a defamatory statement constitutes a fresh action.
21. Learned counsel submitted that the applicant stands to suffer irreparable harm that cannot be compensated by monetary damages as it damages the reputation, dignity and personal security. Counsel prays that the application be allowed and costs be granted.
22. Learned counsel for the respondent filed submissions dated 15 th April 2026 and raised 2 issues for determination. On whether the applicant’s application is merited counsel relied on the case of Kamunge v Gachari [2016] KEHC 5119 (KLR) in which definitions of the torts of defamation are discussed and the ingredients required to prove defamation are outlined as set out in the case of John Ward v Standard Limited [2006] Kehc 2629 (KLR) where the High Court. JLA Osiemo, J. stated as follows:-
“A statement is said to be defamatory when it has a tendency to bring a person to hatred, ridicule, or contempt or which causes him to be shunned or avoided or has a tendency to injure him in his office, profession or calling. The ingredients of defamation are:-
i. The statement must be defamatory.
ii. The statement must refer to the plaintiff.
iii. The statement must be published by the defendant.
iv. The statement must be false.”.
23. Learned counsel submitted that the words complained of are not defamatory as alleged. Further that the WhatsApp conversation annexed to the affidavits supporting the application was not sent to the applicant’s WhatsApp account. That the entire application is hearsay and borderline gossip.
24. On the preliminary objection counsel submitted that the claim is time barred by virtue of Section 4 (2) of the Limitations of Actions Act which required an action of libel or slander be brought within 12 months from the date of the cause of action. Counsel submitted that the WhatsApp conversation was shared way back in 2023 and more than 3 years have passed. Counsel therefore urged that the court lacks jurisdiction and should proceed to down its tools.
25. I have considered the application and the response thereto by the respondent as well as the submissions by learned counsels. The issues for determination in this application are:
i. whether the preliminary objection dated 14 th April 2026 is merited.
ii. Whether the conditions for issuance of temporary injunction in a defamation suit have been met by the applicant.
26. The respondent filed a preliminary objection dated 14 th April 2026 stating that:
i. The suit is time barred by dint of Section 4 (2) of the Limitations of Actions Act (Cap. 22) Laws of Kenya.
ii. The present suit and application filed be struck out with costs awarded to the defendant.
27. The preliminary objection raised to the applicant’s suit by the respondent is based on the proviso to section 4(2) of the Limitation of Actions Act, (Cap. 22) Laws of Kenya which provides that:
4(2). An action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued:
Provided that an action for libel or slander may not be brought after the end of twelve months from such date.”
28. The law on preliminary objections is as set out in the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 , where the Court stated;
“A preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of the pleadings, and which if argued as a preliminary point may dispose of the suit. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.
29. The issue of limitation of time raised by the respondent is an issue of law that is capable of finally disposing of the suit because the object of a statute of limitation is to bar stale claims from being prosecuted. Crabbe JA in the case of Mehta v Shah [1965] EA 321 at p 330 , stated that the object of any limitation enactment is to prevent a plaintiff from prosecuting “stale claims on the one hand, and on the other hand protect a defendant after he had lost evidence for his defence from being disturbed after a long lapse of time.” In Masulal Maganlal Rawal v Maneklal Maganlal Rawal [1989] KEHC 93 (KLR) it was explained further that the object is not to extinguish claims. Further, in the case of Gathoni v Kenya Co-operative Creameries Ltd [1982] KECA 10 (KLR) the Court of Appeal explained that, the law of limitation of actions is intended to protect defendants against unreasonable delay in the bringing of suits against them. The statute expects the intending plaintiff to exercise reasonable diligence and to take reasonable steps in his own interest. Therefore, where it is found that indeed the suit is time barred then, as submitted by learned counsel for the respondent, the court loses the jurisdiction to grant the reliefs sought and the same is finally disposed of by being dismissed finally without proceeding further because the case lacks merit since it is barred by statute.
30. The High Court in the case of Oraro v Mbaja [2005] KEHC 3182 (KLR) pronounced itself as follows on how a preliminary objection ought to be established:
“I think the principle is abundantly clear. A “preliminary objection”, correctly understood, is now well identified as, and declared to be a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion which claims to be a preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the Court should allow to proceed. I am in agreement with learned counsel, Mr. Ougo , that “where a Court needs to investigate facts, a matter cannot be raised as a preliminary point.” This legal principle is beyond dispute, as there are divers weighty authorities carrying the message.”
31. It is the respondent’s assertions that the WhatsApp conversation sought to be relied on was shared way back in 2023 and more than 3 years have lapsed contrary to section 4 (2) of the Limitations of Actions Act. The applicant in response states that the allegations complained of are continuous in nature and each defamatory statement constitutes a fresh cause of action.
32. I have perused through the WhatsApp conversation annexed as “M002” in the supporting affidavit and repeated as “JOO1” in the further supporting affidavit which contain the alleged defamatory publication and therefore the basis of the suit filed herein. I notice that the extracts do not show the date, perhaps out of the manner in which they were extracted rather than the date being not ascertainable. It is therefore not possible at this point in time, based on those copies to know when both were sent to the recipient. Even then, the applicant has not annexed any recent communication to show the continuous nature of the allegations complained of. I have also considered the plaint and I do not find any particular date on which the alleged defamatory words were published.
33. Regarding the assertion by the respondent that the conversation was shared in 2023 similarly I do not see any documentation or communication in support of this position. Hence, the issue of the time frame of when the conversation was had and shared is one that needs to be proved by way of factual evidence to ascertain whether or not the claim for defamation is time barred and not by way of the preliminary objection.
34. On that basis, I find that the preliminary objection has no merit and the same is dismissed.
35. Turning to the application for interlocutory injunction in a defamation suit, the traditional conditions to be met by a party seeking a temporary injunction are set out in the case of Giella v. Cassman Brown Co. Ltd [1973] EA 358 to wit: -
a. Has the applicant established a prima facie case with a probability of success?
b. Will the applicant suffer irreparable injury unless an injunction is issued? and,
c. where there is doubt in the mind of the court the application will be determined depending on where the balance of convenience lies.
36. Grant of an interlocutory injunction in a defamation suit however goes beyond the traditional grounds as set out in Giella (supra). In Gatley on Libel and Slander 12 th edition, Sweet and Maxwell, at paragraph 2f.2, guidance is given on what the court ought to consider in determining whether or not to grant an interlocutory injunction on defamation cases. In short, the court must be satisfied;
i. That the statement is unarguably defamatory.
ii. That there are no grounds for concluding the statement to be true;
iii. That there is no other defence which might succeed;
iv. That there is evidence of an intention to repeat or publish the defamatory statement.
37. Courts have considered this issue and laid down several factors to be taken into account. In Renton Company Limited v Philip Kisia & 2 Others [2012] KEHC 2808 (KLR) , Odunga, J. (as he then was) extensively discussed when a temporary injunction may or may not be issued at the interlocutory stage as follows:
“The freedom of expression is enshrined in Article 33(1)(a) of the Constitution which provides that every person has the right to freedom of expression, which includes freedom to seek, receive or impart information or ideas. However, that freedom is limited by clause (3) thereof which provides that in the exercise of the right to freedom of expression, every person shall respect the rights and reputation of others.
It, therefore, follows that in suits for defamation the Courts must weigh between the freedom to express oneself and impart information against the respect for others’ rights and reputation. Where a person alleges that what was said is true, for example, to gag the dissemination of the information may be as detrimental as to allow false information to be published to the detriment of one’s reputation. Reputation once lost, it must be recognized may not be regained. The grant of interlocutory injunctions in defamatory cases, though follow the general principles in applications for interlocutory injunctions, have been modified to suit the unique subject of defamation. This principle cannot be expressed better than Khamoni, J in Micah Cheserem vs. Immediate Media Services & 4 Others Nairobi HCCC No. 398 of 2000 [2000] 2 EA 371 in which the learned Judge expressed himself as follows:
“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 injunction as set out in the case of Giella vs. Cassman Brown & Co. Ltd. [1973] EA 358 generally apply…In defamation cases, those principles apply together with the 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 the clearest possible cases: the Court must be satisfied that the words complained of are libellous 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 defamatory cases is that the action for defamation bring out conflict between private interest and public interest, and 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”.
The same Judge in Francis P. Lotodo vs. Star Publishers & Another Nairobi HCCC No. 883 of 1998 had this to say:
“An injunction will not be granted where the defendant pleads justification unless the Court can be sure that his defence cannot be sustained at the trial and that the plaintiff will receive more than nominal damages, even if the publication, if true, would clearly be libellous…To justify the Court in granting an interim injunction, it must come to a decision upon the question of libel or not and therefore the jurisdiction is of a delicate nature and ought only to be exercised in the clearest cases…The court would not restrain the publication of an article, even though it was defamatory, when the defendants said that they intended to plead justification or fair comment…The discretion will not in general be exercised unless there is “a strong prima facie evidence that the statement complained of is untrue” for “until it is clear that an alleged libel is untrue, it is not clear that any right at all has been infringed.”Where the words are prima facie privileged, the Court should not grant an interlocutory injunction unless the Court is clearly satisfied that the defendant was actuated by malice. When the defendant says that he is going to justify the words complained of, there is an end of the case so far as an interim injunction is concerned…The decision in Giella vs. Cassman Brown & Company Ltd. [1973] EA 358 at 260 unlike the English cases, is binding on the Courts in all cases of injunction including defamation… The burden of proof that the inconvenience which the plaintiff will suffer by the refusal of the injunction is greater than that which the Defendant will suffer if it is granted lies on the plaintiff… Under Section 79(1) of the Constitution, the rights, principles and conditions enshrined therein free from the drastic interference that may be lost by the granting of an interlocutory injunction, unless there is a substantial risk of grave injustice and the private interest in preventing the publication the applicant seeks to prevent outweighs the public interest”.
In Gilgil Hills Academy Ltd vs. The Standard Ltd Nakuru HCCC No. 88 of 2009 Maraga, J (as he then was) expressed himself as follows:
“At the stage of an application for injunction the court is not able, nay, supposed to make any definitive findings. If it is an ordinary suit, what would be required of the court at that stage is to determine whether, from the pleadings as well as counsel’s submissions, the plaintiff has made out a prima facie case with a probability of success and if so whether a denial of an injunction will cause the plaintiff irreparable loss which cannot be adequately compensated by an award of damages. If the answer to these questions would be in the affirmative, then the plaintiff would be entitled to the injunction and vice versa…This being a defamation case, however, an array of other factors fall for consideration and only two are relevant to this case. They are the public interest in the matter and whether, on the material before the court at this stage, it is clear that the alleged defamatory publication is true or not…On the factor of public interest it is trite law that public interest demands that truth should be out. For that reason, it is in the public interest that individuals should possess the right of free speech, and, indeed, that they should exercise it without impediment. So that that right is not whittled down, the jurisdiction to grant an injunction at an interlocutory stage is a delicate and special one and ought to be exercised only in the clearest of cases…Needless to say that that individual right of free speech or of freedom of expression is enshrined in section 79 of the Constitution. That section, however, provides riders and the one relevant to this case is the protection of the reputation and right of others…In deciding whether or not to grant an injunction, each case should be considered on its own peculiar facts bearing in mind the fact that whether or not the defence of justification and or fair comment will hold is for the court to decide after hearing the case. 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 words complained of are untrue…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”
In Dr James Obondi Otieno vs. Nation Media Group Limited Kisumu HCCS No. 7 of 2005 (Mwera, J was the view that unless the nature of the defamation is the continuing one, acts of defamation, being ordinarily singular, nothing is to be served by issuing an injunction.”
38. Additionally, in the case of Lenaola vs Muigai [2025] KEHC 18768 the Court at paragraph 25 pronounced itself as follows on the issue of temporary injunctive orders in defamation suits;
“ Recently, in Ejidio Kinyanjui v. National Media Group & 2 Others [2025] KEHC 17466 (KLR), I similarly held that in defamation suits, an interlocutory injunction will issue, where the Application has satisfied the legal threshold in Giella, and additionally also demonstrated that there exist exceptional factors or circumstances that make the grant of the injunction, most compelling and most inviting. I then enumerated some of such exceptional circumstances as including and not limited to the following:
a. Where the Defendant’s utterance of the said statements or utterances against the Plaintiff, has been habitual or repetitive- hence giving rise to a reasonable fear of continuation. In such a case, unless the Defendant has offered to court a formal undertaking that he will not make any further such statements or utterances while the suit is pending, a court may issue the injunction;
b. Where the Defendant has continued making the same statements or utterances against the Plaintiff, unperturbed- even after the institution of the suit, and in spite of the suit;
c. Where there is a high likelihood that the Defendant will continue publishing or uttering the same statements or utterances against the Plaintiff, and is unlikely to stop, unless restrained by the court;
d. Where there is evidence of imminent or immediate threat of repeat publication.
e. The prejudice or loss the Defendant will suffer or is likely to suffer, if the injunction is granted;
f. Where the words or expression used in the impugned statements or utterances, are so oppressive, so harsh, so bullyish, so impunitous, or so insensitive; or
g. Where from their tone, the impugned statements or utterances are clearly laced with ill-will, malice, improper motive, vendetta, vengeance, bitterness, or they are clearly intended for retaliation or for the settling of scores or old grudges.
39. The applicant’s plea is that the respondent has published defamatory statements against her and has annexed WhatsApp extracts as “M002” in the supporting affidavit as proof. Further, annexure “JA-001” is also annexed to the further supporting affidavit as proof of the defamatory words. The words from the WhatsApp extract are as follows, “ Hemult had aids I know it, I don’t want my hubby to screw this hoe, did you drop MARION today at Safina with Levi? She has aids u know it, she has aids you know that.”
40. No doubt, these words impute immoral character and criminal wrong doing upon the subject under discussion. The words would therefore constitute an infringement of the subject’s right to human dignity guaranteed under Article 28 of the Constitution 2010 and the right to privacy under Article 31 of the Constitution 2010. The information shared through the WhatsApp message relates to the private affairs of the subject.
41. The respondent deposes that she shared the messages with the recipient in a private conversation and secondly that it has not been shown that they referred to the applicant. The applicant on her part has annexed an affidavit sworn by the recipient of the words who deposes that he knows that the subject of the words was the applicant. No doubt, evidence will be required at the hearing of the main suit to show that indeed the words were directed at the applicant.
42. At this interlocutory stage however, it has not been denied that the words are defamatory and so far no defence of truthfulness or justification of the said words, qualified privilege or fair comment has been raised. On that basis, I am inclined to find that a prima facie case with a probability of success has been established subject to the issue of when the words were published being established to have been within the limitation period and any defences available to the respondent.
43. On the limb of whether the applicant will suffer irreparable injury unless the injunction is granted, it is the applicant’s case that she stands to suffer irreparable harm that cannot be adequately compensated by damages. There is no rebuttal by the respondent on this issue. Considering the fact that the words published relate to a serious condition that carries a great stereotype amongst people and that the words also impute an immoral conduct and criminal wrongdoing indeed harm will be suffered and cause her unconscionable embarrassment in the public that cannot be compensated by damages.
44. On the same basis, I find that the balance of convenience tilts in favor of granting the temporary injunction.
45. The applicant has deposed in her supporting affidavit that the defamatory statements by the respondent are continuous and ongoing and unless an order of temporary i
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IN THE HIGH COURT OF KENYA AT KWALE
CIVIL SUIT NO. E004 OF 2026
(Coram: Andayi W. F., J.)
MARY MUTHEU alias MARION……………...........................…PLAINITFF/APPLICANT
VERSUS
KERSTIN GEYER.................................................................... DEFENDANT/RESPONDENT
RULING
1. The plaintiff’s/applicant’s Notice of Motion dated 19 th February 2026 seeks an order of temporary injunction to restrain the defendant/respondent, her servants, agents, employees, associates, proxies or any one person acting under her instructions or authority from publishing or disseminating any defamatory statements concerning the applicant and from harassing, contacting, intimidating, or in any way interfering with the applicant or with Title Number Kwale/Diani/2447 (Tumaini Residence) including entering, occupying, managing, funding or facilitating any person to deal with the said property pending the hearing and determination of the suit.
2. The application is brought under Order 40 Rule 1, 2 and 3 of the Civil Procedure Rules, 2010.
3. The grounds in support of the application are set out on the face of the application and expounded in the supporting affidavit sworn on 19 th February 2026 by Mary Mutheu alias Marion, the applicant and a further supporting affidavit sworn by Josephat Amol on 19 th February 2026. There is filed what is supposed to be a further supporting affidavit by Mary Mutheu alias Marion dated 9 th March 2026.
4. The first grounds is that the applicant is the registered proprietor and resident of Title /Number Kwale/Diani/2447 (Tumaini Residence). She has however not provided any documentary proof such as document of title to confirm the deposition that she is a registered proprietor of the property. That the respondent has financed and supported persons who have refused to vacate the property posing a real and immediate risk to her safety and she has continued to interfere with her residence in the stated portion of land.
5. She deposes further that the respondent was previously married to one Levy Amudala but divorced in the year 2023. Although she deposes that copy of the certificate of divorce was attached to the supporting affidavit as “MM001” no such document is annexed. What is annexed instead is marked as “MM002” which are screenshots of Whatsapp communications.
6. Further that the respondent has on diverse dates published defamatory statements concerning the applicant The defamatory statements allege that she is a prostitute, HIV positive and that she killed her late husband Helmut Hamm.
7. The applicant thus prays that interim restraining orders be issued against the respondent and unless the interim restraining orders are issued the defamatory statements and interference in the property will continue and escalate.
8. In further support of the application, Josephat Amol, deposes that he is known to both parties herein and is a friend to one Levy Amudala who was married to the respondent but are currently divorced and is now married and or in a relationship with the applicant herein. He deposes to have received WhatsApp messages on diverse dates from the respondent concerning the applicant from the mobile phone number 0716 284 060. The statements read “ Hemult had aids I know it, I don’t want my hubby to screw this hoe, did you drop MARION today at Safina with Levi? She has aids u know it, she has aids you know that.”
9. The deponent deposes that the statements made appeared to be defamatory and were presented to him as factual assertions. The deponent annexed to his further supporting affidavit the Whatsapp extracts of the communication as “JA-001.”
10. The application is opposed by the respondent through a replying affidavit sworn on 3 rd March 2026 by Kerstin Amudala as well as a Notice of Preliminary Objection dated 14 th April 2026. The respondent in the replying affidavit deposes that the application is incompetent and a total abuse of the process of the court.
11. In response, she deposes that the proprietor of the suit property Kwale/ Diani/2447 is one Sebastian Hamm and not the applicant herein. Copies of a Judgment, memorandum of appeal filed at the ELC Kwale Court and Green Card were annexed as “KG-1,” “KG-2” and “KG-3” respectively to her replying affidavit. She confirms that the applicant was married to Helmut Hamm since, deceased, whereas she was married to Levi Amudala until 2025 when a Certificate of Making Decree Nisi Absolute was issued following their divorce. She has annexed to the replying affidavit a copy of the certificate of marriage between the applicant and Sebastain Hamm and certificate of death of Sebastian Hamm were annexed as KG-4 and KG-5 respectively.
12. The respondent deposes that the WhatsApp extract annexed to the applicant’s affidavit and further affidavit of Josephat Amol is a private conversation between a 3 rd party and herself and that the applicant’s legal name Mary Mutheu Chege is not referred to anywhere in the conversation. Further that it cannot be ascertained that the number 0715082488 that received the messages belongs to Josephat Amol.
13. The respondent avers that the applicant’s deceased husband had transferred ownership of the property claimed by the applicant to his son, Sebastian Hamm, in 2018 and the succession petition filed in Kwale High Court P & A No. E005 of 2025, In the matter of Helmut Hamm (Deceased) is fictitious. Copies of the Petition for letters of Administration Intestate are annexed as KG-6 and KG-7.
14. The respondent deposes that the present suit is time barred as it was filed more than one year after the alleged defamatory words were made.
15. The applicant filed a what is supposed to be further affidavit sworn by Mary Mutheu on 9 th March 2026 in response to the replying Affidavit. However, the same is not commissioned by a Commissioner for Oaths as required under section 5 of the Oaths and Statutory Declarations Act (Cap. 15) Laws of Kenya. I am in agreement with the High Court’s decision in the case of In re MWO (Minor) [2021] KEHC 13571 (KLR) where the court said that the legal requirement that an affidavit be commissioned and the failure to do so cannot be dismissed as a mere procedural technicality that can be ignored or overlooked by the court. The supposed further affidavit by the applicant is therefore only a statement of facts and not evidence capable of rebutting the depositions by the respondent in her replying affidavit.
16. Parties agreed to file written submissions on both the Notice of Preliminary Objection dated 14 th April 2026 and the application dated 19 th February 2026 and for the same to be disposed of at the same time.
17. Learned Counsel for the applicant filed written submissions dated 10 th March 2026. Learned counsel submits that the applicant’s claim for defamation is grounded in the Defamation Act (Cap. 36 Laws of Kenya) which protects individuals from the publication of statements that injure their reputation. Counsel submits that the respondent has circulated the allegations imputing serious disease, immoral conduct and criminal wrongdoing which statements are defamatory of the applicant. Counsel placed reliance on the cases of Giella v Cassman Brown & Co. Ltd [1973] EA 358 and Nguruman Limited v Nielsen & 2 others [2014] KECA 606 (KLR) . Learned counsel submits that the applicant has established a prima facie case with a probability of success and irreparable harm.
18. Further counsel relied on the case of Nyagah v Imanyara [2013] KEHC 6662 (KLR) where the court held that malice can be inferred from a deliberate or reckless or even negligently ignoring of facts. Counsel submitted that the respondent’s conduct is an intrusion in to the applicant’s private life guaranteed under Article 31 of the Constitution and the right to human dignity under Article 28 of the Constitution.
19. Regarding the issue of the land occupied by the applicant, learned counsel submits that, the applicant’s proprietary rights as a registered proprietor are protected under the Land Registration Act (Cap. 300) Laws of Kenya which recognizes the right of a registered proprietor to peaceful possession and enjoyment of land.
20. On the Notice of Preliminary Objection counsel submitted that the argument is misplaced. The defamatory allegations complained of are continuous and each repetition or republication of a defamatory statement constitutes a fresh action.
21. Learned counsel submitted that the applicant stands to suffer irreparable harm that cannot be compensated by monetary damages as it damages the reputation, dignity and personal security. Counsel prays that the application be allowed and costs be granted.
22. Learned counsel for the respondent filed submissions dated 15 th April 2026 and raised 2 issues for determination. On whether the applicant’s application is merited counsel relied on the case of Kamunge v Gachari [2016] KEHC 5119 (KLR) in which definitions of the torts of defamation are discussed and the ingredients required to prove defamation are outlined as set out in the case of John Ward v Standard Limited [2006] Kehc 2629 (KLR) where the High Court. JLA Osiemo, J. stated as follows:-
“A statement is said to be defamatory when it has a tendency to bring a person to hatred, ridicule, or contempt or which causes him to be shunned or avoided or has a tendency to injure him in his office, profession or calling. The ingredients of defamation are:-
i. The statement must be defamatory.
ii. The statement must refer to the plaintiff.
iii. The statement must be published by the defendant.
iv. The statement must be false.”.
23. Learned counsel submitted that the words complained of are not defamatory as alleged. Further that the WhatsApp conversation annexed to the affidavits supporting the application was not sent to the applicant’s WhatsApp account. That the entire application is hearsay and borderline gossip.
24. On the preliminary objection counsel submitted that the claim is time barred by virtue of Section 4 (2) of the Limitations of Actions Act which required an action of libel or slander be brought within 12 months from the date of the cause of action. Counsel submitted that the WhatsApp conversation was shared way back in 2023 and more than 3 years have passed. Counsel therefore urged that the court lacks jurisdiction and should proceed to down its tools.
25. I have considered the application and the response thereto by the respondent as well as the submissions by learned counsels. The issues for determination in this application are:
i. whether the preliminary objection dated 14 th April 2026 is merited.
ii. Whether the conditions for issuance of temporary injunction in a defamation suit have been met by the applicant.
26. The respondent filed a preliminary objection dated 14 th April 2026 stating that:
i. The suit is time barred by dint of Section 4 (2) of the Limitations of Actions Act (Cap. 22) Laws of Kenya.
ii. The present suit and application filed be struck out with costs awarded to the defendant.
27. The preliminary objection raised to the applicant’s suit by the respondent is based on the proviso to section 4(2) of the Limitation of Actions Act, (Cap. 22) Laws of Kenya which provides that:
4(2). An action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued:
Provided that an action for libel or slander may not be brought after the end of twelve months from such date.”
28. The law on preliminary objections is as set out in the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 , where the Court stated;
“A preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of the pleadings, and which if argued as a preliminary point may dispose of the suit. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.
29. The issue of limitation of time raised by the respondent is an issue of law that is capable of finally disposing of the suit because the object of a statute of limitation is to bar stale claims from being prosecuted. Crabbe JA in the case of Mehta v Shah [1965] EA 321 at p 330 , stated that the object of any limitation enactment is to prevent a plaintiff from prosecuting “stale claims on the one hand, and on the other hand protect a defendant after he had lost evidence for his defence from being disturbed after a long lapse of time.” In Masulal Maganlal Rawal v Maneklal Maganlal Rawal [1989] KEHC 93 (KLR) it was explained further that the object is not to extinguish claims. Further, in the case of Gathoni v Kenya Co-operative Creameries Ltd [1982] KECA 10 (KLR) the Court of Appeal explained that, the law of limitation of actions is intended to protect defendants against unreasonable delay in the bringing of suits against them. The statute expects the intending plaintiff to exercise reasonable diligence and to take reasonable steps in his own interest. Therefore, where it is found that indeed the suit is time barred then, as submitted by learned counsel for the respondent, the court loses the jurisdiction to grant the reliefs sought and the same is finally disposed of by being dismissed finally without proceeding further because the case lacks merit since it is barred by statute.
30. The High Court in the case of Oraro v Mbaja [2005] KEHC 3182 (KLR) pronounced itself as follows on how a preliminary objection ought to be established:
“I think the principle is abundantly clear. A “preliminary objection”, correctly understood, is now well identified as, and declared to be a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion which claims to be a preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the Court should allow to proceed. I am in agreement with learned counsel, Mr. Ougo , that “where a Court needs to investigate facts, a matter cannot be raised as a preliminary point.” This legal principle is beyond dispute, as there are divers weighty authorities carrying the message.”
31. It is the respondent’s assertions that the WhatsApp conversation sought to be relied on was shared way back in 2023 and more than 3 years have lapsed contrary to section 4 (2) of the Limitations of Actions Act. The applicant in response states that the allegations complained of are continuous in nature and each defamatory statement constitutes a fresh cause of action.
32. I have perused through the WhatsApp conversation annexed as “M002” in the supporting affidavit and repeated as “JOO1” in the further supporting affidavit which contain the alleged defamatory publication and therefore the basis of the suit filed herein. I notice that the extracts do not show the date, perhaps out of the manner in which they were extracted rather than the date being not ascertainable. It is therefore not possible at this point in time, based on those copies to know when both were sent to the recipient. Even then, the applicant has not annexed any recent communication to show the continuous nature of the allegations complained of. I have also considered the plaint and I do not find any particular date on which the alleged defamatory words were published.
33. Regarding the assertion by the respondent that the conversation was shared in 2023 similarly I do not see any documentation or communication in support of this position. Hence, the issue of the time frame of when the conversation was had and shared is one that needs to be proved by way of factual evidence to ascertain whether or not the claim for defamation is time barred and not by way of the preliminary objection.
34. On that basis, I find that the preliminary objection has no merit and the same is dismissed.
35. Turning to the application for interlocutory injunction in a defamation suit, the traditional conditions to be met by a party seeking a temporary injunction are set out in the case of Giella v. Cassman Brown Co. Ltd [1973] EA 358 to wit: -
a. Has the applicant established a prima facie case with a probability of success?
b. Will the applicant suffer irreparable injury unless an injunction is issued? and,
c. where there is doubt in the mind of the court the application will be determined depending on where the balance of convenience lies.
36. Grant of an interlocutory injunction in a defamation suit however goes beyond the traditional grounds as set out in Giella (supra). In Gatley on Libel and Slander 12 th edition, Sweet and Maxwell, at paragraph 2f.2, guidance is given on what the court ought to consider in determining whether or not to grant an interlocutory injunction on defamation cases. In short, the court must be satisfied;
i. That the statement is unarguably defamatory.
ii. That there are no grounds for concluding the statement to be true;
iii. That there is no other defence which might succeed;
iv. That there is evidence of an intention to repeat or publish the defamatory statement.
37. Courts have considered this issue and laid down several factors to be taken into account. In Renton Company Limited v Philip Kisia & 2 Others [2012] KEHC 2808 (KLR) , Odunga, J. (as he then was) extensively discussed when a temporary injunction may or may not be issued at the interlocutory stage as follows:
“The freedom of expression is enshrined in Article 33(1)(a) of the Constitution which provides that every person has the right to freedom of expression, which includes freedom to seek, receive or impart information or ideas. However, that freedom is limited by clause (3) thereof which provides that in the exercise of the right to freedom of expression, every person shall respect the rights and reputation of others.
It, therefore, follows that in suits for defamation the Courts must weigh between the freedom to express oneself and impart information against the respect for others’ rights and reputation. Where a person alleges that what was said is true, for example, to gag the dissemination of the information may be as detrimental as to allow false information to be published to the detriment of one’s reputation. Reputation once lost, it must be recognized may not be regained. The grant of interlocutory injunctions in defamatory cases, though follow the general principles in applications for interlocutory injunctions, have been modified to suit the unique subject of defamation. This principle cannot be expressed better than Khamoni, J in Micah Cheserem vs. Immediate Media Services & 4 Others Nairobi HCCC No. 398 of 2000 [2000] 2 EA 371 in which the learned Judge expressed himself as follows:
“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 injunction as set out in the case of Giella vs. Cassman Brown & Co. Ltd. [1973] EA 358 generally apply…In defamation cases, those principles apply together with the 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 the clearest possible cases: the Court must be satisfied that the words complained of are libellous 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 defamatory cases is that the action for defamation bring out conflict between private interest and public interest, and 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”.
The same Judge in Francis P. Lotodo vs. Star Publishers & Another Nairobi HCCC No. 883 of 1998 had this to say:
“An injunction will not be granted where the defendant pleads justification unless the Court can be sure that his defence cannot be sustained at the trial and that the plaintiff will receive more than nominal damages, even if the publication, if true, would clearly be libellous…To justify the Court in granting an interim injunction, it must come to a decision upon the question of libel or not and therefore the jurisdiction is of a delicate nature and ought only to be exercised in the clearest cases…The court would not restrain the publication of an article, even though it was defamatory, when the defendants said that they intended to plead justification or fair comment…The discretion will not in general be exercised unless there is “a strong prima facie evidence that the statement complained of is untrue” for “until it is clear that an alleged libel is untrue, it is not clear that any right at all has been infringed.”Where the words are prima facie privileged, the Court should not grant an interlocutory injunction unless the Court is clearly satisfied that the defendant was actuated by malice. When the defendant says that he is going to justify the words complained of, there is an end of the case so far as an interim injunction is concerned…The decision in Giella vs. Cassman Brown & Company Ltd. [1973] EA 358 at 260 unlike the English cases, is binding on the Courts in all cases of injunction including defamation… The burden of proof that the inconvenience which the plaintiff will suffer by the refusal of the injunction is greater than that which the Defendant will suffer if it is granted lies on the plaintiff… Under Section 79(1) of the Constitution, the rights, principles and conditions enshrined therein free from the drastic interference that may be lost by the granting of an interlocutory injunction, unless there is a substantial risk of grave injustice and the private interest in preventing the publication the applicant seeks to prevent outweighs the public interest”.
In Gilgil Hills Academy Ltd vs. The Standard Ltd Nakuru HCCC No. 88 of 2009 Maraga, J (as he then was) expressed himself as follows:
“At the stage of an application for injunction the court is not able, nay, supposed to make any definitive findings. If it is an ordinary suit, what would be required of the court at that stage is to determine whether, from the pleadings as well as counsel’s submissions, the plaintiff has made out a prima facie case with a probability of success and if so whether a denial of an injunction will cause the plaintiff irreparable loss which cannot be adequately compensated by an award of damages. If the answer to these questions would be in the affirmative, then the plaintiff would be entitled to the injunction and vice versa…This being a defamation case, however, an array of other factors fall for consideration and only two are relevant to this case. They are the public interest in the matter and whether, on the material before the court at this stage, it is clear that the alleged defamatory publication is true or not…On the factor of public interest it is trite law that public interest demands that truth should be out. For that reason, it is in the public interest that individuals should possess the right of free speech, and, indeed, that they should exercise it without impediment. So that that right is not whittled down, the jurisdiction to grant an injunction at an interlocutory stage is a delicate and special one and ought to be exercised only in the clearest of cases…Needless to say that that individual right of free speech or of freedom of expression is enshrined in section 79 of the Constitution. That section, however, provides riders and the one relevant to this case is the protection of the reputation and right of others…In deciding whether or not to grant an injunction, each case should be considered on its own peculiar facts bearing in mind the fact that whether or not the defence of justification and or fair comment will hold is for the court to decide after hearing the case. 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 words complained of are untrue…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”
In Dr James Obondi Otieno vs. Nation Media Group Limited Kisumu HCCS No. 7 of 2005 (Mwera, J was the view that unless the nature of the defamation is the continuing one, acts of defamation, being ordinarily singular, nothing is to be served by issuing an injunction.”
38. Additionally, in the case of Lenaola vs Muigai [2025] KEHC 18768 the Court at paragraph 25 pronounced itself as follows on the issue of temporary injunctive orders in defamation suits;
“ Recently, in Ejidio Kinyanjui v. National Media Group & 2 Others [2025] KEHC 17466 (KLR), I similarly held that in defamation suits, an interlocutory injunction will issue, where the Application has satisfied the legal threshold in Giella, and additionally also demonstrated that there exist exceptional factors or circumstances that make the grant of the injunction, most compelling and most inviting. I then enumerated some of such exceptional circumstances as including and not limited to the following:
a. Where the Defendant’s utterance of the said statements or utterances against the Plaintiff, has been habitual or repetitive- hence giving rise to a reasonable fear of continuation. In such a case, unless the Defendant has offered to court a formal undertaking that he will not make any further such statements or utterances while the suit is pending, a court may issue the injunction;
b. Where the Defendant has continued making the same statements or utterances against the Plaintiff, unperturbed- even after the institution of the suit, and in spite of the suit;
c. Where there is a high likelihood that the Defendant will continue publishing or uttering the same statements or utterances against the Plaintiff, and is unlikely to stop, unless restrained by the court;
d. Where there is evidence of imminent or immediate threat of repeat publication.
e. The prejudice or loss the Defendant will suffer or is likely to suffer, if the injunction is granted;
f. Where the words or expression used in the impugned statements or utterances, are so oppressive, so harsh, so bullyish, so impunitous, or so insensitive; or
g. Where from their tone, the impugned statements or utterances are clearly laced with ill-will, malice, improper motive, vendetta, vengeance, bitterness, or they are clearly intended for retaliation or for the settling of scores or old grudges.
39. The applicant’s plea is that the respondent has published defamatory statements against her and has annexed WhatsApp extracts as “M002” in the supporting affidavit as proof. Further, annexure “JA-001” is also annexed to the further supporting affidavit as proof of the defamatory words. The words from the WhatsApp extract are as follows, “ Hemult had aids I know it, I don’t want my hubby to screw this hoe, did you drop MARION today at Safina with Levi? She has aids u know it, she has aids you know that.”
40. No doubt, these words impute immoral character and criminal wrong doing upon the subject under discussion. The words would therefore constitute an infringement of the subject’s right to human dignity guaranteed under Article 28 of the Constitution 2010 and the right to privacy under Article 31 of the Constitution 2010. The information shared through the WhatsApp message relates to the private affairs of the subject.
41. The respondent deposes that she shared the messages with the recipient in a private conversation and secondly that it has not been shown that they referred to the applicant. The applicant on her part has annexed an affidavit sworn by the recipient of the words who deposes that he knows that the subject of the words was the applicant. No doubt, evidence will be required at the hearing of the main suit to show that indeed the words were directed at the applicant.
42. At this interlocutory stage however, it has not been denied that the words are defamatory and so far no defence of truthfulness or justification of the said words, qualified privilege or fair comment has been raised. On that basis, I am inclined to find that a prima facie case with a probability of success has been established subject to the issue of when the words were published being established to have been within the limitation period and any defences available to the respondent.
43. On the limb of whether the applicant will suffer irreparable injury unless the injunction is granted, it is the applicant’s case that she stands to suffer irreparable harm that cannot be adequately compensated by damages. There is no rebuttal by the respondent on this issue. Considering the fact that the words published relate to a serious condition that carries a great stereotype amongst people and that the words also impute an immoral conduct and criminal wrongdoing indeed harm will be suffered and cause her unconscionable embarrassment in the public that cannot be compensated by damages.
44. On the same basis, I find that the balance of convenience tilts in favor of granting the temporary injunction.
45. The applicant has deposed in her supporting affidavit that the defamatory statements by the respondent are continuous and ongoing and unless an order of temporary i
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