Minister's bid to gag press dismissed

Court refuses to grant interim injunction in libel case

Francis P. Lotodo v Star Publishers & Anor.
Civil Case NO 883 of 1998
High Court of Kenya at Nairobi
12 May 1998

The High Court of Kenya, J. M. Khamoni J, presiding, held that the right to freedom of expression, especially the right of the press to make fair comment on matters of public interest, should not be unduly interfered with through the grant of interlocutory injunctions, as a court could not predict and prejudge all the elements of the defence to be adduced by a defendant in the main trial.

Facts

The plaintiff/applicant, a Kenyan government minister, had filed a libel suit against the defendants/respondents alleging that they had published libellous articles against him in various issues of their publication. While the main suit was still in its early stages and pleadings had not yet closed, the plaintiff/applicant applied for an interim injunction restraining the defendants from repeating, publishing, re-publishing, disseminating or re-disseminating the words complained of in the main suit. There was no dispute that these words had been published, but the defence advanced was that the words were not defamatory and that even if they were, the words were published under qualified privilege of newspapers and therefore the applicant had no case against the respondents

Kenyan lawyer, James Orengo defended newspaper

Decision

The court pointed out that under Kenyan law, s 7 (1) of the Law of Defamation Act (Chapter 36), newspapers had qualified privilege if what was published was a fair and accurate report on a matter of public interest, unless malice was proved; and that qualified privilege was not lost even if a matter defamatory to a plaintiff was included. Although the qualified privilege could be lost if the plaintiff demand-ed an explanation or contradiction under s 7(2) of the Act, which was not forthcoming from the defendant, there was no evidence of this having been the case. Such evidence was presumably to be adduced at the hearing of the main suit.

The court cited with approval the decision of the English Court of Appeal in Bonnard & Anor v Perryman (1891-4) All ER 965, which held, in a case where a temporary injunction had been sought, that: "Although the publication, if true would clearly be libellous, an interlocutory 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 the Plaintiff will receive more than nominal damages…" An injunction could be granted only "in the clearest of cases." The court also cited Fraser v Evans & Ors. (1969) 1 All ER 8, where the Court Appeal held that it "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 court also made reference, inter alia, to Mr. Richard Kuloba's book Principles of Injunctions, where the author states, "The importance of leaving free speech unfettered is the strong reason in cases of defamation for dealing most cautiously and warily with granting temporary injunction. So no injunction will be granted where the Defendant swears that he will be able to justify the words and the court cannot say whether the libel or slander complained of is untrue." The court pointed out that although under English law interlocutory injunctions founded on defamation were treated as a special category, in Kenya they were lumped together with other injunctions with similar principles applying to all. In this regard, the leading case was Giella v Cassman Brown & Co Ltd. (1793) E.A. 358, which laid down three conditions for the grant of interlocutory injunctions.

These were that first, the applicant must show a prima facie case with a probability of success. Second, an interlocutory injunction could not issue unless the applicant showed that he might otherwise suffer irreparable injury, which would not be adequately compensated by an award of damages. And thirdly, if the court were in doubt, it would decide an application on the balance of convenience. Applying these conditions to the present case, the court found that it was not in a position to say whether the applicant had a strong prima facie case, since the pleadings in the main suit had not yet closed. Similarly, the court had no evidence upon which to rule whether the applicant would suffer irreparable harm. Turning to the balance of convenience, the court held that the competition in the matter was between private interest and public interest, citing dicta from both Bonnard and Fraser.

In Bonnard, the court had pointed out that the right of free speech was one which it was for the public interest that individuals should possess and should exercise without impediment, so long as no wrongful act was done. And "Until it is clear that an alleged libel is untrue, it is not clear that any rights at all have been infringed; and the importance of leaving free speech unfettered is a strong reason in cases of libel for dealing most cautiously and warily with the granting of interim injunctions." In Fraser, Lord Denning M.R. had put it laconically: "There is no wrong done if it is true, or if it is fair comment on a matter of public interest." He added that there were some things that were of such public concern that everyone, including the press, was entitled to make the truth known and to make fair comment on it; and such a right must not be whittled away.

Referring to s 79 (1) of the Kenya Constitution, which deals with freedom of expression, the court held that the rights under discussion were not only constitutionally protected, but were also of universal application. "[They] should be enjoyed by every news media, journalists and every Kenyan free from the drastic interference that may be caused by an interlocutory injunction, unless there was a substantial risk of grave injustice and the private interest in preventing the discussion outweighs the public interest." The court concluded that in the instant suit the public interest far outweighed the private interest of the applicant thereby making the balance of convenience tilt more heavily in favour of the respondent against the applicant. The application was therefore dismissed with costs.

Commentary

The Lotodo ruling has been received with relief in Kenyan media circles. It comes at a time when governments in the region are continually evolving new forms of censorship to thwart free expression and increasingly resorting to using prior restraint orders against newspapers. The trend has been especially prevalent in Kenya, Tanzania and Zambia (See Taking Stock, SAMLB, vol. 3, No. 3, August 1998, p 6). But the decision is disappointing in the sense that although it pointed out the importance of freedom of expression, the court stopped short of unequivocally stating that interlocutory injunctions in defamation cases should be treated as a special category as is the case in England. It instead used the same old case of Giella as the precedent, despite that the fact that Giella had nothing to do with libel. The court also missed a unique opportunity to state that the media needed more latitude to report on public figures that it did on private individuals. The plaintiff/applicant in this case was a government minister, a fact mentioned only once in passing by the court, and which had no bearing on the its final decision. But as this was only an application for interim relief, it is hoped that the issue shall be satisfactorily addressed in the main suit.

Njonjo Mue, Article 19,
with James Orengo, Practising Advocate,
Nairobi, Kenya.