By Newton Arori
An interlocutory injunction is a court order restraining a party from doing certain acts pending the determination of a case. It is a pre-trial remedy whose purpose is to maintain the status quo until the suit has been concluded. For example, suppose there is a dispute over the ownership of a car between X and Y, where X is currently in possession of the vehicle and is planning to customise it. Y may move to court and obtain an interlocutory injunction restraining X from making any modifications to the car until the ownership dispute is resolved.
To succeed in an application for an interlocutory injunction, one must satisfy the certain requirements as laid down in the classic case of ‘Giella v Cassman Brown Ltd (1973) E.A 360’. First, the applicant must show that there is a serious case to be tried with a probability of success. In other words, the case must not be frivolous or vexatious. The applicant must also show that s/he would suffer irreparable damage – that which cannot be quantified in monetary terms or cannot be cured – if the injunction were to be denied. Lastly, if the court is in doubt on the above 2 requirements, the application will be decided on a balance of convenience, that is, weigh which of the 2 parties will suffer the greater harm if the injunction is issued/denied. Public interest must also be considered in this third requirement.
Injunctions in defamation suits
In a defamation suit, the applicant will typically seek an interlocutory injunction to stop the publication of allegedly defamatory material pending the determination of the main case. This gives rise to one major complication: restriction of publication before the case can be decided seems to fly in the face of the constitutional freedoms of expression and the media. Unsurprisingly therefore, courts the world over show reluctance in giving interlocutory injunctions in defamation suits, as compared to ordinary suits.
The idea that courts should not too readily restrain publication goes back at least 100 years when, in ‘Bonnard v Perryman (1891) 2 ch 269’, the English Court of Appeal decided that in defamation actions, an interim injunction will issue only in exceptional circumstances. The bench led by Chief Justice Lord Coleridge opined that courts must not unnecessarily interfere with the right of free speech “which it is for the public interest that individuals should possess, and indeed, that they should exercise without impediment, so long as no wrongful act is done.”
Locally, ‘Bonnard v Perryman’ has been cited with approval in numerous decisions, perhaps most significantly in the case of Micah Cheserem v Immediate Media Services & 4 Others (2000) eKLR. Here, Justice Khamoni of the High Court was emphatic that in contrast to ordinary cases, an application for an interlocutory injunction in a defamation suit will be treated differently, because defamation cases bring out a conflict between private and public interest. The judge decided that though the conditions set out in Giella v Cassman Brown will apply, in defamation cases those conditions operate in special circumstances.
The above position finds support in the scholarly work, ‘Gatley on Libel and Slander’, whose authors argue that the court’s power to restrain publication is of “a delicate nature”. The book further sets out conditions to be fulfilled before a court should, in a defamation case, issue an interim injunction. First, the statement complained of should be unarguably defamatory; second, there should be no evidence that the person sued has a defence which might succeed at trial and third, there should be evidence of an intention to repeat or publish the defamatory statement.
This undoubtedly is a high threshold which has been applied by our courts, and justifiably so, to the detriment of many applicants seeking interim injunctions in defamation cases.
In ‘Gilgil Hills Academy v The Standard Limited (2009) eKLR’, the applicant, a school, approached the High Court in Nakuru in a suit filed against the Standard Group Limited. The school claimed that The Standard had, in their newspaper, published of the school stories “of highly defamatory character”. Gilgil Hills Academy wanted an interim injunction restraining the newspaper from further publishing the offensive material until the suit was concluded. Further publication, the school feared, might lead to pupils withdrawing from the school and therefore cause its closure. The trial judge, David Maraga, had no trouble dismissing the application. Not only was there no evidence that the stories complained of were untrue, but the fear that parents might withdraw their children from the school turned out to be unfounded.
The case of ‘Gotv Kenya v Royal Media Services Limited & 2 Others (2015) eKLR’ likewise involved an application for an interlocutory injunction within a defamation case. The applicants were pay TV channels who sued local TV stations. In an advert by Citizen TV, NTV, QTV and KTN, the TV stations alerted their viewers that Gotv and Startimes were, without consent, airing the TV stations’ content, and advised that the stations would soon launch their own set top boxes to freely distribute their TV signals to consumers.
In deciding the application, Justice Mabeya noted that as a general rule, courts are very cautious to grant injunctions in defamation cases, noting that the applicant (Gotv) had not proved the falsibility of the advert in contention. Needless to say, the interlocutory injunction application was dismissed, with costs.
In ‘William Kabogo Gitau v Standard Group Ltd & 8 Others (2011) eKLR’, the applicant sued the defendant for publishing a cartoon linking the plaintiff with violent crime and drug trafficking. The plaintiff succeeded in obtaining the injunction he proved the cartoon was unarguably defamatory, false and that the defendant had no defence that might succeed at trial. Most significantly, the applicant showed that the defendant was running a sequel on drug trafficking on its TV station under the series ‘Jicho Pevu’ and ‘KTN Undercover’. The court observed the defamatory content was likely to be repeated, and granted the injunction.
It is hoped that courts will continue to keep the bar high for the protection of the freedom of expression in the public interest. (