Sylvia Anampiu v MTN Business Kenya Limited

3. The Respondent opposed the Petition vide its Replying Affidavit sworn by Betty Kerubo, its Head of Legal. She deposed that the interim conservatory order is made in a vacuum since there is no corresponding prayer in the Petition for permanent injunction; which renders the Application fundamentally defective. She termed both the Application and the suit as an abuse of court process in that: the Petition raises no constitutional issue that would otherwise not be adequately remedied within an ordinary suit under the Employment Act and the Defamation Act, CAP 36 Laws of Kenya; the question of defamation is one that can only be determined substantively on its merits at trial and not at interlocutory stage; the Petitioner has not demonstrated exceptional circumstances warranting the intervention of this Court at the interlocutory stage, more so, since the offending correspondence was published several months prior to the filing of the Application and no further publication has occurred; if the reliefs sought are granted, it would have the effect of finally determining the substantive issues in the Petition without affording the Respondent a full hearing. 4. The affiant deposed that the Application is fatally flawed and ought to be dismissed at the outset on the above stated grounds. She added that the Applicant has failed to satisfy the requirements for grant of interim conservatory orders. She stated that the Petitioner has grounded the Application on Exhibit SA5, a responding letter from the Respondent’s advocates to the Petitioner’s former advocates M/s Diro Advocates LLP. She urges that the said letter lowered her reputation in the eyes of the Public or exposed her to hatred, ridicule or contempt as alleged. She added that the ELRC PET E161 OF 2026 - RUL 2

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letterwas a mere response to the Advocates’ demands and cannot be construed as defamatory. 5. She stated that the Petitioner was in January 2026 appointed by Safaricom Limited as its Director of Fixed Business, which appointment contradicts the claim that the conduct damaged her employment prospects. She termed the failure to disclose the appointment as a material non-disclosure. She added that the deliberate suppression of the fact disentitles her of the equitable relief sought. The affiant added that reliance of the response is misconceived as the Petitioner has failed to demonstrate malice on the part of the Respondent’s; and thus, no arguable cause of action in defamation can be sustained. She further deponed that the claim is founded on alleged reputational injury and loss of employment prospects, both of which are compensable in damages. 6. The affiant deposes that the balance of convenience weighs decisively against the grant of the orders. She further contended that issuance of the orders would operate as a restraint on the Respondent’s freedom of expression, which should not be imposed except in exceptional circumstances. On housing allowance and alleged discrimination in application of lifestyle benefits allowances, under paragraphs 3 and 9 of the Supporting Affidavit, she deposed that they can only be determined on merit at trial. She urged that the application was devoid of merit and ought to be dismissed with costs to the Respondent. Submissions ELRC PET E161 OF 2026 - RUL 3

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7. The Applicant’s counsel submitted on the following issues: (i) whether the Petition meets the threshold of a constitutional petition; (ii) whether the Petitioner’s constitutional rights have been violated; (iii) whether the Petitioner is entitled to the reliefs sought; and (iv) who should bear costs of the Petition. 8. On the first issue, it was submitted that the Petition met the threshold set out in the Anarita Karimi Njeru v Republic [1979] case and the Mumo Matemu v Trusted Society of Human Rights Alliance [2013] eKLR. 9. On the second issue, reliance was placed holding in Dina Management Limited v County Government of Mombasa & 5 others [2023] and Kalaiya & another v Nairobi Metropolitan Services & 2 others [2025] KEHC 7959 (KLR). 10. On the third issue, reliance was placed on Gitobu Imanyara & 2 others v Attorney General [2016] eKLR on the remedies for constitutional violations, to submit that the Court has discretion to determine the necessary remedies to uphold constitutional rights. 11. On costs, reliance was place on Section 27 of the Civil Procedure Act. 12. Counsel for the Respondent submitted on: (i) whether an interim conservatory order should issue; (ii) whether an order of interim conservation can be granted in vaccum without a corresponding substantive prayer; and who bears the costs of the Application. ELRC PET E161 OF 2026 - RUL 4

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13. On the first issue, reliance was placed on Giella v Cassman brown & Co. Ltd [1973] EA 358 on requirements for grant of injunction. It was submitted that the Petitioner has failed to show the existence of a prima facie case. Reliance was placed on the definition of prima facie case as was in the decision in Mrao v First American Bank of Kenya Limited & 2 others [2003] KLR 125. On the defamatory remarks, reliance was placed on Munster v Lamb (1883) 11 QBD 588 and Watson v M’Ewan [1905] AC 480 on privilege of judicial proceedings. Further reliance was placed on the decision in Manyanyi v Liguyani [2025] KEHC 16118 (KLR). Counsel added that the Applicant had failed to examine and exhibit how the contents of the statements complained of satisfied a case for defamation. 14. Counsel argued that the Applicant had failed to demonstrate the essential elements of defamation being: the precise words alleged to be defamatory; the defamatory meaning conveyed by the words; publication of the words to any third party; malice on the part of the Respondent; or any actual injury to her reputation as a result of the publication. Counsel urged that the Applicant bore burden to prove the elements as set out in the Defamation Act. 15. It was further submitted that the Applicant had failed to prove that the alleged statements were published to any third party or communicated to any other party other than her advocates. Reliance was placed on Samuel Kimani Mutu vs Abraham Mwangi Mutu & 10 others [2017] eKLR which relied on the decision in Stephen Juma and another vs Executive Committee ELRC PET E161 OF 2026 - RUL 5

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Kenya Sugar Growers Association, Kisumu High Court Civil Suit Number 5 of 2004. 16. On need for full disclosure when seeking equitable remedies, reliance was placed on Kenlab Cons Ltd v New Gatitu Service Station Ltd & another [1990] KEHC 53 (KLR). It was submitted that the Applicant’s failure to disclose her new job weakened her the basis upon which the reliefs were sought. It was urged that even if the Applicant were to show a prima facie case, no irreparable injury would be occasioned if the Application was declined. On irreparable injury, reliance was placed on Arjan & another v Letura & 3 others [2026] KEELC 3997 (KLR). It was added that there was no demonstration of a continuing injury as the alleged offending communication was a single response letter. 17. It was submitted further that the delay in filing the application negated the claim of imminent harm requiring urgent intervention of this Court. Reliance was placed on Kenya Union of Domestic Hotel Educational Institutions, Hospitals and allied Workers George Chesire & 84 others v Nairobi Club [2015] KECA 477 (KLR). 18. It was further submitted that the Respondent was likely to suffer substantial prejudice if the Application was allowed, as the orders would restrict it from being able to advance its position and defend itself. 19. On the balance of convenience, it was submitted that the test favoured the Respondent. Reliance was placed on Jennifer Nyambura Kamau vs Humphrey Mbaka Nandi NYR CA Civil ELRC PET E161 OF 2026 - RUL 6

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Appeal No. 342 of 2010 [2013] eKLR. In urging the Court to disregard the Application and allow the issues to be determined on merit at hearing, reliance was placed on Barke Limited & another v Berner & 2 others [2026] KEELC 4129 (KLR). 20. On the second issue, it was submitted that the Application ought to be struck out for lack of a corresponding prayer in the Petition. Reliance was placed on the decision James Archimedes Gichana vs Pyrethrum Board of Kenya Nakuru HCCC No. 237 of 2007. As such, the Court was urged to dismiss the Application with costs as granting the order would be tantamount to making an order in a vacuum. 21. On costs, reliance was placed on Civil Case No. 17 of 2014 Cecilia Karuru Ngayu vs Barclays Bank of Kenya & another [2016] eKLR. 22. The issues for determination are (i) whether the Applicant has laid basis for grant of orders sought; and (ii) whether the Application is merited. 23. The form of defamation claims is provided for under Order 2 Rule 7 of the Civil Procedure Rules, and it provides that: (1) Where in an action for libel or slander the plaintiff alleges that the words or matters complained of were used in a defamatory sense other than their ordinary meaning, he ELRC PET E161 OF 2026 - RUL 7

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shall give particulars of the facts and matters on which he relies in support of such sense. (2) Where in an action for libel or slander the defendant alleges that, in so far as the words complained of consist of statements of fact, they are true in substance and in fact, and in so far as they consist of expressions of opinion, they are fair comment on a matter of public interest, or pleads to the like effect, he shall give particulars stating which of the words complained of he alleges are statements of fact and of the facts and matters he relies on in support of the allegation that the words are true. (3) Where in an action for libel or slander the plaintiff alleges that the defendant maliciously published the words or matters complained of, he need not in his plaint give particulars of the facts on which he relies in support of the allegation of malice; but if the defendant pleads that any of those words or matters are fair comment on a matter of public interest or were published upon a privileged occasion and the plaintiff intends to allege that the defendant was actuated by express malice, he shall file a reply giving particulars of the facts and matters from which the malice is to be inferred. (4) This rule shall apply in relation to a counterclaim for libel or slander as if the party making the counterclaim were the plaintiff and the party against whom it is made the defendant. ELRC PET E161 OF 2026 - RUL 8

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24. The words complained about by the Applicant are contained in the letter by the Respondent’s advocates dated 16 th March 2026 under the clause on House allowance from paragraphs 3-5 as follows: “… However, our client subsequently discovered that Sylvia declined and/or failed to ensure that the corresponding addendum to her own contract of employment was executed as an employee. Our client’s position is that Sylvia’s conduct, specifically her failure to execute the addendum to her employment contract, was deliberate and constituted an act of bad faith designed to facilitate and support a subsequent claim for house allowance, notwithstanding the clear understanding that her remuneration, consistent with all other employees, was consolidated. On the basis of the demands now received from Sylvia, our view is that your client deliberately failed, relying on the seniority of her position, to ensure execution of an amendment to her own employment contract in order to retaliate against her former employer through claims and disputes such as the one brought by the demand, which brings into question her integrity as a leader.” 25. From the Motion and the Affidavit, the Petitioner has not clearly outlined the particulars of defamation. In addition, a close look at the Application reveals that the Applicant is not per se pursuing a claim for relief, rather, a gag order. It is therefore important to understand the scope of conservatory orders. In Munya v Kithinji & 2 others [2014] KESC 30 (KLR) held that: 85.These are issues to be resolved on the basis of recognizable concept. The domain of interlocutory orders is ELRC PET E161 OF 2026 - RUL 9

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somewhat ruffled, being characterized by injunctions, orders of stay, conservatory orders and yet others. Injunctions, in a proper sense, belong to the sphere of civil claims, and are issued essentially on the basis of convenience as between the parties, and of balances of probabilities. The concept of “stay orders” is more general, and merely denotes that no party nor interested individual or entity is to take action until the Court has given the green light. 86.“Conservatory orders” bear a more decided public-law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the Court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues as “the prospects of irreparable harm” occurring during the pendency of a case; or “high probability of success” in the supplicant’s case for orders of stay. Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes. Emphasis supplied. 26. From the facts of the case and the foregoing, it is necessary to determine whether there is any element of public interest and/or, constitutional and the magnitude of the issues at hand as instant case, none of the issues arise perhaps because the alleged defamatory statements were made in a party, In the Courts view a gag order would paralyze the Respondent’s as it would be barred from raising defence and as such would not be in the interest justice. ELRC PET E161 OF 2026 - RUL 10

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In the end, it is the finding of the court that the instant application is bereft of merit and it is dismissed with no orders as to costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 28TH SEPTEMBER, 2026 DR. JACOB GAKERI JUDGE ORDER In view of the declaration of measures restricting court operations due to the COVID19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21 st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. DR. JACOB GAKERI JUDGE ELRC PET E161 OF 2026 - RUL 11

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