Htari Security Guards Limited v Standard Group Plc & 8 others

Kiswahili version of the same entitled “Tafrani ya vyuma vikuukuu: Ufichuzi kuhusu jinsi watu wanauawa katika Sakata ya wizi wa vuma” pending hearing and determination of this suit e) This honorable court be pleased to make any other order as the justice of this case may demand f) Costs of the application be awarded to the applicant. 2. The application is based on the grounds on the face of the motion and on the facts deponed in the supporting affidavit of Dr Steve Mwangi Kimani who stated that the plaintiff/applicant applied for interim orders which were granted by this court on 17/12/2020. 3. However, it is the submission of the applicant that despite being duly served with the said ruling the respondents have refused to comply with the said orders. The 1 st respondent failed to remove the digital traces of the features from its social media platforms, the 2 nd and 3rd respondents have also failed to delete the features and any commentaries of the same in their own social media pages. 4. The applicant further argued that the feature is still available to the general public thus the plaintiff/applicant continues to suffer loss and damage due to the defamatory statements made by the respondents. 5. The application is opposed by the respondent which filed grounds of opposition dated 13/4/2021 where the respondents argued that there have been no amendments sought or granted to introduce the 2 nd to 10th defendants herein and neither has the plaint been amended to reflect the names of the 2nd to 10 defendants and therefore orders cannot be sought against persons who have not been properly joined to the proceedings. 6. The respondents added that the injunction that was granted was a negative injunction where the respondents were prohibited from publishing or otherwise, posting on any social media or publishing or disseminating in any manner whatsoever the aforementioned feature. 7. The respondents were therefore restrained from making further publications after 17/12/2020 but were not directed by this court to pull down, delete, withdraw and/or erase publications already made. 8. I have carefully considered the grounds set out on the application plus the facts deponed in the affidavits and the rival submissions. The following issues arose for the determination of this court: a. Whether the 2nd to 10th defendants are properly enjoined as defendants? b. Whether the defendants are in contempt? 9. On the first issue the defendants have argued that the application is defective as it introduces the 2 nd to 10 defendants without any amendments being sought. Indeed, on perusal of the record the plaintiffs filed the instant suit against Standard Group PLC, Brian Obuya and Sirajurahman Abdullahi. The plaintiff/applicants have in this application listed the directors of the 1 st defendant as the 2nd – 10th defendants. 10. Order 1 Rule 10 (4) of the Civil Procedure Rules provides as follows; “Where a defendant is added or substituted, the plaint shall, unless the court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the court thinks fit, on the original defendants.” 11. The plaintiffs in this suit have not filed an amended plaint nor have they served the new defendants with the summons and the plaint, therefore this court find that they are not properly enjoined in this matter. There is also no evidence that the directors were personally served with the court orders. The failure to effect service is fatal to the application for contempt. 12. In the end I find no merit in the motion dated 10/2/2020. The same is dismissed with costs abiding in the outcome of the suit. DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 9TH DAY OF JULY, 2021. .......................... J. K. SERGON JUDGE In the presence of: …………………………………. for the Plaintiff/Applicant …………………………………. for the Defendant/Respondent

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