Jared Mogaka v Headlink Publishers Limited & 1 other

3. That pending the hearing and determination of the suit, the Respondents be ordered to cease further circulation and/or dissemination of any defamatory material concerning the Applicant already published. 4. That the costs of this application be provided for.Top of FormBottom of Form 3. The application before the Court is the Notice of Motion dated 17th February 2026 supported by the Supporting Affidavit sworn on even date by Jared Mogaka, the Applicant herein. 4. The Applicant depones that he is a Certified Public Accountant carrying on professional practice within the Republic of Kenya and a person of established local and international reputation. He avers that the Respondents, namely Headlink Publishers Limited and Daniel Nyakundi alias Evans Nyakundi, published and circulated a defamatory article in the 1st Respondent’s Citizen Weekly newspaper edition of 09th to 15th February 2026 titled “Nyamira County Woman Rep in political trouble.” 5. The Applicant sets out the words complained of and the imputations arising therefrom, contending that the publication portrays him as corrupt, dishonest, fraudulent, unethical, and unfit to hold public office. He further avers that the publication was false, malicious, and calculated to injure his reputation and standing, and that it was widely circulated both within and outside the country, including on digital platforms, thereby reaching a wide audience. He also states that the Respondents neither sought clarification from him nor verified the allegations prior to publication, and that the impugned material remains accessible online, thereby occasioning continuing injury. 6. The application is opposed by Evans Nyakundi alias Daniel Nyakundi, the 2nd Respondent through his Replying Affidavit sworn on 26th February 2026. He contends that the application is frivolous, an abuse of the court process, and devoid of merit. While not disputing certain background matters relating to the Applicant, he expressly denies that the publication complained of is defamatory and puts the Applicant to strict proof. 7. The 2nd Respondent admits authorship and publication of the impugned article in the Citizen Weekly newspaper of 09th to 15th February 2026, and asserts that the same is not defamatory but constitutes a truthful account based on statements allegedly made by the Applicant. He depones that on 23rd November 2025, at Nyakongo, Gesima Division, Kitutu Masaba, the Applicant made statements regarding political developments and withdrawal of support from a public office holder, which statements formed the basis of the publication. He maintains that the publication was therefore justified, truthful, and devoid of malice. 8. The 2nd Respondent further contends that the Applicant has not established the essential ingredients of defamation, namely that the words are defamatory, that they refer to him, that they were published by the Respondent, and that they are false. He relies on the legal definition of defamation as a statement which lowers a person in the estimation of right-thinking members of society and maintains that the impugned publication does not meet that threshold. 9. From the foregoing pleadings, affidavits and the Applicant’s written submissions dated17th February 2026 and the 2nd Respondent’s written submissions dated 03rd March 2026, the following issues for determination: 1. Whether the Applicant has met the threshold for the grant of an interlocutory injunction. 2. Who should bear the costs of the application https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6731/eng@2026-04-28 2

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10. The principles governing the grant of interlocutory injunctions are well settled. In Giella v Cassman Brown & Co. Ltd [1973] EA 358, the Court of Appeal held that an applicant must establish a prima facie case with a probability of success, demonstrate that he stands to suffer irreparable injury which cannot be adequately compensated by an award of damages, and, where the Court is in doubt, that the balance of convenience tilts in his favour. These requirements must be considered in light of the particular facts of each case. 11. The Applicant’s complaint arises from a publication in the Citizen Weekly newspaper of 09th to 15th February 2026 titled “Nyamira County Woman Rep in political trouble.” The Respondents do not deny publication but contends that the impugned article was based on statements allegedly made by the Applicant on 23rd November 2025 and relates to matters of public and political interest. 12. On the first limb, the Court must consider whether a prima facie case with a probability of success has been established. At this interlocutory stage, the Court is not required to determine conclusively whether the words complained of are defamatory, nor whether they are true or false. The Court is only required to determine whether, on the material presented, the Applicant has demonstrated a clear and arguable case that is likely to succeed at trial. 13. The Respondents have placed before the Court a factual basis for the publication, namely that it was derived from statements allegedly made by the Applicant himself. That assertion has not been specifically controverted and introduces a contest as to the truth, context, and meaning of the words complained of. In those circumstances, the defence of justification cannot be said to be frivolous or untenable at this stage. 14. Further, the question whether the impugned words bear the defamatory meaning attributed to them by the Applicant cannot be resolved without a detailed evaluation of the publication in its full context, including the surrounding circumstances and the evidence to be adduced at trial. To undertake such an inquiry at this stage would amount to conducting a mini-trial on affidavit evidence, which the Court must avoid. 15. The Applicant has also invited the Court to infer malice on the basis that the publication was made without verification. In this regard, reliance was placed on Joseph Njogu Kamunge v Charles Muriuki Gachari [2016] eKLR, where it was held that malice may be inferred where a publisher acts recklessly or without verifying the truth of a statement. However, where a respondent asserts a factual foundation for the publication, the question whether there was want of verification or reckless disregard for the truth becomes a matter for determination at trial. 16. The Respondents further rely on the standards of responsible journalism under the Media Council Act, 2013, which require accuracy, fairness and verification in reporting. Those standards underscore the obligation placed upon media practitioners in the publication of information to the public. However, whether those standards were complied with in the present case, and whether any failure in that regard would support an inference of malice, are matters that can only be conclusively determined upon evaluation of evidence at trial. 17. In light of the foregoing, the Court is not satisfied that the Applicant has established a prima facie case with a probability of success. 18. On the second limb, the Applicant must demonstrate that he stands to suffer irreparable injury which cannot be adequately compensated by damages. The Applicant contends that his reputation, which he describes as his most valuable asset, has been gravely injured and continues to suffer harm due to the continued circulation of the impugned publication, including on digital platforms. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6731/eng@2026-04-28 3

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19. The Court accepts that reputation is an important interest deserving protection. However, it is equally well established that in defamation claims, damages are the primary remedy. While injury to reputation may be serious, it is, in the ordinary course, compensable by an award of damages upon proof at trial. 20. In the present case, no exceptional circumstances have been demonstrated to show that damages would be an inadequate remedy. The continued availability of the publication, including in digital form, does not, of itself, displace the general principle that damages are an adequate remedy in defamation claims. The Applicant has not placed before the Court material to show that the injury complained of is incapable of quantification or that it is of such a nature as to warrant the grant of injunctive relief at this interlocutory stage. Accordingly, the requirement of irreparable injury has not been satisfied. 21. On the third limb, where the Court is in doubt, it determines the matter on a balance of convenience. Even if the Court were to assume some doubt, it must weigh the competing rights and interests of the parties. 22. On one hand is the Applicant’s right to protection of his reputation. On the other is the Respondents’ right to publish on matters of public and political interest. The impugned publication, on its face, relates to political developments and public discourse. Granting the orders sought would have the effect of restraining publication before the issues of truth, justification and context are tested at trial. 23. Such an order would amount to a prior restraint and would effectively determine the dispute at an interlocutory stage without the benefit of a full evidentiary hearing. In the circumstances, the balance of convenience tilts in favour of allowing the matter to proceed to full hearing. 24. In the result, and applying the well-settled principles in Giella v Cassman Brown & Co. Ltd(supra), the Court is not satisfied that the Applicant has met the threshold for the grant of an interlocutory injunction. 25. It is trite that costs follow the event. The application having failed, no sufficient cause has been shown to warrant a departure from that principle. 26. In the premises, and in light of the foregoing analysis and determination that the Applicant has not met the threshold for the grant of an interlocutory injunction, this Court finds that the Notice of Motion dated 17th February 2026 is devoid of merit and the same is hereby dismissed. The costs of the application are awarded to the 2nd Respondent. DELIVERED AT NYAMIRA THIS 28TH DAY OF APRIL 2026 WAMAE.T. W. CHERERE JUDGE Appearances Court Assistant - Hilda For Plaintiff Applicant - N/A for Samuel N.Mainga & Co. Advocates 1st Defendant/Respondent - N/A For 2nd Defendant/Respondent - Mr. Onyancha for R.M.Onyancha & Co. Advocates https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6731/eng@2026-04-28 4

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