A request by billionaire Vimalkumar Bhimji Depar Shah and his company Bidco to compel Google and Twitter to enforce a mandatory injunction on content by blogger Cyprian Nyakundi was declined by Justice Aburili Roselyne Ekirapa in an ongoing defamation case.
In the case, civil suit 300 of 2015, Vimal Shah and Bidco have sued Stephen Jennings, Rendeavour Group, Preston Mendenhall, Artem Gurevich, Aly Khan Satchu and Cyprian Nyakundi for defamation alleging that they made various injurious comments in different ways against the plaintiffs.
In a sworn affidavit Mr. Vimal Kumar Bhimji Depar Shah on 31st August 2015, accused the six to have used their different platforms to defame him. For instance, Aly Khan Satchu is accused to have hosted Stephen Jennings on Mind Speak where ‘a speech to a large audience of influential investors, in which he uttered the words which were defamatory to the Vimal. Satchu further fielded questions which questions were meant and did encourage the Jennings to utter further defamatory statements regarding the first plaintiff. Jennings proceeded to post and publish the said defamatory statements on their website.’
Stephen Jennings, Preston Mendenhall and Artem Gurevich hold different positions at Rendeavour Group, a real estate company that is embroiled in several legal tussles with Vimal Shah over Tatu City project, the first private metropolitan city to be constructed in independent Kenya.
On his part, Blogger Cyprian Nyakundi is accused to have been hired by Stephen Jennings to undertake
“a vile smear campaign against the plaintiffs and he had during the months of July 2015 to August 2015 published various defamatory statements on his blog site http://cnyakundi.com as well as on the various online twitter platforms vide @c-nyakundi.”
It is further alleged that despite the gravity of the allegation being made against the Bidco and Vimal, they have
“despite repeated demands failed to pull down from their websites the defamatory article despite their knowledge of the said articles causing distress and exposing the plaintiffs to odium, ridicule and contempt. The said defamatory articles continue to expose and cause the plaintiffs untold distress as they are being viewed by hundreds of thousands and /or millions of Kenyans and other nationalities spread across the world on the world wide web system of the internet.”
In a ruling, the plaintiffs wanted interim injunction and mandatory injunction against them. The interim injunction were to bar them from posting and forwarding on any electronic media, or publishing, or disseminating defamatory words, statements against the plaintiffs.
The mandatory injunction were to direct them to erase from their various posts, websites, blogs or their other forms of electronic and social media the said defamatory words, statements, pending the hearing and determination of the case.
In the ruling dated, 10th August 2016, Justice Aburili said
I find that granting the mandatory orders sought by the plaintiffs would be tantamount to issuing final orders. Accordingly, the prayer for a mandatory injunction fails.
She added
The prayer for a mandatory injunction and for Google and Twitter to assist in enforcement is declined.
She however granted interim orders against their continued publishing of the defamatory words against the plaintiffs. She said
I am satisfied that on affidavit evidence available, the plaintiffs have established a prima facie case with a probability of success that the defendants should be restrained by way of a prohibitory injunction from publishing any defamatory statements or words, of and concerning the plaintiffs.
The parties were directed to expeditiously prepare the suit for trial within 12 months from the date of this ruling.
