Gachoka-Koinange suit calls for new law of contempt

Last week’s arrest of two high-profile media personalities, Jeff Koinange and Tony Gachoka, for contempt of court was the subject of significant media attention, which masked questions raised in the case in which the two are charged.

It is not disputed that on 12 March 2015, Koinange hosted Gachoka in his television show, “JF Live”, during which the two had a long discussion on the Anglo Leasing scandal.

A week later, on 20 March, Jimi Wanjigi and Sani Wanjigi, together with their company, Kwacha Limited, filed a civil suit in a magistrate’s court, alleging that during “JK Live”, defamatory words had been uttered against Jimi Wanjigi by linking him to the Anglo Leasing scandal. Naturally, the defendants in the suit included Koinange and Gachoka, and, interestingly, YouTube.

On the same day that they filed the suit, the plaintiffs got it certified as urgent, appeared before a magistrate who also issued a number of additional orders including that service on the defendants should be through a newspaper rather than in person, that service on YouTube should be made “through the Internet”, and that a temporary injunction be issued restraining the defendants from writing or broadcasting any statements that were libelous of the plaintiffs.

The court also issued a mandatory injunction against Gachoka, requiring him to pull down from the internet “the slanderous/defamatory statements ….that the defendant had posted in YouTube”.

Without getting involved in the substance of the suit, the magistrate’s decision presents several difficulties. First, while she could conceivably certify the suit as urgent, it is difficult to see how fairness could have been maintained by proceeding further, without giving the defendants a chance to participate.

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If it was minded to do so, the court could have provided a quick turnaround, within which all the parties should have come to court for a hearing. Secondly, it is odd that the court allowed service of the suit to be through a newspaper advertisement, something lawyers call “substituted service.”

Normally, the best service is personal service, where court papers are furnished directly to the person that needs to be notified of the proceedings. Courts ordinarily require personal service unless a good reason is given against it. It remains unclear why the court allowed substituted service.

Thirdly, the court, in effect, disposed of the substance of the suit when it issued an order requiring the defendants not to engage in future defamatory acts against the plaintiffs, and also ordered that Gachoka pull down from the internet material that the plaintiffs considered defamatory. This order was a mandatory injunction.

Mandatory injunctions, which are not preceded by a hearing of all the sides, are issued only in the most extraordinary situations. In this case, however, the court easily issued an ex parte mandatory injunction and compounded the problem when it allowed service of the injunction order through a newspaper.

There is one more problem with this last order. It constitutes prior restraint, which is considered a controversial measure in the discourse on free speech.

Prior restraint is where a public authority, say a government or a court of law, prohibits certain types of expression in advance. The alternative to prior restraint is where free speech is allowed and appropriate action is taken if such speech is considered defamatory.

Prior restraint is regarded as an extreme form of censorship and is, for this reason, frowned upon in many liberal jurisdictions.

ORDERS ISSUED
The manner in which the initial proceedings were conducted directly led to the difficulties that Koinange and Gachoka found themselves in last week.

Having not been served personally, they claimed that they were unaware of the suit and the orders issued against them. Without personal service, it can only be assumed, rather than proved, that they were served.

When their lawyer, Gitobu Imanyara, went to the High Court, to challenge the contempt proceedings that had now ensued based on a claim that they had not obeyed orders that they claim not to have known about, the High Court declined a stay of the proceedings in the magistrate’s court. The effect of this is that Koinange and Gachoka are still liable for arrest for contempt of court.

Imanyara’s claim is that the magistrate’s court has no jurisdiction over contempt of court cases, which he contends, can only be heard in the High Court. However, before he can make this fine point, he must figure out a way of keeping his clients out of jail for contempt.

The situation facing Koinange and Gachoka raises two general issues. First it points to the return of super-litigants in our courts of law, people who are somehow able to obtain orders that ordinarily are not available to other litigants.

The judiciary has had such litigants in the past, and recent reforms were thought to have addressed this issue. When filing their suit, the Wanjigis asserted that there was no previous suit pending between the plaintiffs and the defendants.

It transpired, however, that a suit for defamation filed by Jimi Wanjigi against Gachoka, again over Anglo Leasing, is pending in the High Court since 2014. This fact has been brought to the attention of the court, but was not enough to change its decision.

Because of their fame, Koinange and Gachoka have been portrayed as able to take care of themselves. However, they are actually facing a suit in which the court has acted in a very unusual manner, raising well-founded questions as to the fairness of the proceedings.

Secondly, a law on contempt of court has been in contemplation for some time. On the evidence of this case, such a law should now be fast-tracked.

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