SHA whistleblower Nelson Amenya wins defamation case against tycoon Jayesh
Nelson Amenya, the activist sued by businessman Jayesh Saini in Paris, France.
A court in France has dismissed a defamation case that entrepreneur Jayesh Saini filed against Paris-based activist Nelson Amenya, holding that laws on free speech protect discussion of matters of public importance.
Mr Saini sued Mr Amenya, claiming that a series of social media posts involving contracts under the controversial transition from the National Health Insurance Fund (NHIF) to the Social Health Authority (SHA), were defamatory of him and his businesses.
Mr Saini sought €60,000 (Sh8 million) in damages and legal fees.
But Francois Hary has ruled that Mr Amenya’s posts on social media platform X were based on matters that are part of public debate and interest, particularly corruption and the healthcare sector in Kenya, hence are protected by European Union laws on freedom of expression.
Mr Saini has also been ordered to pay Mr Saini €5,000 (Sh667,000), to cater for legal bills and other costs incurred defending the suit.
Mr Saini wanted Mr Amenya ordered to pull down the social media posts, arguing that they unfairly painted him in bad light.
But Mr Hary ruled that the businessman did not adduce enough evidence to show the harm caused to him and his firms in France, as the social media posts were targeted at a Kenyan audience.
Aside from arguing that he made the posts in a whistleblower role, Mr Amenya contested the French court’s authority to hear the case.
Mr Saini is the proprietor of Dinlas Pharma and Bliss Healthcare. In court papers, he said that his father is the proprietor of Lifecare Hospitals and Nairobi West Hospital.
The case raised an issue that is becoming increasingly contested in the digital age – which courts have authority to hear defamation matters in cases where the plaintiff and defendant reside in different countries?
Mr Amenya held that the complaint arose from Kenya and involved matters affecting Kenyans, hence a Nairobi court was better placed to preside over the dispute.
He added that Mr Saini had already filed another case in Nairobi, and failed to obtain orders similar to those sought in France.
The case in Nairobi is still proceeding before the Chief Magistrate’s Court in Milimani.
Mr Saini maintained that the French court had authority, as Mr Amenya is based there.
The court sided with Mr Saini on that one ground, holding that the courts in the jurisdiction where the defendant resides, whether temporarily or permanently, are the right port of call for defamation suits.
But this means that in such cases, plaintiffs will have to prove that harm they have suffered under laws of the country where the suit is being heard.
In this case, Mr Saini was required to provide evidence of harm he has suffered, based on French law.
Mr Hary noted that there being a case filed in Nairobi and in which no orders were issued against Mr Amenya, was evidence that the matters raised in the social media posts refer to issues deeply rooted in the public and judicial landscape.
