[2004] KEHC 591 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

CIVIL SUIT 131 OF 1999

AGGREY MUDINYU ……………………. PLAINTIFF

VERSUS

1. ALFAYO OTIENO

2. WACHIRA WAWERU

3. THE STANDARD LTD …………….... DEFENDANTS

4. JOSHUA OGOLA OKUMU

5. COUNTY COUNCIL OFHOMA BAY

JUDGMENT

The plaintiff AGGREY MUNDINYU has sued the five defendants for general damages for defamation of character and conspiracy to defraud and injure; an injunction to restrain the defendants, their agents employees or servants from further publication of similar words or any other defamatory matter, article words or material against or and concerning the plaintiff; exemplary or aggravated or punitive damages, an order of mandatory specific performance compelling the defendants to write, print and publish an apology and a statement retracting and revoking the defamatory publications together with cost of the suit.

The plaintiff is currently a Provincial Commissioner. When the cause of action arose in 1999 he was the District Commissioner Homa Bay District.

The 3rd defendant – The Standard Limited is a limited liability Company carrying on business of printing of a National daily newspaper called “the East African Standard.” In 1999 the 2nd defendant was its Chief Editor and the 1st defendant one of its news correspondence reporter.

The fourth defendant was in 1999 the chairman of the County Council of Homa Bay, the 5th Defendant.

The plaintiff case was as follows: He was posted to Homa Bay as a District Commissioner in June 1998. On a date not disclosed in February 1999, he addressed a public meeting at NGEGU Beach in Homa Bay during the launching of a project aimed at improving health, sanitation, roads and water in the region. On 24th February 1999, the 3rd defendant published on page 9 of that day copy of East Africa Standard Newspaper a story filed by the first defendant reporting on the plaintiff’s address. The “offensive” story stated that the plaintiff had cautioned wife inheritors. It went on to say that he had stated that the government will crack down on people inheriting widows of AIDS victims and that he had instructed chiefs to arrest such people.

On 25th February 1999 the 3rd plaintiff published an editorial on page 6 of that day’s newspaper which was based on the story they had published or 24th February 1999. The editor stated that it was debatable if the Government has the right or duty to decide who inherit whose widow in the communities where widow inheritance is still practiced. He said by ordering a crackdown a wife inheritors the plaintiff was going beyond the ambit of legality.

Matters did not end there. On 22nd March 1999 the 3rd defendant published another story on page 8 of the newspaper this time on corruption. The heading was

MUDINYU DECRIES GRAFT.

The story went on to say that while speaking in his office the plaintiff said a particular tribe documented the treasury and had perfected the corruption vice. The article further said that the plaintiff had cautioned local councillors who flocked his office for handouts. This article provoked the councillors of the 5th defendant. On 23rd March the fourth defendant who was the chairman of the 5th defendant wrote to the plaintiff what he titled as an open letter and protested the story attributed to the plaintiff saying that the councillors had been going to his office for handouts. This letter was copied to Provincial Commissioner Nyanza Province, Permanent Secretary Office of the President, Permanent Secretary, Ministry of Local Government and to the 3rd defendant.

The plaintiff told the court that all the stories appearing in newspaper of 3rd defendant were defamatory and malicious. They injured his character and portrayed him as an incompetent dictatorial and a tribalistic administrator, who was irreparable. It also showed him as a person who hates the Luo Community and did not respect their culture and custom. It also showed him as a corrupt administrator who is embezzling public funds using subordinates. He said that due to the defamatory stories he was transferred from Homa Bay District to Central Government. His promotion was delayed.

Plaintiff further told court that he wrote to the 3rd defendant demanding an apology but none was tendered. He therefore prayed for general damages, and exemplary damages from the 1st, 2nd and 3rd defendants.

Plaintiff also stated that the open letter by the fourth defendant was also copied to several offices. The 4th defendant was an aged of the 5th defendant and the 5th defendant also viciously liable.

The 1st, 2nd and 3rd defendants filed a joint defence. They admitted publishing the articles complained of. As of the article published on 24/2/99 they submitted that the same was not published falsely or maliciously. They were fair comment on a matter of public interest.

As for the editorial on 25/2/99 the 3 defendants stated that they were not published falsely or maliciously. They stated that the words were privileged, and were not defamatory, and that the plaintiff did not suffer any injury in his credit character or reputation. They also denied having conspired with anybody else to deface, defraud or injure the plaintiff in his office as a District Commissioner.

The 4th and 5th defendants filed a joint defence. They stated that the letter complained of was written after provocation by the plaintiff who was the District Commissioner. They denied that the words were defamatory.

In essence the articles the plaintiff complains to have been defamatory to him are three:- the article published on 24th February 1999 where it was said that he had condemned wife inheritance as it led to spread of AID, The editorial of 25th February 1999 commenting on the story published on 22nd March where it was said that he condemned graft. Lastly there was the letter written by the fifth defendant dated 23rd March1999 complaining that he had stated that councillors were hanging in his office looking for handouts.

The defendants did not deny writing the articles but they denied that they were defamatory. The 1st, 2nd and 3rd defendant stated that the first three publications were privileged and fair comment.

Having carefully considered the evidence I do not find the articles of 24th February and 25th February 1999 to be defamatory to the plaintiff at all. True he said in evidence a thing like that should enhance the respect to him as astute administrator. AIDS is an epidemic which has led to deaths of thousands and thousands of people. Every leader in the country, would, whenever he/she gets an opportunity warn people about its damages and advise them to take care.

It has been said in forums and everywhere that if one inherits a wife of a person who may have died of AIDS he will most likely he inflicted.

True wife inheritance in luo land is a well known and an old custom but even leaders from the area have gone on record to warn people to be careful about wife inheritance. Thus if the D.C. in a public meeting told people the dangers of wife inheritance no right thinking person or Luo for that matter should interpret that to be negative or an attack to a custom. In fact the D.C. should be commended if he advised people and warned them about the dangers of the Spread of AIDS.

I therefore do not find that the article was offence in anyway and that goes to the comments on the editorial the following day. I would perhaps dare say that it is the editor who was ignorant when he said that the plaintiff went beyond his duty when he told the people about the dangers of wife inheritance and Spread of AIDS. As a leader it was his duty to do this.

The 1st, 2nd & 3rd defendant had pleaded deface privilege. This deface is provided for in S.7 of the Defamation Act Cap. 36 L.O.K). The report was of meeting the plaintiff held. AIDS is a public issue and is discussed in all meetings where there is an opportunity even if it may not be in the Agenda of such meeting. The publication would therefore fall under the deface in S. 7 of that Act. True S.7(2) of the Act provides that for defendant to afford himself the deface of privileged publication he should publish on an apology if requested to do so by the plaintiff. Plaintiff in his letter Exh.6 requested the 1st, 2nd and 3rd defendant to publish an apology which they did not. However the defendants on receiving the letter they wrote to the plaintiff requesting him for more particulars before they could publish the apology. The plaintiff declined to give any further particulars. They filed this suit before responding to that request and as such I find that the defendant were still entitled to the defence of privileged publication. In any case I have stated above I find the words were not defamatory to the plaintiff and there was therefore nothing to apologise about.

The other article was the one published on 22nd March 1999 and the letter which was written by the 5th defendant as a result of the same. The article stated that plaintiff while talking to reporters in his office castigated corruption in the District Registry and also castigated councilors who were going to his office for handouts. He testified that the article portrayed him as a tribalist and that he did not have a meeting with reporters as published by 1st, 2nd and 3rd defendants. However again reading the article one cannot discern any words which would be said to be defamatory to the plaintiff. I would again dare say that such words on the contrary portrayed him as an astute administrator who should be commended.

The heading of the article itself is telling:

“MUNDINYU DECRIES GRAFT.” No person in his right thinking capacity would take a D. C., or any other person for that matter, who decries graft to be a tribalist or not a competent administrator. Condemnation of corruption especially in the public offices is the clarion call these days and everybody is at it. Corruption is a vice and decrying the same cannot really lower one’s reputation or esteem in the eyes of right thinking people. True he is said to have said the registry was dominated by people from tribe but nonetheless I fail to se any offending words. Thus even if he really did not talk to the reporters as he said, the words are not defamatory to him.

There is of course the letter by the 5th defendant to the Permanent Secretary Office of the President. Court was told that there were strained relationship between the plaintiff and the council. He had even refused to take his place as a nominated councilor. The 5th defendant said that the article incised them but again there was evidence that they all attended a reconciliation meeting before the P.C. The letter was most probably due to these wrangles. It only complained of the words attributed to him in the article of 22/3/99. The article had said that the councilors were hanging around the D.C. Office hoping to get handouts. I think the words were more critical of the councillors than the plaintiff. They expressed their feelings in the letter and there are no specific words pointed out to the court that were defamatory. Further there was no evidence that the plaintiff was transferred from Homa Bay to the Central Government because of the articles. In any case it seems that he was promoted from a D.C. to a P. C. thereafter which shows that the said articles had no effect on his career.

This all in all I find that the plaintiff did not prove his case even on a balance of probabilities. There was no defamation. I therefore dismiss the case against all the defendants.

Costs of course follows the cause. However it seems that plaintiff had a genuine belief though mistaken that the words were defamatory. For this reason I will order each party to bear its own costs.

Dated this 14th day of April 2004.

KABURU BAUNI

JUDGE

c/c Mobisa

Mr. Ogutu H/B for Okoth for plaintiff.