[2022] KEHC 3231 (KLR)

Alukonya v Makokha & another (Civil Appeal 56 of 2019) [2022] KEHC 3231 (KLR) (8 July 2022) (Judgment)

Neutral citation: [2022] KEHC 3231 (KLR)

Republic of Kenya

In the High Court at Kakamega

Civil Appeal 56 of 2019

WM Musyoka, J

July 8, 2022

Between

Baker Alukonya

Appellant

and

Hawkins Makokha

1st Respondent

Moses Mabwa

2nd Respondent

(Being an appeal from the judgment of Hon. T. Mwangi, Senior Principal Magistrate, delivered on 3 rd May 2019, in Kakamega SPMCCC No. 77 of 2018 ))

Judgment

1. The suit before the primary court was by the appellant against the respondents, for compensation, for defamation, allegedly arising from posts made by the respondents in a common WhatsApp platform for Vihiga County construction contractors. The suit was not opposed, as the respondents did not file a defence. A trial, by way of formal proof, was conducted, for an interlocutory judgment had been entered. The trial court found in favour of the appellant, on terms that the posts complained about were defamatory, and general damages were assessed at Kshs 200, 000. 00. The court declined to award exemplary and punitive damages, on grounds that the posts were not published or circulated widely, not nationally, but were confined to members of the WhatsApp group. The court also declined to have an apology published by the respondents in the manner proposed by the appellant.

2. The appellant was aggrieved, hence the appeal. He avers that he deserved punitive and exemplary damages for he had proved the same, the court had considered extraneous matters, and the award of general damages was too low.

3. At the oral hearing, this is the statement that the appellant made before the trial court:“I am Baker Alukonya from Bunyore Vihiga County. I am a contractor in construction business. I filed this suit. Defendant uttered defamatory words against me. My witness statement is dated 19/9/2018. I apply to produce it as my evidence.I filed a list of documents to support of my case. I have the originals. I apply to produce WhatsApp printout. I filed my list of documents dated 19/9/2018 through which I filed 8 documents in support of my case. The telephone number of 1st defendant is 0720357870. The telephone number of 2nd defendant 0712116769. “Mofesh” is the 2nd defendant as it appears in the WhatsApp.”

4. The witness statement referred to largely laid out the background to the case of the appellant, and reproduced much of what is pleaded in the plaint, inclusive of the offending words, and how they impacted on the reputation of the appellant.

5. Directions were taken on September 29, 2021, for canvassing of the appeal by way of written submissions. Parties were given 21 days to file and serve written submissions. By the time I was assigning the matter a date for judgement, on November 24, 2021, none of them had filed written submissions.

6. Only two issues arise for determination. One, whether the appellant was entitled to be awarded exemplary or punitive damages. Two, whether the award of Kshs. 200, 000. 00 was adequate in the circumstances.

7. Exemplary damages are punitive in effect, for they are designed to punish the defendant or to make an example of him. See Davies v Mohanlal Karamshi Shah [1957] EA (Sir Newnham Worley P, Sir Ronald Sinclair VP & Briggs JA), where it was remarked that punitive or exemplary damages are damages by way of punishment or deterrent. They are awarded in very limited circumstances. See Visram & Karsan v Bhatt [1957] EA 789 (Newbold VP, de Lestang & Spry JJA). The conduct of the defendant is a relevant consideration, in terms of whether he was high-handed, insolent, vindictive or malicious. See Obonyo & another vs. Municipal Council of Kisumu[1971] EA 91 (Spry VP, Law & Mustafa JJA). In Davies v Mohanlal Karamshi Shah [1957] EA (Sir Newnham Worley P, Sir Ronald Sinclair VP & Briggs JA), it was remarked that the conduct of the defendant and his persistence in repeating the libels was relevant to the point of considering punitive damages.

8. For the purpose of determining whether punitive damages ought to be awarded, the principal consideration appears to be the conduct of the defendant and his persistence in repeating the libel or slander. Conduct would essentially be with respect to both the period before and after the court action, failure to publish an apology and to make amends. Of course, these are also considerations when assessing general damages. See Lakha vs. Standard Limited t/a East Africa [2009] KLR (Bosire, Onyango-Otieno & Nyamu JJA). Focus should be more on the high-handedness, insolence, vindictiveness or malice. The appellant did not lead any evidence on how the respondents conducted themselves before the suit was filed against them. There is evidence that two demands notices were addressed to them, but no evidence was led on how they reacted to that. Were they arrogant about it, by exuding hubris and highhandedness, or insolence or the like? There is no evidence that they behaved in any way that would have exacerbated the situation. See Obonyo & another vs. Municipal Council of Kisumu [1971] EA 91(Spry VP, Law & Mustafa JJA). The other element would be persistence in repeating the libel. The appellant did not lead any evidence to demonstrate that the respondents repeated the libel after the demand notices were sent to them or even after the filing of the suit, and, therefore, there was no persistence in repetition of the libel, to warrant an award of punitive damages. See Davies vs. Mohanlal Karamshi Shah [1957] EA (Sir Newnham Worley P, Sir Ronald Sinclair VP & Briggs JA). Consequently, it is my finding that the trial court did not err on principle in failing to award damages for punitive or exemplary damages, as no case was made out for award of such damages.

9. On assessment of damages in defamation cases, Lakha vs. Standard Limited t/a East Africa [2009] KLR (Bosire, Onyango-Otieno & Nyamu JJA) stated the factors that ought to be taken into account. These include the objective features of the libel itself, such as gravity, its province, the circulation of the medium in which it was published, and any repetition; the subjective effect on the feelings of the plaintiff from both the prominence of the plaintiff as well as well as the defendants conduct thereafter up to and including the trial itself; matters tending to mitigate damages, such as publication of an apology; and matters tending to reduce damages and vindication of the past and future reputation of the plaintiff. It was emphasized that a defamed person does not get compensation for their damaged reputation, but because they were injured in reputation and publicly defamed. The compensation, by way of damages, is designed as a vindication of the plaintiff in public and as a consolation to them for the wrong done, and the court ought to reflect, in its award, a balance between the need for both public vindication and consolation. It is for these reasons that the principle of restitutio in integrum would not apply in assessment of damages for defamation.

10. In awarding or assessing damages at Kshs. 200, 000. 00, instead of the Kshs. 5, 000, 000. 00 that the appellant was proposing, the trial court considered only one factor, that the offending words were not published beyond the WhatsApp group. The appellant had cited Musikari Kombo vs. Royal Media Services Limited[2018] eKLR (Visram, Karanja & Koome JJA), Miguna vs. Standard Group Limited & 4 others[2017] eKLR (GBM Kariuki, Sichale & Kantai JJA) and Joseph Njoroge Kamunge vs. Charles Muriuki Gachari[2016] eKLR (Mativo J), where large awards were made, being Kshs. 5, 000, 000. 00, Kshs. 5, 000, 000. 00 and Kshs. 1, 500, 000. 00, respectively. In the three cases, the offending words were published to wider audiences. In Musikari Kombo vs. Royal Media Services Limited[2018] eKLR (Visram, Karanja & Koome JJA), it was through a broadcast during primetime news on television; in Miguna Miguna vs. Standard Group Limited & 4 others [2017] eKLR (GBM Kariuki, Sichale & Kantai JJA), it was in a newspaper of national circulation; and in Joseph Njoroge Kamunge vs. Charles Muriuki Gachari[2016] eKLR (Mativo J), the offending words were uttered in a meeting of about 200 people.

11. In the instant appeal, the membership of the WhatsApp group was put at about 50 people. Circulation of the publication was, therefore, to a small group. It was a defined group of people, peers, like-minded and all in the same line of business. They were all contractors, competitors for business, as opposed to a diverse and disparate group of individuals. The publication was, therefore, not to the general public. The impact on the reputation of the appellant was minimal, and the award of Kshs. 200, 000. 00 was, therefore, adequate to vindicate and console the appellant. I find that the trial court was not wrong on principle, and I will not interfere with its assessment and award of general damages.

12. Consequently, I find that the appeal has no merit and I hereby dismiss the same. As the respondents did not participate in it, I will award no costs.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS………………8thDAY OF July 2022W MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Ms. Rauto, instructed by Rauto & Company, Advocates for the appellant.