[2021] KECMAT 668 (KLR)

Amondi v Daily Nation Newspaper (Subsidiary of Nation Media Group - NMG) (Complaint 2 of 2020) [2021] KECMAT 668 (KLR) (21 May 2021) (Ruling)

Neutral citation: [2021] KECMAT 668 (KLR)

Republic of Kenya

In the Communication and Multimedia Appeals Tribunal

Complaint 2 of 2020

Rosemary Kuria, Chair, Ramadhani Abubakar Mukira, Collins Wanderi, Margaret Nyambura Ndung'u, Damaris Nyabuti, Vivienne Atieno & Mbesa Malombe, Members

May 21, 2021

Between

Toluwalase M Amondi

Complainant

and

Daily Nation Newspaper (Subsidiary Of Nation Media Group - NMG)

Respondent

Ruling

1. The complainant, Mr. Toluwalase M Amondi has filed before this tribunal a complaint vide a Memorandum of Complaint dated 7. 5.2020. The complaint, that has taken us on the treacherous journey of verbosity, is not convoluted nor is it complex. In brief we will delve into the facts captured therein before tackling the response tendered by the Respondent, Daily Nation Newspaper.

2. The complaint begins by summarizing the complaint by stating that the complaint is: Enforcement of the complainant’s constitutional right on information privacy and protection of reputation; by ordering for the correction, deletion, apologies, and compensatory remedial action for defamation and libel; occasioned by the false, misleading, malicious, invalid and unconstitutional publication or advert of Wednesday, April 8, 2020 appearing on page 35 (Annexure 1). In daily nation Newspapers (Kenya)- a subsidiary of the Nation Media Group Limited. (sic)

3. In his pleadings, the complainant avers that the Respondent published false, misleading and malicious advertisement alleging that he is an employee or agent of Sychar Centre. He states that from about 1. 8.2019 he was engaged by Sychar Centre as an independent contractor, bearing the title Managing Consultant. He also takes issue with the usage of his social media private picture indicating that it’s a violation of his private property rights.

4. The complainant then sought the following orders, we quote verbatim:a.The complainant requests that CAMAT, carries out all the necessary actions required by law, against Daily Nation Newspapers and Nation Media Group, which should include immediate demands for the production of all internal or external supporting records (electronic hard-copies) used in publishing the falsified and malicious (Annexure 1) advertisement, and other related Sychar Centre’s advertisement service registration forms, agent or representative’s contact information, payment slips, as well as the Respondent’s official company broadcasting policies, verification of identities, reasonability and veracity undertakings demanded from Sychar Centre Officials, agents or signatories to act contrary to the established legislations and code of conduct.b.The Respondent should also provide statutory explanations for ignoring and suspending the request or demand letters(Annexure 8ab) asking for the immediate retraction, deletion and other actions, required by law; even after discovery of their false and malicious publication, at least from date of electronic receipt of the complainant’s retraction and deletion request letters, addressed to the three Board of Directors and Bank signatory of Sychar Centre (Annexure 9) which was automatically delivered by electronic mail on Tuesday, April 7, 2020 and formally acknowledged at their Nairobi head office on Wednesday, 8th April, 2020. c.In view of the negative and detrimental publicity, generated by the false, malicious, misleading, invalid, immoral and illegal advertisement, and noting the established civil and/or criminal violations, which may have consequences of cancellation or delays in obtaining from the approved USAID Kenya Annual Program statement No. 72061519APS0003, valued at USD 500,000, the complainant is also demanding from the major respondent and their Associated Group Company (Nation Media Group) for full compensatory cost of the infringed rights on my copyright concept paper ownership, inclusive of other attributable loss or negative impressions that may have impacted against this USAID Kenya project co-creation awards, being the full and equivalent dollar payment contract value of USD 500,00 (five hundred thousand united states dollars only) into my designate d dollar or Kenya Shillings account at Co-operative Bank of Kenya Limited (or into any other international bank account, or the cash equivalent; being Kes 53,235,000 (Fifty Three Million, two hundred and thirty five thousand shillings) using Central Bank of Kenya dollar conversion rate of Kes 106,47/$1 by 8 April 2020. d.On the alternative review of my compensatory monetary demands, referred in petition seventeen above, for the protection of the full value of USAID Kenya contract awards, the complainant shall accept any other defamation or libel compensatory cash amounts, orders or reliefs, awarded by the CAMAT.e.The complainant also requests for an official and acceptable retracted published apology from the respondent, and immediate public knowledge or exposure of the true state of affairs of my contractual relationship, with Sychar Centre Limited as mentioned earlier, and subsequent and continuous review, updating and monitoring of consumer protection procedures and policies. CAMAT should also direct the Respondent’s compliance with the extant information Privacy, legislations, procedures and policies, including permanent prevention against any of the respondent’s future reprisal attacks, through any other false or misleading publications, advertisements or broadcasting of untrue or private contractual information of stories, against this Complainant, or his contracted associates, contractors, legal or project advisors, co-workers, and future beneficiary organizations, and their subsidiary institutions.f.The registration and notification of the summary orders and reliefs implemented by CAMAT, outlining the favorable compensatory outcomes of the complainant’s petition against this respondent and the board of Sychar Centre Limited, with the courts, the Communications Authority of Kenya, and other interested contractual or beneficiary institutions or individuals (private or public, local and international), including notices, (whenever required) addressed to any other interested party, including the Registrar of companies (Kenya), the commission on Administrative Justice (Kenya), the USAID Kenya & East Africa Agreement officers and federal service Desk office and systems for awards management, headquartered in the United States of America.g.CAMAT to undertake any other administrative, investigative and regulatory actions, as permitted and required by any other existing constitutional and legislative enactments or provisions, including global international conventions, treaties and principles of the Rule of Law in Kenya.

5. The Respondent filed a response to the complaint together with a Notice of Preliminary Objection both dated the 18th February 2021. It is this Preliminary Objection that is the subject of this Ruling. Parties agreed to canvass this Preliminary Objection via written submissions and each party filed its respective submissions.

6. The Respondent’s raise an objection as to the Competence of the entire proceeding on the following grounds:1. This Tribunal lacks the requisite jurisdiction to hear and determine the complaint for the following reasons:a.The orders sought by the Complainant do not lie as they fall outside the powers of the tribunal as donated by Section 102E (1) of the Kenya Information and Communications Act.b.The tribunal lacks the jurisdiction to adjudicate over disputes related to the alleged violations of Articles 31 (c) and (d), 35 (2) and 40 of the Constitution of Kenya 2010. 2.The entire complaint lacks merit and ought to be dismissed.

Respondent’s Submissions 7. The respondent submitted that jurisdiction is conferred by the Constitution, statute or both. The honorable tribunal can only assume jurisdiction over a matter if the power to do so is expressly provided by the statute that created it which is KICA.

8. Capturing the relevant law, the Respondent referred us to section 102E (1) of KICA which provides for the orders the Tribunal may grant after hearing the parties:a.order the offending party to publish an apology and correction in such manner as the Tribunal may specifyb.order the return, repair, or replacement of any equipment or material confiscated or destroyedc.make any directive and declaration on freedom of expressiond.issue a public reprimand of the journalist or media enterprise involvede.order the offending editor of the broadcast, print or online material to publish the Tribunal's decision, in such manner as the Tribunal may specifyf.impose a fine of not more than twenty million shillings on any respondent media enterprise and a fine of not more than five hundred thousand shillings on any journalist adjudged to have violated this Actg.in its reasons for its findings, record a criticism of the conduct of the complainant in relation of the complaint, where such criticism, is in its view, warrantedh.recommend the suspension or removal from the register of the journalist involved;i.make any supplementary or ancillary orders or directions that it may consider necessary for carrying into effect orders or directives made

9. It was the respondent’s submission that the prayers sought by the complainant fall outside the purview of section 102E (1) of KICAand the Tribunal therefore lacks the jurisdiction to hear and determine the complaint as drafted and grant the orders sought. The Respondent supported their arguments with a plethora of authorities which have been considered in this Ruling.

10. On the second limb on whether this Honorable Tribunal lacks the requisite jurisdiction to adjudicate over disputes related to the alleged violations of Articles 31(c) and (d), 35 (2) and 40 of the Constitution of Kenya, the respondent submitted on Article 23 of the Constitution to the effect that the High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement or threat to a right or fundamental freedom in the bill of rights.

11. The respondent further submitted that section 102E (1) of KICA only grants this Honorable Tribunal the power to make or issue a declaration with respect to violations of the freedom of expression. KICA does not confer jurisdiction upon the tribunal to hear and determine claims of infringement or violation of any other rights and/or fundamental freedoms.

12. It was also the Respondent’s submission that the enforcement of rights and fundamental freedoms is a preserve of the high court and in appropriate circumstances, subordinate courts where parliament has expressly donated such power to subordinate courts under Article 23(2).

13. Respondent concluded by urging the tribunal to dismiss the complaint with costs.

Complainant’s submissions. 14. The complainant presented seventeen paged submissions to oppose the preliminary objection. The submissions may have contained irrelevant facts but we have acted with extreme precision to decipher and comb out the relevant submissions as contained therein.

15. The Complainant submits that the Tribunal should not be unreasonably restricted by procedural technicalities.

16. The complainant argued that the complaint is multifaceted and issues presented are in omnibus manner and in the interest of justice the tribunal could make a finding.

17. He then submitted that the honorable tribunal has the inherent, original and appellate specialized jurisdiction conferred by law (KICA section 102F). That the orders sought lie before this tribunal. In a move to shift the burden of proof, the complainant stated that the Respondent and their advocate should be placed under strict proof, to explain their violations of the res judicata doctrine, their deliberate non-disclosure of material information, to the tribunal and complainant.

18. The complainant then proceeded to submit that the current hypothetical and academic preliminary objection, was previously ripe for dismissal and costs, because it was lodged too late in the day thus delaying these proceedings.

19. In conclusion the complainant also submitted that the High Court can only exercise an Appellate Jurisdiction, after all the current complaint and appeal matters have been fully canvassed and determined by the tribunal.

Determination 20. Having gone through each party’s respective submissions and authorities we now move to make a finding on the preliminary objection.

21. Before we delve into the instant preliminary objection, we must be guided by the celebrated case of Mukisa Biscuits Manufacturing Co. Ltd V West End Distributors LTD [1969] EALR 696 on whether the Preliminary Objection meets the criteria. It was stated in this case which we respectfully agree, that a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of the pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, as is the case here.

22. The Preliminary Objection dated 18th February 2021 before us is on a pure point of law on jurisdiction which we must determine before everything else.

23. The first point is whether the Tribunal has or lacks jurisdiction to issue the orders sought by the complainant.

24. The landmark case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR where Nyarangi JA stated“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

25. Section 102E (1) of KICA is elaborate on the orders that can be granted by this tribunal, for clarity we shall list the said orders:a.order the offending party to publish an apology and correction in such manner as the Tribunal may specifyb.order the return, repair, or replacement of any equipment or material confiscated or destroyedc.make any directive and declaration on freedom of expressiond.issue a public reprimand of the journalist or media enterprise involvede.order the offending editor of the broadcast, print or online material to publish the Tribunal's decision, in such manner as the Tribunal may specifyf.impose a fine of not more than twenty million shillings on any respondent media enterprise and a fine of not more than five hundred thousand shillings on any journalist adjudged to have violated this Actg.in its reasons for its findings, record a criticism of the conduct of the complainant in relation of the complaint, where such criticism, is in its view, warrantedh.recommend the suspension or removal from the register of the journalist involved;i.make any supplementary or ancillary orders or directions that it may consider necessary for carrying into effect orders or directives made

26. Looking at the above remedies that can be issued by the tribunal it is important to compare them with orders sought by the complainant, which are:a.The complainant requests that CAMAT, carries out all the necessary actions required by law, against Daily Nation Newspapers and Nation Media Group, which should include immediate demands for the production of all internal or external supporting records (electronic hard-copies) used in publishing the falsified and malicious (Annexure 1) advertisement, and other related Sychar Centre’s advertisement service registration forms, agent or representative’s contact information, payment slips, as well as the Respondent’s official company broadcasting policies, verification of identities, reasonability and veracity undertakings demanded from Sychar Centre Officials, agents or signatories to act contrary to the established legislations and code of conduct.b.The Respondent should also provide statutory explanations for ignoring and suspending the request or demand letters(Annexure 8ab) asking for the immediate retraction, deletion and other actions, required by law; even after discovery of their false and malicious publication, at least from date of electronic receipt of the complainant’s retraction and deletion request letters, addressed to the three Board of Directors and Bank signatory of Sychar Centre (Annexure 9) which was automatically delivered by electronic mail on Tuesday, April 7, 2020 and formally acknowledged at their Nairobi head office on Wednesday, 8th April, 2020. c.In view of the negative and detrimental publicity, generated by the false, malicious, misleading, invalid, immoral and illegal advertisement, and noting the established civil and/or criminal violations, which may have consequences of cancellation or delays in obtaining from the approved USAID Kenya Annual Program statement No. 72061519APSxxxx, valued at USD 500,000, the complainant is also demanding from the major respondent and their Associated Group Company (Nation Media Group) for full compensatory cost of the infringed rights on my copyright concept paper ownership, inclusive of other attributable loss or negative impressions that may have impacted against this USAID Kenya project co-creation awards, being the full and equivalent dollar payment contract value of USD 500,000(five hundred thousand united states dollars only) into my designated dollar or Kenya Shillings account at Co-operative Bank of Kenya Limited (or into any other international bank account, or the cash equivalent; being Kes 53,235,000 (Fifty Three Million, two hundred and thirty five thousand shillings) using Central Bank of Kenya dollar conversion rate of Kes 106,47/$1 by 8 April 2020. d.On the alternative review of my compensatory monetary demands, referred in petition seventeen above, for the protection of the full value of USAID Kenya contract awards, the complainant shall accept any other defamation or libel compensatory cash amounts, orders or reliefs, awarded by the CAMAT.e.The complainant also requests for an official and acceptable retracted published apology from the respondent, and immediate public knowledge or exposure of the true state of affairs of my contractual relationship, with Sychar Centre Limited as mentioned earlier, and subsequent and continuous review, updating and monitoring of consumer protection procedures and policies. CAMAT should also direct the Respondent’s compliance with the extant information Privacy, legislations, procedures and policies, including permanent prevention against any of the respondent’s future reprisal attacks, through any other false or misleading publications, advertisements or broadcasting of untrue or private contractual information of stories, against this Complainant, or his contracted associates, contractors, legal or project advisors, co-workers, and future beneficiary organizations, and their subsidiary institutions.f.The registration and notification of the summary orders and reliefs implemented by CAMAT, outlining the favorable compensatory outcomes of the complainant’s petition against this respondent and the board of Sychar Centre Limited, with the courts, the Communications Authority of Kenya, and other interested contractual or beneficiary institutions or individuals (private or public, local and international), including notices, (whenever required) addressed to any other interested party, including the Registrar of companies (Kenya), the commission on Administrative Justice (Kenya), the USAID Kenya & East Africa Agreement officers and federal service Desk office and systems for awards management, headquartered in the United States of America.g.CAMAT to undertake any other administrative, investigative and regulatory actions, as permitted and required by any other existing constitutional and legislative enactments or provisions, including global international conventions, treaties and principles of the Rule of Law in Kenya.

27. We are not in doubt that the orders sought by the Complainant above cannot be granted by this tribunal. Tribunals are specialized in nature and their workings are strictly limited, to attempt to expand our jurisdiction would be an affront to the rule of law and constitutionalism.

28. However, having sifted through the prayers we do find one prayer that can be the saving grace of this suit not to warrant a dismissal, and that is the prayer for a retraction and apology. See Section 102E (1) (a).

29. It would therefore mean that all the other prayers must fall, like a stack of cards; they must fall, because in this tribunal they do not lie.

30. The second issue is whether the honorable tribunal lacks the jurisdiction to adjudicate over disputes related to violations of Article 31(c) and (d), 35 (2) and 40 of the constitution.

31. On this limb our guidance is the constitution, the supreme law of the land that binds us all.

32. Article 23 (1) provides that “the High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement or threat to a right or fundamental freedom in the bill of rights.”

33. Has the complainant sought a redress of a denial, violation or infringement or threat to a right or fundamental freedom in the bill of rights?

34. We believe so. The third prayer in his pleading seeks compensatory cost of the infringed right. This prayer cannot be granted by this tribunal either on this limb or the other limb. Anything to do with redress for denial, violation or infringement or threat to a right or fundamental freedom in the bill of rights is a preserve for the High Court or courts with similar jurisdiction. We are therefore persuaded and convinced by the authority of Royal Media Services LTD V Attorney General & 6 others [2015] eKLR where the court in held that the HIV/AIDS Tribunal does not have jurisdiction to hear and determine issues concerning breach of rights and fundamental freedoms.

35. Section 102A of KICAprovides for the complaints that can be brought forth to the tribunal, it reads,102A.Complaints(1)A person aggrieved by—(a)any publication by or conduct of a journalist or media enterprise;(b)anything done against a journalist or media enterprise that limits or interferes with the constitutional freedom of expression of such journalist or media enterprise; or(c)any action taken, any omission made or any decision made by any person under this Act, may make a written complaint to the Tribunal setting out the grounds for the complaint, nature of the injury or damage suffered and the remedy sough

36. From the determination above, the tribunal thus, unanimously finds as follows:1. That the preliminary objection dated 18th February 2021 partially succeeds as follows:a.That the tribunal lacks the requisite jurisdiction to grant the orders sought as donated by section 102E (1) of KICA except for the order of a retraction and apology.b.That the tribunal lacks the jurisdiction to adjudicate over disputes related to the alleged violations of Articles 31 (c) and (d), 35 (2) and 40 of the Constitution of Kenya, 2020. 2.The complainant is at liberty to amend his pleadings for conformity with this ruling, and if he so chooses, the same shall be done within 14 days.3. The respondent shall get a corresponding leave of 14 days to file an amended response if any.4. Costs will be in the cause.5. Mention on 18th June 2021

RULING DATED AND DELIVERED VIRTUALLY THIS 21ST DAY OF MAY 2021R. Kuria ……………………………………R. Mukira …………………………………….C. Wanderi ……………………………………..Dr. M. Nyambura ………………………………..D. Nyabuti ………………………………………..V. Atieno ……………………………………….M. Malombe ………………………………………..