[2017] KEHC 2442 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL CASE 437 OF 2009

ANASTASSIOS THOMOS......................................................PLAINTIFF

VERSUS

OCCIDENTAL INSURANCE COMPANY LIMITED.............DEFENDANT

JUDGMENT

The plaintiff herein Anastassios Thomos instituted this suit by way of a plaint dated 7th August, 2009 to recover general damages, cost and interest following a report carried out by the standard Newspaper in its issue of 18th May, 2009 which the plaintiff claimed was defamatory of him. The article which appeared on page 11 of the aforesaid Newspaper read;

Court; “sleep on your rights at your own peril.”

The said Article explained in some detail that the plaintiff had slept on his rights and that his application to set aside a ksh 5,000,000/= judgment had been dismissed by the court. The plaintiff contended that subsequent to the said publication, he received numerous telephone calls and comments from his friends and business associates expressing concern that he was in financial problem.

The plaintiff further averred that as a result of the said publication, his reputation has been severely damaged and his estimation in the eyes of his friends and business associates has been lowered. He contended that the publication was as a result of the defendant’s negligence towards him as a result of which he suffered loss and damage. The particulars of negligence, loss and damage are set out in paragraphs 13 and 14 of the plaint. He has sought general damages for negligence.

The defendant filed its defence denying that the publication damaged the plaintiff’s reputation. The defendant further averred that,

1. It was not responsible for the alleged publication and it had nothing to do with it.

2. That the plaintiff has not demonstrated any nexus between the publisher of the alleged publication and the defendant to warrant the plaintiff’s claim against it.

3. There is no defamatory material against the plaintiff.

4. There is no material to demonstrate the plaintiff’s injured reputation.

The defendant denied the particulars of negligence attributed to it and averred that failure to inform the plaintiff of the existence of CMCC NO 6369 of 2004 would not itself be injurious to the plaintiff’s reputation, that the alleged risk of monetary decree and possible execution has no correlation with the suit herein; and that the defendant did not defame the plaintiff or subject him to adverse publicity as alleged and did not cause him to lose his business credit worthiness as alleged.

The defendant further avers that without prejudice to the aforegoing, even if the plaintiff suffered negative publicity and loss of business creditworthiness as alleged, but which is denied, the defendant was not the author of the plaintiff’s predicament nor was it connected with the publication by the Standard Newspaper which gave rise to the plaintiff’s misfortune; if any. It avers that the plaintiff is not entitled to any damages against it in the circumstances and that the plaintiff’s suit does not disclose any cause of action against the defendant and the same should be dismissed with costs.

In his evidence, the plaintiff applied to have his statement adopted as his evidence in chief which the court granted. In the said statement the plaintiff stated that sometimes before December, 2001, he insured his motor vehicle KAK 291V with the defendant, through policy number CL/PCI/00/12335/02. On the 4/12/2001, his aforesaid vehicle was involved in an accident in which the victim sustained fatal injuries following which he was charged in traffic case no 2973/2002 but he was acquitted.

That after the acquittal, he did not receive any communication from the defendant regarding the accident. On or about May, 2009 his colleague, a Mr. Mungai brought his attention to an article in the Standard Newspaper which concerned him and to the effect that he owed some people money and that he had slept on his rights. He asked him what it was all about but he didn’t know what to tell him because he was not aware of any person that he owed money.

That he read the story in the standard newspaper of 18/5/2009 and he was shocked to discover that he had been sued in cmcc no 6369 of 2004 by the wife to the deceased and upon instructing the firm of Munga Kibanya & Co Advocates, he was informed that after perusing the court file they found out that the defendant did not defend him or take any action to protect his interest as the insured despite the fact that they had been informed about the case.

He further stated that his advocates told him that the firm of Olotch & Co Advocates had entered appearance on his behalf and had made an application to set aside interlocutory judgment dated 16/10/2008 which application was supported by an affidavit purported to have been sworn by him on the 17/10/2008 which he did not swear. He also did not instruct the said firm.

He stated that he is aggrieved by the defendant as their negligence or failure to act promptly to protect his interests resulted in the matter being published and judgment being entered against him. As a result of the publication he was subjected to adverse publicity and he thus suffered loss and damage. He stated that at the material time, he was negotiating a loan for cmc Aviation limited which he was a managing Director and the loan was never approved.

The plaintiff called one witness in support of the case. The said witness by name John Mungai was working under the plaintiff at the material time when the article was published.

They were both working for cmc Aviation Limited with the plaintiff as the managing Director while PW2 was the director of Aviation Quality and safety. He applied for his statement to be adopted as evidence in chief which was granted. In the statement, he stated that on 18/5/2009 he bought a copy of the standard newspaper and while reading through he came across a story at page 11 which was published about the plaintiff concerning a judgment that had been entered against him to pay some people money. The story also said that the court had refused his request to set aside the judgment. The plaintiff told him he was not aware of the story as he was not aware of any suit filed against him.

He further stated that on subsequent days there were adverse discussions amongst the employees regarding the case, with some appearing to suggest that the plaintiff was a suspicious character who owed people money and refused to pay claims. The plaintiff told him he would follow up the matter with the insurance company.

The defendant called one witness (Richard Kilimo Mombo). He was working with the defendant as an assistant claims manager at the material time. He told the court that the case involved an earlier case wherein the plaintiff’s Motor vehicle was involved in an accident with a pedestrian who sustained fatal injuries while the plaintiff’s motor vehicle was damaged in the same accident. The wife to the deceased filed case no. cmcc 6369/2004 and the insurance paid the claim together with the plaintiff’s claim for material damage.

It was his evidence that they do not know the person who published the article. That the defendant was also defamed as the Article talked of the defendant not paying claims which is not true. He stated that the defendant was not negligent as the matter was ongoing and it was finally settled and they paid. He averred that the defendant did not have any control of the effects the Article had on the plaintiff and those who read it. That the defendant was not happy with the Article and the same was not published because of any alleged negligence on its part. He denied that the defendant was responsible for the plaintiff’s alleged damage to his reputation or any loss or damage if at all.

About the forged signature, he told the court that the plaintiff has never reported the same to any police station and he did not complain to the defendant. He contended that the defendant complied with it’s obligation by finally paying the plaintiff’s claim for both the vehicle and compensation to the estate of the deceased who died in the accident.

Parties filed their respective submissions which this court has taken due consideration of, together with all the material before it.

Having set out the summary of evidence by the respective parties, I proceed to identify the issues for determination which in my view are:

a) Whether there is a link between the defendant’s alleged negligence and the alleged defamatory article.

b) Did the defendant suffer any damage?

From the plaintiff’s evidence, the claim is for general damages for negligence as pleaded at paragraph 15 of the plaint and not for defamation. It is alleged that a duty of care is imposed on the relationship existing at the material time between the plaintiff and the defendant. It is the plaintiff’s case that the defendant breached its duty of care towards him by not taking up the expeditious conduct of cmcc no. 6369/2004 which resulted in interlocutory judgment being entered against him hence the negative publicity in the Newspaper.

Negligence is a specific tort that emanate from the common law jurisprudence. In a claim of negligence, the Plaintiff ought to establish that the Defendant owed him a duty of care, that there was a breach of the duty of care and as a result of the breach, the Plaintiff suffered damages. The principles and threshold required to sustain a claim in negligence were established by Lord Macmillan in Donoghue Vs. Stevenson when he stated that,

“The law takes no cognisance of, carelessness in the abstract. It concerns itself with carelessness only where there is a duty of care and where failure in that duty has caused damage. In such circumstances, carelessness assumes the legal quality of negligence and entails the consequences in law of negligence … the cardinal principle of liability is that the party complained of should owe to the party complaining a duty to take care and that the party complaining should be able to prove that he has suffered damage in breach of that duty.”

Before a claim can succeed in an action for negligence, the damages alleged must be damage which the law recognises and which is not too remote. When it comes to remoteness of damages, the court ought to determine whether there was a sufficient cause or proximate connection between the defendant’s negligence and the damages suffered by the plaintiff that is recognisable as a matter of policy that the Defendant should pay for the damages. The Court of appeal, in addressing the issue of remoteness of damages in the case of Cotecna Inspection S.A V Hems Group Trading Company Limited [2007] eKLR held that,

“My analysis and evaluation of the evidence, a summary of which is given above, must only be confined to the question as to whether or not that breach of duty was the cause of the losses the respondent suffered and if so, whether the assessment of damages was properly carried out by the trial court. But first, the law. What are the principles to be applied when considering the nexus between the acts of an offending party and the loss suffered by the offended party? I do agree with both learned counsels that there must be a link between the action complained of and the loss incurred. That to me, goes without saying and is a matter of common sense. It underlies the doctrine of remoteness of damages.”

The law of causation will come into play where the plaintiff must show that damages resulted from the Defendant’s negligence because without proof of causation, negligence cannot be actionable.

In the case of Elijah Ole Kool Vs George Ikonya Thuo[2001] eKLR justice ALNASHIR VISRAM addressed the requirement for causation when he stated;,

“When will an act or omission be said to be the cause of the Plaintiff’s injuries? A defendant will only be held liable for negligence if his act or omission is either the sole effective cause of the Plaintiff’s injury or the act or omission is so connected with it as to be a cause materially contributing to it. The first case will rarely raise contentions.”

InWalker v. Goe [1859], 4 H. & N. 350, it was held that there can be no liability unless the damage is the “proximate” result of the negligence

In the work of Charles worth & Peray on Negligence, 7th Edition, it is stated as follows;

“Evidence of causation must be given on behalf of plaintiff. Before a case can be considered, either direct or circumstantial evidence must be called on behalf of the plaintiff. Whatever evidence is so called, it must tend to show how the accident happened and how, as a result, he sustained his personal injuries or suffered his damage. Such evidence also must show that on a balance of probabilities, the most likely cause of the damage was the negligence or breach of duty of the defendant, his servant or agent and not solely the negligence of some other person. If he fails to establish that the defendant caused the harm, of which he complains, or some part of it, then his action will fail. Such a failure will result whether this happens to be expressed in terms of lack of result or for reasons of remoteness.

It is a question of law, whether the evidence adduced allows a reasonable finding of causation, but it is a question of fact, whether any particular head of damages is so caused by a defendant’s negligence or breach of duty.”

Having set down the principles applicable in a case of negligence, I will seek to establish whether the same were prevalent in the instant case.

The relationship between the Plaintiff and the Defendant was one of a contractual nature between an insurance company and the insured whereas the action complained of arises out of a newspaper article published in reference to a claim filed in court. The Plaintiff’s claim is based on negligence, the particulars of which, it is alleged, exposed the Plaintiff to the risk of monetary decree and possible execution and risk of defamation and adverse publicity.

The court has looked at the article complained of as well as the plaintiff’s statement that was adopted as his evidence in chief. In his statement, he stated that he is aggrieved by the defendant because as a result of their negligence or failure to act promptly to protect his interest as his insured, it resulted in the matter being published and judgment being entered against him. He went further to state that the insurance failed to inform him of the existence of cmcc no 6369/2004 and that they exposed him to a risk of monetary decree and possible execution. That as a result he also risk defamation and he was subjected to adverse publicity as a result of which he suffered loss and damage.

He further contended that his business colleagues thought that he owed people a lot of money and they started getting uncomfortable in doing business with him as a managing Director of cmc Aviation limited. That the article was brought up when he was negotiating a loan for cmc limited and the loan was never approved.

A cursory perusal of the article as published reveals that, granted, interlocutory judgment had been entered against the defendant on 9/11/2004 and the matter must have proceeded to formal proof and judgment had been entered against the defendant for ksh. 5 million.

The amount was not paid and on seeking to set aside the judgment, the court declined to set aside the same and the learned magistrate, Aggrey Muchelule ( as he then was) had this to say.

“I accept that there is a substantial defence of the claim. However, the application was brought nearly four years after the interlocutory judgment. I refuse to accept that it was reasonable on the part of the defendant to leave the suit papers with his insurer and do nothing about it for four years.”

It is noted that at the time the case herein was filed, though there was a judgment in cmcc no.6369/2004, there is no evidence that execution had been levied against the plaintiff and in any event the defendant finally settled the claim.

On the risk of defamation and adverse publicity, the law of causation will come into play and the question at hand is whether the Defendant should be liable for the actions of a defaming third party. The law is very clear that for the defendant to be liable there must be a causal link between the Defendant’s negligence and damages occasioned. In this case, I find that the defendant did not have any control of any publication whether positive or negative from third parties arising out of claims covered in the insurance policy. Therefore, the publication cannot be attributed to negligence on the part of the defendant as it has not been shown that the defendant had a role to play in it. The failure by the defendant to defend the suit in time in itself is not in any way connected to the publication.

As I have noted elsewhere in this judgment, the plaintiff did not suffer any loss arising out of the failure by the defendant to defend the suit as no execution was levied against him. Infact, the loss that he is alleged to have suffered as particularized on paragraph 14 of the plaint are said to be the negative publicity that he allegedly received in a national media and harm to his reputation which led to loss of his business credit worthiness.

The kind of damage allegedly suffered as set out herein above, can only be founded on a claim of defamation and not negligence. In a claim for negligence, a party has to specifically proof the loss and damages that he suffered unlike in libel which is actionable per se.

Though it is the plaintiff’s case that he lost business, no evidence was tendered before the court to support that assertion. The loan application form and evidence of the fact that the bank declined to advance the loan to cmc limited, following the publication, were not exhibited for this court to see. It is also worth noting that it is the company. i.e cmc ltd that had applied for the loan and not him. A limited liability company is a legal person capable of suing and being sued and if there was any loss suffered, it must have been the company that suffered and not him as a person. In any event, the Newspaper just reported in a very fair manner the court proceedings and there was nothing defamatory in the article.

In the premises aforesaid, I find and hold that the plaintiff did not prove his case on a balance of probability and the case is hereby dismissed with no order as to costs.

It is so ordered.

Dated, Signed and Delivered at Nairobi this 6th Day of October, 2017.

.......................

L. NJUGUNA

JUDGE

In the Presence of

……………………. for the Plaintiff

…………………. for the Defendant