[2024] KEHC 11657 (KLR)

Bid v Nation Media Group Limited (Civil Case 223 of 2014) [2024] KEHC 11657 (KLR) (Civ) (19 September 2024) (Judgment)

Neutral citation: [2024] KEHC 11657 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Case 223 of 2014

AN Ongeri, J

September 19, 2024

Between

Dilesh Somchand Bid

Plaintiff

and

Nation Media Group Limited

Defendant

Judgment

1. The plaintiff herein, Dilesh Somchand Bid, (hereafter referred to as the plaintiff only), instituted this suit against Nation Media Group Limited (hereafter referred to as the defendant only) seeking the following remedies;i.An order that the plaintiff is entitled to a retraction of the defamatory words and an order be issued compelling the defendant to publish prominently a suitably worded retraction and apology on the front page of ‘The Daily Nation’ Newspaper.ii.An order to compel the defendant to pull down all defamatory statements published by it or caused to be published by it online.iii.General damagesiv.Aggravated damagesv.Punitive damagesvi.Interest on iii, iv and v above.vii.Costs of this suitviii.And any other or further relief as this honorable court may deem fit to grant.

2. The plaintiff averred in the plaint dated 21/7/2014 that the defendant is the proprietor, printer and publisher of the ‘the Daily Nation’ which has a wide circulation throughout Kenya and globally through the online edition.

3. In the Saturday nation of 27th July 2013 under the heading “Family cries for justice after their daughter’s killer walks to freedom” the defendant printed and published or caused to be printed and published of and concerning the plaintiff the following defamatory words;“losing her 19-year old daughter through a it-and-run accident, barely two months after she joined college was enough pain for Ruth Lang’at’The pain and agony has been commanded by what she believes was miscarriage of justice after a Nairobi magistrate acquitted a tycoon who killed her daughter, Yvonne Chepng’etich with a fine of only ksh.100,000. ’To her, the acquittal of Dilesh Somchkand Bid, the managing director of Bid Insurance Company was like rubbing salt into her raw wound’On the fateful night of October 21, 2012, Chepngetich and her two friends were on their way to buy supper at a shop opposite Utalii College on Thika highway. They were crossing the road at a zebra crossing when Mr. Bid struck. Other vehicles on the road had stopped to allow them to cross when, suddenly, Bid overlapped at high speed and hit the three.Witnesses said Mr. Bid tried to escape after the accident and it was only after a tourist police car blocked him that he stopped. Even after that, he refused to rush the victims to hospital until police called an ambulanceRita sustained a fractured arm while Eric broke his leg during the accidentEven in his mitigation, Mr. Bid was so arrogant and reminded us how rich he is. Fining him Sh.105,000. 00 was like pocket change since we know he is someone who is able to pay a Sh 10 million fine instead of going to jail for one week' Mr. Kahindi said”

4. By a letter dated 23rd August 2013, the Plaintiff wrote to the Defendant's editor seeking a publication of the correct version of the incident as the first article was inaccurate and defamatory.

5. The Defendant did not acknowledge receipt of the letter and neither was a retraction published as requested. Instead the Defendant caused to be published on 21st October 2013 at page 9 of the Monday Daily Nation, under the heading Motorist who caused student's death only got a slap on wrist', the following defamatory words:“Almost a year ago, 19-year old Yvonne Langat's promising career in the hospitality industry was cut short in the most callous of ways by a reckless motoristUnknown to them, a Toyota Land Cruiser hurtled down the outermost lane and mowed down Yvonne and two of her colleagues. The motorist did not stop to check on his victims and it took a chase by motorcycle operators and police officers on patrol to arrest him a few kilometers from the scene'The killer driver happened to be Dilesh Somchand Bid, the managing director of Bid Insurance Company.He flatly refused to take the students to hospital saying he did not want Africans in his car' Yvonne's stepfather Mr. Kioko Kaindi was quoted at the time.With Yvonne buried, the long search for justice started. For two months, nothing happened. When her parents visited the Pangani Police Station where the case had been reported, the officer in charge of the matter a constable Nyaga gave him the most heartless of excuses. He said Bid was proceeding for his Christmas holidays and they should wait for him to return before the case could go on''Then from the blues, Bid offered Yvonne's parents Sh 1 million to drop the case. Mr. Kaindi refused the offer.”

6. By the said words in their natural and ordinary meaning, the Defendant meant and was understood to mean:i.The Plaintiff is not law abiding and attempted to flee from the scene of an accident;ii.The Plaintiff is a careless and reckless driver who disobeys traffic rules;iii.The Plaintiff is corrupt and does not believe in the rule of law;iv.The Plaintiff is arrogant, racist and conceited;v.The Plaintiff lacks morality and decency.

7. The Plaintiff avers that the said words which in their natural and ordinary meaning, by implication and/or by way of innuendo or otherwise, meant and were understood to mean, that the Plaintiff acted inhumanely on 21st October 2012 when the road traffic accident occurred and further that he allegedly attempted to bribe so as to pervert the course of justice.

8. The Plaintiff avers that the publication of the false, wrongful and malicious words and statements have exposed him to public scandal, ridicule, contempt and embarrassment in his personal, professional standing and character and continue to cause him to suffer enormous loss and damage.

9. The said words were written, printed and published falsely, maliciously and recklessly without any regard for the Plaintiff's character, reputation, and public standing.

10. The said defamatory words as printed, published and disseminated by the veracity of the alleged statements and allegations, prior to publication and ignored the Plaintiff's letter dated 23rd August 2014.

11. The Plaintiff relied on the following facts and matters to support its claim for aggravated damages;i.That the Defendant published the statements in The Daily Nation on 27th July 2013 and 21st October 2013 with the intent of portraying the Plaintiff as inhumane and corrupt.ii.That the Defendant published the statements without ever contacting or interviewing the Plaintiff to establish the truthfulness of the serious allegations against him and without verifying the facts of the accident.iii.That the Plaintiff wrote an email dated 16th August 2013 to the Defendant's reporter Mr. Paul Ogemba requesting him to schedule a meeting where by the Plaintiff was to clarify the facts of the unfortunate accident;iv.That the Plaintiff wrote demand letters dated 23rd August 2013, 4th October 2013 giving the correct version of events and seeking a retraction and apology but the Defendant did not respond to the same and instead, the Defendant published a more defamatory article about the Plaintiff in the Daily Nation published on 21st October 2013v.Further, that the Plaintiff further wrote a demand letters dated 30th October 2013, 4th December 2013 and 25th March 2014 after the Defendant published the second defamatory article on 21st October 2013 but the same was neither responded to or acted upon;vi.That the Defendant published the one sided story and failed to consider the fact that the Plaintiff rushed the victims to hospital, assisted their families to offset the hospital and funeral expenses and reported the accident to the tourist police who were on patrol and later to Pangani Police Station.vii.The Defendant also did not consider that the Plaintiff was charged and tried by a Court of law in Traffic Case number 2908 of 2013. The Plaintiff pleaded guilty and after mitigation which was done on his behalf by his advocate on record, the court exercised its discretion and ordered him to pay a fine of kshs.100,000. 00. viii.That the defendant published the said articles actuated by ill will and malice and the plaintiff claims aggravated and punitive damages.

12. The defendant entered appearance and filed a defence dated 23/6/2015 denying all the averments set forth in the plaint and in particular, the defendant denied that the statement was defamatory.

13. The defendant raised the following defences;i.That in so far as the words were concerned and in their ordinary meaning or otherwise they contested of expressions of opinion and that they were fair comments and fair information upon facts which were matters of public interest concerning rampart rise in deaths on the roads due to careless and negligent driving.ii.Further and/or in the alternative, the said words in their natural ordinary meaning were published under a sense of public duty and without malice towards the plaintiff and in honest belief that the information contained therein was true and the same were published as fair information contained therein on a matter of public interest namely the rampart rise in deaths on the roads due to careless and negligent driving.

14. The plaintiff who testified as PW 1 adopted his witness statement dated 21/7/2014 as his evidence in chief.

15. PW 1 stated in the said statement that he is a respected businessman and the Managing Director of BTB Insurance Brokers Limited.

16. That the Defendant is the proprietor, printer and publisher of the "Daily Nation' which has a large and wide circulation throughout Kenya and globally through the online edition.

17. In the Saturday Nation of 27th July 2013 the Defendant printed and published or caused to be printed and published of and concerning the plaintiff the impugned f defamatory words under the heading;“Family cries for justice after their daughter's killer walks to freedom',

18. That by a letter dated 23rd August 2013, the plaintiff wrote to the Defendant's editor seeking a publication of the correct version of the incident as the first article was inaccurate and defamatory.

19. The Defendant did not acknowledge receipt of the letter and neither was a retraction published as requested instead the Defendant caused to be published on 21st October 2013 at page 9 of the Monday, Daily Nation, under the heading 'Motorist who caused student's death only got a slap on wrist', the Defendant printed and published or caused to be printed and published the second impugned Article.

20. The plaintiff stated that by the said words in their natural and ordinary meaning, the Defendant meant and was understood to mean:i.That the plaintiff is not law abiding and attempted to flee from the scene of an accident;ii.That he is a careless and reckless driver who disobeys traffic rules;iii.That he is corrupt and does not believe in the rule of law;iv.That he is arrogant, a racist and conceited;v.That the plaintiff lacks morality and decency.

21. The plaintiff said that the said words which in their natural and ordinary meaning, by implication and/or by way of innuendo or otherwise, meant and were understood to mean, that he acted inhumanely on 21st October 2012 when the road traffic accident occurred and further that he allegedly attempted to bribe so as to pervert the course of justice.

22. That the publication of the false, wrongful and malicious words and statements have exposed the plaintiff in his personal and professional standing and character, to public scandal, ridicule, contempt and embarrassment and continue to cause me to suffer enormous loss and damage.

23. That the said words were written, printed and published falsely, maliciously and recklessly without any regard for the plaintiff’s character, reputation, and public standing.

24. That the said defamatory words printed, published and disseminated by the Defendant were reckless and the Defendant did not seek to establish the truth and veracity of the alleged statements and allegations, prior to publication and ignored the plaintiff’s letter dated 23rd August 2013.

25. The plaintiff relied on the following facts and matters to support its claim for aggravated damages;i.The Defendant published the statements in The Daily Nation on 27th July 2013 and 21st October 2013 with the intent of portraying the plaintiff as inhumane and corrupt.ii.The Defendant published the statements without ever contacting or interviewing the plaintiff to establish the truthfulness of the serious allegations against him and without verifying the facts of the accident.iii.The plaintiff wrote an email dated 16th August 2013 to the Defendant's reporter Mr. Paul Ogemba requesting him to schedule a meeting with him where by the plaintiff was to clarify the facts of the unfortunate accident.iv.The plaintiff wrote demand letters dated 23rd August 2013, 4th October 2013 giving the correct version of events and seeking a retraction and apology but the Defendant did not respond to the same and instead, the Defendant published a more defamatory article about the plaintiff in the Daily Nation published on 21st October 2013. v.Further, after the Defendant published the second defamatory article on 21st October 2013, the plaintiff wrote a demand letters on 30th October 2013, 4th December 2013 and 25th March 2014, but the same was neither responded to or acted upon.vi.The Defendant published the one sided story and failed to consider the fact that the plaintiff rushed the victims to hospital, assisted their families to offset the hospital and funeral expenses and reported the accident to the tourist police who were on patrol and later to Pangani Police Station.vii.The Defendant further failed to consider that the plaintiff was charged and tried by a Court of law in Traffic Case number 2908 of 2013. He pleaded guilty and after mitigation which was done on my behalf by my Advocate on record, the Court exercised its discretion and ordered me to pay a fine a fine of Kshs.100,000. 00;viii.The Defendant published the said articles actuated by ill will and malice.

26. In cross examination, PW 1 confirmed that he is the owner of motor vehicle registration no. KBP 875V which was involved in the accident on 21/10/2012 where one Yvonne Chemetich Langat lost her life.

27. PW 1 confirmed that the deceased was crossing the road when the accident occurred.

28. PW 1 said he reported the accident to Muthaiga police station after he had taken the deceased to hospital.

29. He said that he was not aware that the police were reluctant to charge him after the accident.

30. PW 1 further said in cross-examination that he was charged in court on 14/2/2013. He said he first pleaded not guilty and on 23/7/2013, he changed the plea and pleaded guilty.

31. PW 1 said he was fined ksh.100,000 and in default to serve 2 years imprisonment.

32. PW 1 also said he was not aware that the family of the deceased were aggrieved because he was charged several months after the accident occurred.

33. He said was not aware that a complaint letter dated 16/9/2013 was written to the DPP by the advocate representing the family of the deceased.

34. PW 1 also said in cross-examination that he was in touch with the father of the deceased after the accident. He said he paid the medical bills for the 3 victims involved in the accident.

35. In re-examination, PW 1 said he did not run away after the accident occurred as alleged. He also said he was on police bond after the accident and he did not contribute to the delay in being arraigned in court.

36. The plaintiff called one witness, RITA THATHI who testified as PW 2.

37. She adopted her witness statement dated 8/6/2023 as her evidence in chief.

38. PW 2 said in the statement that she is a qualified associate member of the Chartered Insurance Institute of UK and MD at Tausi Assurance Company Ltd.

39. She said she has known the plaintiff as a respected businessman for over twenty-five years.

40. PW 2 said she read the impugned Articles on 27/7/2013 and 21/10/2013 and she was shocked.

41. PW 2 said the Articles gave her the impression that the plaintiff was not the person she thought he was. She thought he lacked basic decency and humanity.

42. PW 2 said she sought to establish the truth and the plaintiff told her the Articles were untrue.

43. PW 2 said the Articles described the plaintiff as an arrogant, racist and concerted person.

44. The defendant called one witness, PAUL OTIENO OGEMBA who testified as DW 1.

45. DW 1 produced his written witness statement dated 15/9/2015 as his evidence in chief.

46. DW 1stated in the said witness statement that he a reporter for the Defendant herein and that it is true that on 27th July 2013, he authored a story titled 'Family cries for justice after their daughter's killer walks to freedom' and after the story complained of was published, he responded to the email from the plaintiff and explained to him how he had obtained the facts to enable him write the story.

47. The Plaintiff invited him to his office to discuss the matter and when DW1 got their he stood by his position that he had got the facts of the story out of court proceedings, which have been produced as documents to be relied on by the Defendant, as well as interviews conducted with the family of the deceased about their feelings on the judgment after it was delivered.

48. Instead of the Plaintiff herein giving DW1 his side of the story, he started shouting demanding that DW1 admits to defaming him and directing DW1 on what he should do. DW1 felt that the situation was getting out of hand and he walked out of the Plaintiff's office without the Plaintiff giving him his side of the story.

49. It is therefore not true that that DW1 admitted to the Plaintiff that the story was based on hearsay and that DW1 had undertaken to re do the story and correct the alleged false allegations. All the statements in the story are backed up by facts.

50. DW1 maintained that it is true that the Plaintiff herein was charged with causing death by dangerous driving a charge to which he pleaded guilty to after initially denying the charge. This can be proved by the charge sheet which has also been produced as the defendant's documents (pages 1-2).

51. That after hearing the family's views on the judgment that was delivered against the Plaintiff herein in the traffic case, which were that they felt that the fine imposed on the Plaintiff herein was inadequate to compensate them for the loss of their child, DW1 wrote another story printed on 21st October 2013 titled 'Motorist who caused student's death gets slap on the wrist.'

52. That DW1 wrote that story based on what the family told him that they felt after delivery of judgment. DW1 said that he is aware that the parents of the deceased student, wrote to the office of the DPP requesting a review of their case as they were not satisfied with the judgment.

53. He is also aware that as a result of the letter by the deceased student's family the DPP instituted a review of the case at the high court being CR REV 521/2014. By instituting the case for review of the magistrate's judgment the DPP reaffirmed to the deceased family that justice had clearly not been done. This also further confirms that the story he published was not based on hearsay but the feelings of the family which had been relayed to the DPP.

54. Further, that the story he wrote was in no way defamatory of the Plaintiff as the story is backed up by facts. The said story was in no way false or malicious, neither did it expose the Plaintiff to public ridicule, scandal and embarrassment in his personal/professional standing and character.

55. DW1 said that he followed the tenets and guidelines set for publishing articles in the newspaper. The publication was not made recklessly and/or sensationally and the same was based from facts whose origins have been indicated.

56. That further, DW1 reiterates that the article and/or publication were published as fair comment on matters of public interest and that the article and/or broadcast were not published with the aim of gaining commercial interest with the story and was in no way defamatory to the Plaintiff Company. Therefore the suit as against the Defendant ought to be dismissed with costs.

57. In cross examination, DW 1 said he contacted the plaintiff after the first publication and the plaintiff threatened him and used unkind words against him.

58. DW 1 said the plaintiff did not give him his side of the story but demanded that DW 1 admits that he defamed him.

59. The plaintiff submitted in writing that the defendant did not deny that they published the impugned articles.

60. The plaintiff also submitted that the Articles were marred with falsehoods and untrue statements.

61. Further, that the allegation that the plaintiff did not take the victims to hospital is false. He said from the proceedings of the traffic case it was clear that the plaintiff took the victim to hospital and he paid the bills.

62. The plaintiff also submitted that the allegations that he was boastful and arrogant during mitigation in the traffic case are false. That the mitigation was given by the plaintiff’s advocate, Mr. Sehmi.

63. The plaintiff also submitted that the allegations which portrayed the plaintiff as arrogant, a racist and a conceited person were actuated by malice.

64. The plaintiff said that the defendant did not have a valid defence. He submitted that the defences of qualified privilege and fair comment were not proved since the impugned articles were incorrect and motivated by ill-will and recklessness with absolute disregard to the impact they would have on the plaintiff’s reputation.

65. The plaintiff submitted that he was entitled to general damages of 17 million and aggravated damages of 8 million and an order directing the defendant to publish a retraction and apology.

66. The defendant on their part submitted that the impugned articles were not defamatory and that they were limited to the traffic case.

67. The defendant further submitted that there was nothing wrong or unlawful in having the members of the deceased family express their sentiments on the traffic case.

68. The defendant further submitted that a reading of the articles published on 22/7/2013 and 21/10/2013 clearly show that the contents were not only derived from the proceedings in the traffic case but also captured the honest opinion of the members of the deceased’s family and therefore no malice may be read into the publications.

69. Further that the articles are protected under the defences of fair comment and qualified privilege.

70. The defendant urged the court to dismiss the plaintiff’s suit with costs to the defendant.

71. I have considered the evidence adduced in this case together with the submissions filed by both parties.

72. It is the duty of the plaintiff to prove his case to the required standard in Civil cases which is on a balance of probabilities.

73. The issues for determination in this case are as follows;i.Whether the plaintiff proved the tort of defamation against the defendant.ii.Whether the defendant has a valid defence against the plaintiff’s suit.iii.Whether the plaintiff is entitled to the remedies he is seeking against the defendant.

74. On the issue as to whether the plaintiff proved his case to the required standard, the elements the plaintiff must prove are as follows;i.That the statement is false.ii.That the statement was published by the defendant.iii.That the statement referred to the plaintiff.

75. I find that there is evidence which is not disputed that the defendant published the statement and that it referred to the plaintiff.

76. The defendant did not dispute that they published the two impugned statements about the plaintiff. The defendant raised the defences of fair comment and qualified privilege.

77. The defendant having admitted that they published the articles, this court must now consider if the defendants have a valid defence against the plaintiff’s claim.

78. The defendant relied on the defences of fair comment and qualified privilege.

79. In the case of Philomena Mbete Mwilu v Standard Group Limited [2022] eKLR, the High court relying on the case of Jacob Mwanto Wangora v Hezron Mwando Kirorio [2017] eKLR described what amounts to fair comment thus:“In Peter Carter – Rucks Treatise on Libel and Slander stated as follows:“…For the defence of fair comment to succeed it must be proved that the subject matter of the comment is a matter of legitimate public interest; that the facts upon which the comment is based are true and that the comment is fair in the sense that it is relevant to the facts and in the sense that it is expressed of the honest opinion of the writer.”

80. I find that it is not in dispute that the plaintiff caused an accident in which one Yvvone Chemetich died.

81. The defendant was reporting on the traffic case and the source of the information was the proceedings of the traffic case and the sentiments of the family based on the conduct of the traffic trial and the sentence which they perceived to be light.

82. There is evidence that the plaintiff was charged in court several months after the accident.

83. The plaintiff was fined kshs.100,000 in default 2 years imprisonment.

84. There is evidence that the family of the deceased Yvvone Chemetich were aggrieved about the sentence and also the delay in prosecuting the case to the extent that they wrote a letter of complaint to the ODPP.

85. DW 1 the author of the articles said he visited the offices of the plaintiff but the plaintiff threatened him and demanded an apology.

86. DW 1 said the source of his information was the traffic case and the family of the deceased.

87. I find that the plaintiff had an opportunity to set the record straight when DW 1 visited his office but the threatened DW 1 and said unkind words to him.

88. I find that DW1 was expressing his opinion on a matter of public interest.

89. The plaintiff did not deny that the issue of rampart rise in deaths on the roads due to careless and negligent driving is a matter of public concern and the publication of the same is for the public benefit.

90. The plaintiff was entitled to right of reply in respect of the Article to correct any factual inaccuracy which he did not exercise.

91. In the case of Slim Vs Daily Telegraph [1968] 1 All E.ER. 497, the court stated as follows;“If [the writer] is an honest man expressing his genuine opinion on a subject of public interest, then no matter that his words conveyed derogatory imputations; no matter that his opinion was wrong or exaggerated or prejudiced, and no matter that it was badly expressed so that other people read all sorts of innuendos into it, nevertheless he has a good defence of fair comment. His honesty is the cardinal test. He must honestly express his real view. So long as he does this, he has nothing to fear, even though other people may read more into it… I stress this, because the right of fair comment is one of the essential elements of freedom of speech. We must ever maintain this right intact. It must not be whittled down by legal refinements. When a citizen is troubled by things going wrong, he should be free to ‘write to the newspaper’ [or write in the newspaper, as is the case herein] and the newspaper should be free to publish his letter [or article]. It is often the only way to get things put right. The matter must of course be one of public interest. The writer must get his facts right; and he must honestly state his real opinions But that being done, both he and the newspaper should be clear of any liability. They should not be deterred by fear of libel actions…”

92. I find that the defendant has a valid defence of qualified privilege and fair comment.

93. I dismiss the plaintiff’s case with costs to the defendant.

94. Had the plaintiff proved his case, he would have been entitled to general damages of ksh.5 million.

95. No aggravated damages would have been awarded since the same are not payable in a case of this nature.

96. However, the plaintiff did not prove his case to the required standard.

97. The plaintiff’s suit is dismissed with costs to the defendant.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 19TH DAY OF SEPTEMBER, 2024. ………………………A. N. ONGERIJUDGEIn the presence of:…………………………… for the Plaintiff…………………………… for the Defendant