[2021] KEHC 9546 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUNGOMA.

CIVIL APPEAL NO. 23 OF 2014

[An Appeal from the Judgment and Decree in Bungoma CMCC No. 42 of 2012 delivered on 30th April 2014 by Hon. C.L. Yalwala (Ag. PM)

CHARLES KATIAMBO MUSUNGU..........................APPELLANT

VERSUS.

DORINE LUSWETI................................................RESPONDENT

JUDGMENT

On 7th October, 2011 the Appellant Charles Katiambo Musungu wrote a letter to the Provincial Director of Education Kakamega concerning irregularities at [Particulars Withheld] Secondary School. In the letter he uttered words in respect of the Respondent Dorine Lusweti, who was the Bursar stating;

b) The Principal and the Bursar are related.

“There are allegations that the Principal and Bursar are related i.e. husband and wife. The Principal as a husband to the Bursar on the same school cannot be trusted with management of School funds as there is great potential for misappropriation of the funds. To illustrate on this, two cheques were written on 9th June 2011 and drawn cash from the bank. All the cheques had the payee as Dorine Lusweti (Bursar). One cheque was to pay workers salaries i.e. cheque No.01931 for Kshs.133,572/= was drawn could not be explained by the Principal and the Bursar. This is a pointer as to how this relationship can cause conflict of interest in an institution.

Mr. Simiyu had a love affair with Dorine without the Principal’s knowledge. When the relationship became sour, Dorine assaulted Mr. Simiyu in the laboratory.”

The Respondent considered these words as defamatory and calculated to lower the Respondents image among right thinking members of society and exposed her to contempt and ridicule that has led to her reputation being lowered and shunned by members of public. For this reason she filed suit seeking, general damages, punitive and aggravated damages and costs of the suit.

The appellant/defendant filed a statement of defence denying the claim and avers that the subject letter was in respect of mismanagement of school funds and never in any way meant to defame the Respondent/Plaintiff.

After full hearing where both the appellant and respondent gave evidence, the trial Magistrate in her Judgment delivered on 26. 2.2014 stated.

In the upshot, I hereby enter Judgment for the Plaintiff against the Defendant for general compensatory damages in the sum of Kshs.400,000/= with interest thereon at Court rates from the date hereof until payment in full. The Defendant shall also pay the costs of this suit to the Plaintiff.

Dissatisfied with the Judgment and decree, the appellant preferred this appeal on the following grounds.

1. The learned trial Magistrate erred in law and fact in holding that the appellant had not established his defence as required by law in the subordinate court contrary to the evidence on record.

2. The learned trial magistrate misdirected himself in finding that the Appellant was liable in defamation despite thereon being evidence to the contrary.

3. The learned trial magistrate erred in law and fact by upholding the respondent’s evidence and excluding the Appellant’s defence of justification, privileged communication, lack of malice and lack of loss and/or injury to the respondent.

4. The learned trial magistrate did not subject the entire evidence to an exhaustive scrutiny and hence his findings are insupportable in law as required of a trial court.

5. The learned trial magistrate erred in law and fact failing to appreciate that correspondence exchanged in the ordinary cause of business and as required by law are not subject to defamation.

6. The learned trial magistrate totally misapprehended his role and duty as a trial court.

7. The learned trial magistrate erred in law and fact by failure to find that the letter dated 7th October 2011 was a privileged communication and/or a fair comment for public interest.

This appeal by consent was canvassed by way of written submissions. Counsel for both parties filed their respective submission. Mr. Murunga for the appellant submitted that the letter and its contents was a privileged communication between the appellant as a member of the Board of[Particulars Withheld]Secondary School and the Provincial Director at Education and Teacher Service Commission. That both the appellant and Respondent had sufficient interest in the matter; no other person received the letter, and that no person was called to testify that he received the content of the letter and as a result that his estimation of the Respondent was lowered. Counsel submitted that while the letter would have hurt the respondents’ feelings, it was never shown that her reputation in the eyes of right thinking members of society was lowered.

Counsel submitted that the trial magistrate did not appreciate the appellants defence of justification, privileged communication and lack of malice in arriving at the judgment. He submitted that no malice was pleaded nor particulars given to infer malice on the part of the appellant. Finally counsel submitted that there is no evidence that any member of society shunned her or treated her with contempt or ridicule to show that she suffered loss or damage.

M/s Mumalasi for the Respondent submitted that the appellant in the pleadings admitted to have written the letter subject of this suit. The authorship and publication of the defamatory words is therefore not disputed. Counsel submitted that the only issue for determination in the trial court was whether the publication was defamatory and if so what damages should the Respondent/Plaintiff be awarded. She submitted that the Respondent proved both issues before the trial court. The respondent/plaintiff demonstrated that the allegations were untrue the appellant could not prove that the respondent had an affair with the school principal or that she misappropriated school funds.

On the appellants’ defence that the letter was a privileged communication and a fair comment on a matter of public interest, counsel submits that even where the defence is pleaded, the defendant must show that the statement was true. On damages counsel submits that the same was properly assessed as by law and should not be disturbed.

This is a first appeal. The duties of the first appellate court were well stated in Selle & Another Vs. Associated Motor Boat Company Ltd & Another 1968 E.A. 123 where the court stated;

That its duty is to re-examine and re-valuate the evidence and arrive at tis won conclusion, taking into account the fact that the appellate court had no opportunity of hearing or seeing the parties as they testified and therefore, make an allowance in that respect.

The Respondent evidence before the trial Court in respect of this suit was as follows;

I am Dorine Lusweti. I stay at Kikuyu, Nairobi. I am the finance Officer at Alliance High School. I have been working there since 27/01/2012. Before that I was working at[Particulars Withheld]Secondary School. I was the School Bursar. I am married. I have 2 children. My husband is Edward Khisa Barasa. My husband never worked at[Particulars Withheld]Secondary School. Charles Katiambo Musungu is known to me. He used to work at[Particulars Withheld]School when I was there as a Bursar.

On 7. 10. 2011, the said Defendant wrote a letter that I was relating with the School Principal as husband and wife and also that I had misappropriated funds of school. I see the letter here written by him. The address is care of Wamunani Primary School. Its addressed to Provincial Director of Schools, Kakamega Province.

The letter is copied to the Secretary TSC and Permanent Secretary, Ministry of Education.

The information I am complaining of is on page 2. It states the Principal and Bursar are related as husband and wife. The principal then was Conrade Walimbo. He was not my husband. He has never been one to me. I have never had an affair with him and I had no such intentions. I see the letter also states “misappropriation of fund - cheque No.1931 and 1931 for Kshs.133,575/= and Kshs.133,572/=.”

There was no misappropriation.

I see the letter that the relationship was causing conflict of interest in the school. The letter also state that Mr. Simiyu had a love affair with me without the Principal’s knowledge and that I later assaulted him. Its on page 5 of the letter on line 1.

Simiyu’s full names are Dickson Simiyu. He was Lab Technician. I have never had a love affair with the said Dickson Simiyu. Neither any other man except my husband. There is a defamation case against the said Dickson and the Principal and are pending in Court. I see page 9 the letter. It has a list. I see cheques No. 1931 on the list. Cheque No.1932 is not on the list.

Cheque No.1931 was in my name for Kshs.133,575/=. The amount was to pay Casual workers and to purchase items for the school. Many cheques were written my name. As then I used to withdrawn funds for the school. I was given that mandate by the board of[Particulars Withheld]Secondary School.

The appellant/defendant in gave his evidence in defence stating;

I wrote the letter that I did as my effort to address the issues with the board had been rejected. I thus felt privileged as a member of the Board to write that letter dated 7th October 2011.

I see at paragraph 3 of the plaint, it states that I said that Mr. Simiyu had a love affair with Dorine. It’s time that wrote that in my letter of the PDE, Kakamega. My intention was to have the PDE intervene and separate the two to work in different schools.

When the Board learnt of that letter, they became hostile to me. They called a meeting on 6/3/2012 and dismissed me from being a Board member forcefully. They felt that I had exposed them and my efforts had led to some transfers including the bursar, Principal among others. It was the PDE, Kakamega in liason with DEP. By the time the bursar/plaintiff was transferred to Alliance High School. She had fully been paid and it was voluntarily. Her transfer to Alliance was like a promotion. As a National School, it pay better.

I had no malice in writing the letter. I only wanted to assist the school so that its management was done well.

I thus pray to court to dismiss the claim against me with costs.

On being Cross-Examined by M/s Mumalasi for the Respondent/Plaintiff on the truth of the allegation in the letters, he stated;

The Bursar was Interviewed in 2007 for her job in the School. That is when I came to know her. I am not aware that the Plaintiff/Bursar is wife to Edward Khisa Barasa and that they have 2 children.

I know that the Plaintiff was the Principal’s wife as she got a child with the principal when she was working at the school. The plaintiff initially stayed in the school compound then moved to Bungoma town. By the time I wrote the letter the Principal was staying in the school compound. The evidence that the Principal and Bursar are husband and wife is the child who was born. A D.N.A. test can be done to confirm that.

In my statement filed herein I did not state that the Principal and Bursar had a child. By writing the letter, I wanted Bursar to be transferred to a different school and for an audit of the school’s funds to be done.

The tort of defamation has been defined in both legal literature and decisions. In Winfield on Tort, defamation is defined as follows;

“Defamation is the publication of a statement which tends to lower a person in the estimation of right thinking members of society generally or which tends to make them shun or avoid person.”

Black’s Law Dictionary defines defamation as the act of harming the reputation of another by making a false statement to a third person.

In John Edward Versus Standard Ltd HCCC No. 1062 of 2005 the Court held.

“A statement is said to be defamatory when it has a tendency to bring a person to hatred, ridicule or contempt or which causes him to be shunned, or avoided or has a tendency to injure him in his office, profession or calling. The ingredients the tort of defamation are;

1. The statement must be defamatory

2. The statement must refer to the Plaintiff

3. The statement must be published by the Defendant

4. The statement must be false.

Hulsbury’s Law of England defines defamatory statement, thus;

“a defamatory statement is a statement which tends to lower a person in the estimation of right thinking members of society generally or to cause him to be shunned or avoided or to expose him to hatred, contempt, or ridicule or to convey an imputation on him disparaging or injurious to him in his office, profession, calling, trade to business.”

From the pleadings and submissions, the appellant in his letter made two allegations in respect of the respondent. (a) That the respondent was married to the school principal. (b) That she had been involved in misappropriation of school funds. The trial court after reviewing all the evidence found rightly in my view that the allegation by the appellant were not true, referred to the plaintiff/respondent and were published by the appellant.

He main issue raised by the appellant in this appeal is that the communication was privileged and was a fair comment on a matter of public interest. It is a defence to a tort of defamation where the defendant claims that the statement was made in a context generally deserving of protection for policy reasons. There are two types of Absolute privilege which protects the statement from a defamation claim. Privilege cases covers like testimony in court, by a witness, statement by lawyers and judges in proceedings, Section 6 of the Defamation Act states;

A fair and accurate report of any newspaper of proceedings heard before any court exercising Judicial authority within Kenya shall be absolutely privileged provided that nothing in this section shall authorize the publication of any blasphemous seditious or indecent matter”and communication between husband and wife.

Qualified privilege may apply where the matter is of public interest or concern. The defence of qualified privilege is available when the defendant shows.

a. The statement is made in the discharge of a public duty.

b. Statement made on a subject matter in which the defendant has legitimate interest.

c. Statement made by a defendant to obtain redress for a grievance.

d. Reports of parliamentary proceedings

e. Extracts from or abstracts of Parliamentary reports, papers, votes or proceedings published by the authority of Parliament. [See Gatley on Libel and Slander 8th Edition page 441]

In Hulsbury’s Law of England 4th Edition Vol. 28 at Paragraph 109 the rationale for the defence of qualified privilege is explained as follows.

“On grounds of Public policy the law affords Protection on certain occasions to a person acting in good faith and without any improper motive who makes a statement about another person even when that statement is in-fact untrue and defamatory. Such occasions are called occasions of qualified privilege. The principal categories of qualified privilege are;

1. Limited communication between persons having a common and corresponding duty or interest to make and receive the communication.

2. Communication to the public at large or to a Section of the Public made pursuant to a legal, social or moral duty to do so in reply to a public attack.

3. Fair and accurate reports published generally or proceedings of specified persons or bodies.

For the defence of qualified privilege to be available the defendant must show that the statement was made (a) in good faith and (b) without any improper motive. Where the plaintiff establishes that the defendant acted in bad faith and was driven by improper motives then the defence of qualified privilege would have been demolished.

Counsel for the appellant submitted that failure by the respondent to give particulars of malice was fatal and therefore as malice was not pleaded the appellants’ defence of qualified privilege stands and defamation has not been established. This is not in my view the truth. It is the defendant who desires the court to find that there was qualified privilege to prove that the statement was made in good faith and with proper motive and without malice in order to avail himself of the of the defence. All the plaintiff needs to do is to give particulars of fact and matters which would lead to an inference of malice on the part of the defendant.

In Phiness Nyaga Vs. Gitobu Imanyara [2013 eKLR] Odunga J said

“Evidence of malice may be found in the publication itself if the language used is utterly beyond or disproportionate to the facts. That may lead to an inference of malice…………malice may also be inferred from the relations between parties. The failure to inqure into the facts is a fact from when malice, may be properly be drawn.”

In this appeal the appellant in the subject letter wrote that the respondent and principal are related i.e. husband and wife. He also stated that Simiyu had a love affair with Dorine (Respondent) without the principals’ knowledge. When the relationship became sour Dorine [Respondent] assaulted Simiyu in the laboratory. He maintained this stand in his evidence even when evidence was adduced that the Respondent was married to Edward Khisa Barasa with whom she had 2 children. On the motive for writing the letter he said.

“By writing the letter I wanted the bursar to be transferred to a different school and an audit of the school funds be done”

Even when presented with facts that the bursar was not married to the principal, the appellant maintained that stand. His failure to inquire into the facts and even when presented with the facts, maintaining his allegation in my view is a demonstration of malice on the part of the appellant. Where malice is proved or inferred, it destroys the defence of privilege advanced by the appellant.

I am therefore satisfied that the respondent/plaintiff proved in the trial court that the words were defamatory, which in their natural meaning meant that the respondent was immoral and though married was having an affair with not only the principal but also with one Simiyu. These words were untrue and defamatory in nature.

I therefore uphold the finding of the trial court on liability. As the appellant did not challenge quantum of damages, I make no finding on the same.

In the result I find no merit in this appeal which is hereby dismissed with costs.

Dated and Delivered at Bungoma this 26Th day of January, 2021

S.N. RIECHI

JUDGE