[2017] KEHC 8364 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

CONSTITUTIONAL PETITION NO 56 OF 2013

In the matter of application under article 2, 19, 22 (1), 23, 165 930 (b) of the Constitution of Kenya 2010

AND

In the matter of protection of the Constitutional Rights enshrined in chapters of the constitution in so far as the minor's constitutional rights under articles 28, 31, 53 (i) (d) and (2) continue to be violated

In the matter of section 2 (4), 13, 18, 19, 22, 76 of Children's Act, Laws of Kenya

AND

In the matter of the Media Act cap 411 B of the Laws of Kenya

AND

In the matter of the preamble and articles 2, 7, 16, 23, 24, 25, 26, United Nations International Covenant on Civil and Political Rights

AND

In the matter of the preamble, articles 1, 2, 3, 6, 16, 17 (e), 19, (1) 37, 40 (2) (vii) of the United Nations Convention on the Rights of the Child

AND

In the matter of the preamble, articles 2, 3, 4, 5, 10, 11, 16 of the African Charter on Human and People's Rights

AND

In the matter of the preamble, articles 2, 3, 4, 5, 10, 11, 16 of African Charter on the Rights and Welfare of the Child

AND

In the matter of the UN Principles on the Tenets o Democracy under United Nations Charter

AND

In the matter of the Standard Group, Royal Media Group and Good News Mission Church

AND

IN THE MATTER OF APPLICATION BETWEEN

CHARLES MUTURI MACHARIA (Suing As The Next Friend

Of And On Behalf Of CHRISTINE WANGARI MUTURI & 6 OTHERS.....PETITIONERS

VERSUS

THE STANDARD GROUP & 4 OTHERS……………………………......RESPONDENTS

JUDGEMENT

On 5th November 2012, the petitioners who were minors and students at Mugoiri Girls's School were arraigned before a Murang'a Court facing arson related charges. The same day the Respondents published and or televised images of the said students as follows:- (a) the 5th Respondent is accused of having reported and or televised and published a story on the alleged attempted arson at the said school and transmitted images of the minors with a caption "Arson Suspects." (b) The 1st and 3rd Respondents are accused of posting the pictures and voice of the alleged incident in the You Tube with the intention of reaching a wider audience, (c) while the 2nd and 3rd Respondents are accused of reporting and or televising the said incident and transmitted images of the minors. (d) The 4th Respondent is alleged to have reported and/or published the said story on its website and published and or transmitted images of the minors. The 4th Respondent is also accused of having reported and or publishing the names of the minors online whereupon members of the public posted their comments some of which touched on the characters of the minors which exposed them to what the petition describes as " the judgemental society." (sic)

The petitioners claim is that publishing of the said images offended the provisions of the Children's Act, particularly sections 4 (2), 13, 18, 19, 22 and 76 and also contravened international conventions guaranteeing the rights to privacy for children in conflict with the law and added that the said infringement is a breach of the constitutionally guaranteed right to privacy hence the declarations sought in the petition and claim for damages for the said breach.

The common thread in the Respondents response to the said allegations is that the story as reported was factually correct, that the reporting was made in good faith, that is was fair comment, that there was no malice at all, that the report was made in public interest, that the Respondents have constitutional right to freedom of expression, that the right to privacy is not absolute, that the ages of the minors was not known at the material time, that the proceedings in question were held in public and that the petitioners have not established a basis for any of the reliefs sought and without prejudice to the generality of the foregoing, the petitioners suit is unsustainable in law.

At the outset, I do acknowledge the fact that the criminal justice system for minor offenders or children in conflict with the law must be separate and apart from that of adults and must emphasize: (1) rehabilitation and reintegration: (2) fair and proportionate accountability; (3) enhanced personal protection to ensure that children are treated fairly and that their rights, including their rights to privacy, are protected.

I must also point out that special considerations apply in respect of proceedings against minor offenders and in particular, children have rights and freedoms in their own right, such as a right to be heard in the course of and to participate in the process, (other than the decision to prosecute), that lead to decisions that affect them, and young persons have special guarantees of their rights and freedoms.

It is correct to state that the children Criminal Justice system encourages the use of extrajudicial measures by the courts. Such measures are designed to be timely, to repair harm, to encourage families to become involved, to give victims an opportunity to participate, and to respect the rights and freedoms of the children. Thus the law provides for the imposition of extrajudicial sanctions so as to protect minor offenders from unwarranted publicity. But, it is also correct to point out that this right is not absolute and can be limited to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom and taking into account all the relevant factors including those prescribed under Article 24 of the constitution among them the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others.

The children's Act contains provisions for the protection and privacy of the children. But I must hasten to point out that the said provisions must be appreciated in light of the constitutional rights such as the limitations provided under article 24 cited above and freedom of expression provided under section 33 of the constitution and the supremacy of such constitutional provisions. Section 4(2)(3) of the Children's Act states the principle that ought to guide the courts in determining matters where the welfare of children is concerned. The said provision states as follows:-

(2) In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

(3) All judicial and administrative institutions, and all persons acting in the name of these institutions, where they are exercising any powers conferred by this Act shall treat the interests of the child as the first and paramount consideration to the extent that this is consistent with adopting a course of action calculated to—

Section 76 of the Children's Act provides the general principles with regard to proceedings in Children’s Court. Section 76 (5) provides as follows:-

(5) any proceedings concerning a child, whether instituted under this Act or under any written law, a child’s name, identity, home or last place of residence or school shall not, nor shall the particulars of the child’s parents or relatives, any photograph or any depiction or caricature of the child, be published or revealed, whether in any publication or report (including any law report) or otherwise.

In fact failure to comply with the above provision constitutes an offence punishable under section 76 (6). I must hasten to add that what is before me is not a criminal trial envisaged under section 76 (6) cited above but a constitutional petition seeking inter alia declarations that the petitioners constitutional right to privacy have been violated and relief for damages. It follows that the standard of prove required is the legal standard of prove for cases of this nature and not for criminal trials and at the outset I must point out that the petitioners are legally required to prove their case to the required standard.

Open justice is a hallmark of the rule of law. It is an essential requisite of the criminal justice system that it should be administered in public and subject to public scrutiny. The media plays a vital role in representing the public and reflecting the public interest. However, as is well known, there are some exceptions to these principles. Difficulties and uncertainty can sometimes arise in ensuring they are correctly applied and observed.

Article 50 (d) of the constitution provides for the right to a trial to be held in public subject to the limitation under sub article (8). The general rule is that the administration of justice must be done in public, the public and the media have a right to attend all court hearings and the media is able to report those proceedings fully and contemporaneously. The public has the right to know what takes place in the criminal courts and the media in court acts as the eyes and ears of the public, enabling it to follow court proceedings and to be better informed about criminal justice issues. The open justice principle is central to the rule of law. Open justice helps to ensure that trials are properly conducted. It puts pressure on witnesses to tell the truth. It can result in new witnesses coming forward. It provides public scrutiny of the trial process, maintains the public’s confidence in the administration of justice and makes inaccurate and uninformed comment about proceedings less likely. Open court proceedings and the publicity given to criminal trials are vital to the deterrent purpose behind criminal justice. Any departure from the open justice principle must be necessary in order to be justified. To use the provisions of article 50 (8) 'if the exclusion is necessary, in a free and democratic society, to protect witnesses or vulnerable persons, morality, public order or national security.'

The proceedings in question were held in public. No application was made to invoke the provisions of sub article 8 cited above. It is not disputed that what was reported it what transpired in court. It is not disputed that the photographs were published. But in addition to the defenses raised by the Respondents discussed below, the Respondents also dispute that any loss was occasioned to the petitioners. In my view, the petitioners are obliged to place evidence of damage/loss suffered because it must first be shown that there has been damage suffered as a result of the breach of the constitutional right before the court can exercise its discretion to award damages in the nature of compensatory damages. It is only if some damage has been shown that the court can exercise its discretion whether or not to award compensatory damages. The practice developed in constitutional matters is to award damages for violation of constitutional rights, but it cannot be overemphasized that this is after there is evidence of the damage.

In the instant case there is no evidence of damage suffered as a result of the breaches for which the petitioners can be compensated. It has not been demonstrated the nature, extent or loss whether physical or psychological that the petitioners suffered as a result of the publication. Close attention to the facts of each individual case is required in order to decide on what is required to meet the need for vindication of the constitutional right which is at stake. I find guidance in the following words expressed in Romauld James v The Attorney General of Trinidad and Tobago[1] where citing previous decisions it was held:-

“When exercising this constitutional jurisdiction the court is concerned to uphold, or vindicate, the constitutional right which has been contravened. A declaration by the court will articulate the fact of the violation, but in most cases more will be required than words. If the person wronged has suffered damage, the court may award him

compensation……………………………….”

The key words in the above passage is "If the person wronged has suffered damage, the court may award him compensation." Thus, the person alleging breach of constitutional rights must prove the loss suffered.The evidence tendered on behalf the petitioners in my view did not demonstrate the alleged loss to the required standard. A report by the relevant professional could have assisted the court to show if at all the girls in question suffered mental or physiological or physical harm and if so to what extent if at all it affected their lives or academic standards. No school report forms prior to the incident or after were tendered or any reports on their conduct or behaviour after and before the incident were produced.

Courts have over the years established that for a party to prove violation of their rights under the various provisions of the Bill of Rights they must not only state the provisions of the Constitution allegedly infringed in relation to them, but also the manner of infringement and the nature and extent of that infringement[2]and the nature and extent of the injury suffered (if any).

I am fully aware that it is self evident that proving an injury or loss, which is neither physical nor financial, presents special problems for the witnesses and the judicial process, which aims to produce results objectively justified by evidence, reason and precedent. Subjective feelings of upset, frustration worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress, depression and so on and the degree of their intensity are incapable of objective proof. But my fear is that there was no attempt at all to plead or prove any of the above.

I am also alive to the fact that although they are incapable of objective proof or measurement in monetary terms, hurt feelings are none the less real in human terms. The courts and tribunals have to do the best they can on the available material to make a sensible assessment, but I am constrained by lack of sufficient evidence to enable me to justify or explain a particular sum with the same kind of solid evidential foundation and persuasive practical reasoning available in the calculation of financial loss or compensation for bodily injury.

In Ministry of Defence v Cannock[3]the court stated: -

“Compensation for injury to feelings is not automatic. Injury must be proved. It will often be easy to prove, in the sense that no tribunal will take much persuasion that the anger, distress and affront caused by the act of discrimination has injured the applicant's feelings. But it is not invariably so.”

In my view the petitioners have failed to discharge the burden of prove to the required standard. To my mind the burden of establishing all the allegations rests on the Petitioners who are under an obligation to discharge the burden of proof. All cases are decided on the legal burden of proof being discharged (or not). Lord Brandon in Rhesa Shipping Co SA vs Edmunds[4] remarked:-

“No Judge likes to decide cases on the burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course to take.”

Whether one likes it or not, the legal burden of proof is consciously or unconsciously the acid test applied when coming to a decision in any particular case. This fact was succinctly put forth by Rajah JA in Britestone Pte Ltd vs Smith & Associates Far East Ltd[5]:-

“The court’s decision in every case will depend on whether the party concerned has satisfied the particular burden and standard of proof imposed on him”

With the above observation in mind, the starting point is that whoever desires any court to give judgement as to any legal right or liability, dependant on the existence of fact which he asserts, must prove that those facts exist. The burden of proofin a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.The burden of proof as to any particular fact lies on that person who wishes the court to believe its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

The standard determines the degree of certainty with which a fact must be proved to satisfy the court of the fact. In civil cases the standard of proof is the balance of probabilities. In the case of Miller vs Minister of Pensions,[6]Lord Denningsaid the following about the standard of proof in civil cases:-

‘The …{standard of proof}…is well settled. It must carry a reasonable degree of probability…..if the evidence is such that the tribunal can say: ‘We think it more probable than not’ the burden is discharged, but, if the probabilities are equal, it is not.’

In my view the reason for this standard is that in some cases, the question of the probability or improbability of an action occurring is an important consideration to be taken into account in deciding whether that particular event had actually taken place or not. It is a fundamental principle of law that a litigant bears the burden (or onus) of proof in respect of the propositions he asserts to prove his claim. The standard of proof, in essence can loosely be defined as the quantum of evidence that must be presented before a court before a fact can be said to exist or not exist.

I have carefully considered the Petition before me and the response by the Respondents together with the submissions filed by both parties and I find that the Petitioners have failed to prove the alleged loss/damage (if any) to the required standard. In fact, other than the allegations that the photographs were published, there is no supporting evidence or particulars at all to support the alleged loss that may have been suffered by them if any, and in the event that I am wrong in so finding, I add that since the award of damages in cases of this nature is a matter of the courts discretion,[7] considering the nature and circumstances of the case and the public interest discussed below, I would in all honesty be reluctant to exercise my discretion and award damages under such circumstances.

My understanding of the defences raised by the Respondents include justification, fair comment, public interest and their constitutional right to freedom of expression. I propose to discuss some of these defences below.

(a) Justification (i.e. the truth of the statement). I need not belabor on this. The truth of the story in question has not been disputed. The minors were arraigned in court facing arson related charges. They took plea before the court. The Respondents reported court proceedings as it happened. No evidence was tendered to show that they distorted the story. I find that his defence is available to the Respondents.

(b) Fair comment (i.e., whether the statement was a view that a reasonable person could have held). To me, the images in question were captured in court while the minors were entering their plea to the charges against them. There is nothing to demonstrate that the Respondent acted unfairly.

(d) Public interest.The essence of this defence is that the respondent has a duty to disseminate the information complained of and that that the public have a corresponding interest in receiving the story or in this case the images complained of. Even though this defence is by no means limited to the publication of stories by the media, but it is in that context that the idea of publication in the public interest is at its most pronounced. The leading case on the defence remains Reynolds v Times Newspapers,[8] where the House of Lords proposed a number of guidelines that a defendant should observe if wishing to argue that a publication was responsible and in the public interest. The said guidelines, can in my view apply in cases such as the case before me. Those non-exhaustive guidelines, listed by Lord Nicholls, require the person publishing the story to consider:-

1. The seriousness of the allegation/ story/information, i.e. if it is not true what will be the level of misinformation to the public and what will be the corresponding harm to the individual.

2. The nature of the information and the extent to which the subject-matter is a matter of public concern.

3. The source of the information and whether it is reliable or motivated by malice and/or avarice.

4. Whether suitable steps have been taken to verify the information.

5. Whether the allegation in a story has already been the subject of an investigation which commands respect.

6. Whether it is important that the story be published quickly.

7. Whether comment was sought from the claimant, or whether that was not necessary in the context of the story.

8. If the article or story includes the gist of the claimant’s version of events.

9. Whether the article or story is written in such a way as to amount to statements of fact, or whether it raises questions and is suggestive of the need for further investigation.

10. The timing of the publication.

I have carefully studied the affidavit evidence by all the parties and the submissions filed in court and considering the nature of the case at hand, and considering that at or about the material time there was widespread unrest in many schools where properties were destroyed and sadly many students have lost life in such cases, I am satisfied that the story in question and the publication of the photographs was in my view a matter of public interest hence the question of violating the petitioners rights does not arise.

(e) Absence of malice. In my view, the petitioners have not demonstrated malice in the publication in question. It has not been shown that the publication was factually wrong. Evidence of malice may be found in the publication itself if the language used is utterly beyond or disproportionate to the facts. The evidence tendered was that the proceedings were reported as they happened without distortion. There is no material before the court to warrant the court to infer malice. The failure to inquire in the facts is a fact from which inference of malice may properly be drawn.[9] There is nothing before the court to show that the Respondents did not accurately report the proceedings.

The question whether or not a private citizen or entity can be sued for violation of constitutional rights was also raised by one of the Respondents and I find it proper to address it. This raises two issues, namely, the jurisdiction of this court and whether the Respondents have been properly sued. In the case of Samuel Kamau Macharia v. Kenya Commercial Bank and Two others,[10]the Supreme Court of Kenya correctly stated that “A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law.."Article 165(3) (b)grants jurisdiction to this Court in the following terms:- jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;Article 23of the Constitution also grants this Court authority to uphold and enforce the Bill of Rights.

From the above constitutional provisions, it cannot be in dispute that this Court has jurisdiction, in the wider sense, to superintend over the matter at hand in as far as a breach of the Bill of Rights is alleged. What appears to be in contention is whether the Court has jurisdiction in the narrower sense, that is, power to enter into an inquiry into the dispute at hand, the question being whether affairs of private citizens ought to be brought under the purview of our Courts, and to this extent, whether constitutional provisions can and ought to be infused into and scrutinize conduct of private citizen.

Article 2(1)of the Constitution provides that 'This Constitution is the Supreme Law of the Republic and binds all persons ….' Further,Article 20(1)states that, “the Bill of Rights applies to all law and binds all state organs and all persons”. Article260defines person to include company, association or other body of persons whether incorporated or unincorporated.The Respondents are legal persons. Finally, Article 21(1)spells out the duty of all persons to protect the Bill of Rights in the following terms:

“It is a fundamental duty of the state and every state organ to observe, respect, protect, promote and fulfill the rights and fundamental freedoms in the Bill of Rights.”

The Bill of Rights is an integral part of Kenya’s democratic state and is the framework for social, economic and cultural policies and must be protected and promoted for the purpose enunciated under Article 19(2) which is “to preserve the dignity of individuals and communities and to promote social justice and the realisation of the potential of all human beings.”

Article 22(1) gives every person a right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened. Article 258 further gives every person the right to institute court proceedings claiming that the Constitution has been contravened, or is threatened with contravention. The Court is enjoined by the Constitution under Article 20(3), in giving effect to the rights enshrined in the Bill of Rights, to develop the law to the extent that it does not give effect to a right or fundamental freedom; and adopt the interpretation that most favours the enforcement of a right or fundamental freedom Further, Article 20(2)provides that every person shall enjoy the rights and fundamental freedoms in the Bill of Rights to the greatest extent consistent with the nature of the right or fundamental freedom.

When confronted with a similar issue as to whether only public entities could be said to be in violation of fundamental rights, the Court in the case of Satrose Ayuma & 11 others v Registered Trustees of the Kenya Railways Staff Retirement Benefits Scheme & 3 others,[11] observed as follows at para. 55;

“Looking at the provisions of Articles 2(1), 19(3) and 20(1), I am certain that the Bill of Rights can be enforced as against a private citizen, a public or a government entity such as the 1st and 2nd Respondents. I say so deliberately and with firmness because previous decisions of this Court on the subject have been completely misunderstood and misread by more persons than the misguided journalist masquerading as a scholar of Constitutional interpretation. The Bill of Rights is therefore not necessarily limited to a State Organ as argued by the 1st and 2nd Respondents.”

Similarly, in the case of Isaac Ngugi v Nairobi Hospital & 3 Others, [12]the Court had this to say:-

“[19]. Counsel for the respondent argued that the case does not raise constitutional issues and should be determined as a contractual matter through the usual procedure for determining such matters. [20] The petitioner on the hand argued that he is on sound footing as the case is about breaches of the Bill of Rights and as such he is entitled to move the court under Article 22which provides that any party whose fundamental rights and freedoms are threatened or violated may move the court for appropriate relief. [21] The approach adopted in the Kenya Bus Case (supra)cannot survive the Constitution. The supremacy clause of our Constitution recognises that the Constitution is the supreme law and binds all persons and all State organs at both levels of government. Article 3(1)states that every person has an obligation to respect, uphold and defend the Constitution while Article 19(1) provides that, “The Bill of Rights applies to all law and binds all State organs and all persons.”The term ‘person’ includes a company, association or other body of persons whether incorporated or not such as the hospital, in accordance with Article 260 (See also Sonia Kwamboka Rasugu v Sandalwood Hotel and Resort Limited and Others Nairobi Petition No. 156 of 2011 [2013] eKLRat Para. 30).

“[25] I take the positions that from the history of the country and the events leading up to the promulgation of the Constitution leave no doubt that it was intended to be a transformative document. I would be hesitant to adopt a hard and fast position that would prevent the principles and values of the Constitution being infused into the lives of ordinary Kenyans through application of the Bill of Rights to private relationships where necessary.”

In the case of Richard Nduati Kariuki vs Leonard Nduati Kariuki and Another[13]Nyamu J., cites a quote by J. Balkan, The Corporation: The Pathological Pursuit of Profit and Power[14] as follows:-

“The diffusion of political authority in the context of the global economy has led to concerns about the ability of constitutionalism to operate as a check on political power if it speaks only to the state. Moreover,there is growing awareness-perhaps fuelled by recent examples of corporate corruption and wrong doing-that private power as much as public power has the capacity to oppress.”[Emphasis ours]

The South African Constitutional Court in Motala & Another vs University of Natal[15] remarked that:-

“It goes without saying that many of the entrenched rights are, by their very nature, exclusively 'vertical' in their operation. But many of them are, in my view, not. For the purpose of furnishing these reasons I need only say that I consider that the rights entrenched in sections 8(1), 8(2) and 32, which are the only entrenched rights in issue before me, are enforceable not only against the state or its organs as defined, but also against individuals, natural or juristic, who may be disposed to threaten them or interfere with the exercise of them.”

It must be obvious by now that the respondents cannot be allowed to wave a private individual card to bar this Court, when properly moved for breach of fundamental rights and freedoms. It cannot be safe, in a progressive democratic society, to arrive at a finding that allows private entities to hide behind the cloak of ‘privacy’ to escape constitutional accountability. I think that it would be to accord a narrow, constricted interpretation to our Supreme Law, contrary to the canons of constitutional interpretation that have for ages infused our judicial system and which now find constitutional sanction under Article 259 to accede to such a proposition.[16]To accede to the proposition that private individuals are insulated from the constitutional duty to respect and uphold fundamental rights, is I believe, to reverse the intention of the framers of the Constitution. This would effectively render the constitutional protections of little or no practical value.

In conclusion, as pointed earlier, this is a constitutional petition and the petitioners have to discharge the burden of proof. In view of my analysis of the facts of this case and the law as shown above, I find that the petitioners have failed to prove their case against all the Respondents to the required standard. The up short is that this petition is dismissed the costs to the Respondents.

Orders accordingly.

Right of appeal 30 days.

Dated at Nairobi this 2ndday ofFebruary2017

John M. Mativo

Judge

[1] {2010} UKPC 23

[2] See John Kimanu vs Town Clerk, Kangema NBI Pet. No. 1030 OF 2007

[3] {1994|} ICR 918, 954

[4] {1955} 1 WLR 948 at 955

[5]{2007} 4 SLR (R} 855 at 59

[6] {1947} 2ALL ER 372

[7]Supra note number 2

[8] {1999}, http://www.publications.parliament.uk/pa/ld199899/ldjudgmt/jd991028/rey01. htm

[9] Phineas Nyagah Vs Gitobu Imanyara {2013} eKLR

[10] Civ. Appl. No. 2 of 2011

[11] Petition No. 65 of 2010 {2013} eKLR

[12] Nairobi Petition No. 407 of 2012 {2013} eKLR,

[13] {2006} Misc App. No. 7 of 2006 [2006]eKLR

[14] (New York, Free Press, 2004)

[15]{1995} 3 BCLR 374

[16] See constitutional petition number 160 of 2013