[2022] KEHC 13664 (KLR)

Chepkwony & another v CCR (Civil Appeal 28 of 2021) [2022] KEHC 13664 (KLR) (13 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13664 (KLR)

Republic of Kenya

In the High Court at Bomet

Civil Appeal 28 of 2021

RL Korir, J

October 13, 2022

Between

Agnes Chemutai Chepkwony

1st Appellant

Winnie Chepkemoi

2nd Appellant

and

CCR

Respondent

(Being an Appeal from the Judgment of Hon. L. Kiniale Principal Magistrate in PMCC Number 41 of 2018 - Bomet delivered on 20th September 2021)

Judgment

1. The Respondent (then Plaintiff) sued the Appellants (then Defendants) for General and Exemplary Damages that arose from Defamation by Slander. Judgment in the trial court was delivered on September 20, 2021 where the court awarded the Respondent Kshs 500,000/= as General damages and Kshs. 100,000/= as Exemplary damages in the defamation suit.

2. Being dissatisfied with the Judgment of the trial court, the Appellants via a Memorandum of Appeal dated October 6, 2021 appealed to this court on the following grounds:I.That the learned Magistrate erred in law and in fact in disregarding the Appellants evidence thus arriving at a wrong judgment.II.That the learned Magistrate erred in law and in fact by failing to consider that no Certificate of Translation was produced before the trial court to ascertain the true meaning of the alleged defamatory words.III.That the learned Magistrate erred in law and in fact in holding that the Plaintiff had proved all essential elements of defamation to the required standard.IV.That the learned Magistrate erred in law and in fact in holding that the Appellants uttered the defamatory words.V.That the learned trial Magistrate erred in law and in fact in holding that the words uttered were defamatory in nature.VI.That the learned Magistrate erred in law and in fact in holding that the alleged defamatory words were made with reference to the Respondent herein.VII.That the learned Magistrate erred in law and in fact in holding that the Respondent had been defamed by the Appellants as the evidence adduced did not support the Respondent’s claim.VIII.That the learned Magistrate erred in law and in fact by relying on controverted and hearsay evidence to arrive at a wrong determination and award.IX.That the learned Magistrate erred in law and in fact in awarding excessive and punitive damages.X.That the learned Magistrate erred in law and in fact in awarding compensatory damages of Kenya Shillings Five Hundred Thousand Shillings (Kshs 500,000) as general damages and Kenya Shillings One Hundred Thousand Shillings (Kshs 100,000) as exemplary damages to the Respondent which amount is not founded on any outline, legal principle and precedent and is inordinately high when taking into account the evidence, the pleading’s and all other factors to be considered when assessing damages for defamation.XI.That the learned Magistrate erred in law and in fact by basing the award on extraneous considerations and factors.XII.That the learned Magistrate erred in law and in fact in failing to consider the submissions of the Appellant’s counsel together with the case law in support.XIII.That the decision of the learned trial Magistrate as a whole as contained in the Judgment dated 20th September 2021 is legally untenable, against the weight of evidence and ought to be set aside.

3. The Appellant therefore prayed that the aforesaid Judgment be set aside.

4. Being the first appellate court, this court has a duty to re-evaluate and re-examine the evidence of the trial court and come to its own findings and conclusions, but in doing so, to have in mind that it neither heard nor saw the witnesses testify. This principle was espoused in the case of Selle & Another vs Associated Motor Boat Co. Ltd andothers (1968) EA 123.

The Plaintiff’s/respondent’s Case 5. It was the Respondent’s case that the 1st and 2nd Appellants were her sisters in law and that sometime in mid-February 2018, the Appellants slanderously defamed her by uttering defamatory words in public and to be specific, in a family gathering and within the vicinity of the shopping centre and church premises. She set out the defamatory words at paragraph 3 of the Plaint as follows:-“CCR Ko bonindet ne samis en kokwoni ne Kiban mama Nyon, Lezebeth Koech ak Konde busurek bortanyin paka kobar mamayon. Nee setaniandani ne kikowech kokwoni ak kaonti nenyon nebo Bomet ak Busurek”In English translation:-“CCR is a super and bad sorcerer in this village who bewitched our mother, Lezebeth and inserted sorcery things in her body and eventually killed her. This devil has bewitched our villagers and our entire county of Bomet with sorcery.”

6. She set out more defamatory words at paragraph 4 of the Plaint as follows:-“Nda kimaban mama neyon komet komee kotos takomii mamayon Lezebeth kou kamengwong. Bonin komet kiptiltil. Akot okwek ko kikobutwok komet busurek ak sana sana tibik, agot RC, MC, SC che konamgei ak komet obanisie”In English translation:-“If your mother had not bewitched our mother, Lezebeth with sorcery, she could be living by now like your mother. Your mother is a seasoned sorcerer, even you daughters of plaintiff namely R etc. have been thought to bewitch society and now team up with your mother to spread witches.

7. The Respondent stated that the Appellants further defamed her on April 9, 2018 by uttering defamatory words to her children, words which were directed at her. That from April 10, 2018, the Appellants continued defaming her in public places e.g. Tirgaga Shopping Centre.

8. It was the Respondent’s case that she had suffered physical and mental anguish as a result of the defamation and that her family members and members of the society begun shunning and looking down upon her. That her village mates and church members begun ostracizing her daughters as they believed that they had been given sorcery too.

9. The Appellant prayed for General and Exemplary Damages and an unconditional apology from the appellants.

The Plaintiff’s/respondent’s Submissions. 10. The Respondent submitted that the defamatory statements published by the Appellants in Kipsigis language were translated to English. That the interpretation of the said defamatory words was done by the court clerk during the hearing of the suit. She relied on the case of Veronicah Wambui vs Michael Wanjohi Mathenge (2015) eKLR to support this submission.

11. It was the Respondent’s submission that the Appellants and their witnesses testified in Kipsigis language and their testimonies were properly translated to English. That the Appellants and their advocate did not complain about the translation of the defamatory words by the court clerk. It was the Respondent’s further submission that there was no need for a Certificate of Translation as the testimonies were correctly translated.

12. The Respondent submitted that in an action for slander, the foreign words must be set out side by side with the literal translation to English to which she complied.

13. It was the Respondent’s submission that the Appellants knowingly published the defamatory statements in public places and the tea buying centre thereby disparaging her reputation. That PW1, PW2 and PW3 established the ingredients of slander. She relied on the case of Janet Mithika & Another vs Monica Kalingu (2020) eKLR to support this submission.

14. The Respondent submitted that the trial Magistrate arrived at the correct award by basing the magnitude of the defamatory words published and the extent of the damage caused. That the trial Magistrate was guided by case law hence the award was not excessive.

The Defendants/ Appellants Case. 15. The Appellants denied uttering the defamatory words against the Respondent. That if the words were uttered (which they denied), then those words could not have been thought to refer to the Respondent by any right thinking member of the society.

16. The Appellants denied injuring, degrading and causing loss to the Respondent’s reputation, esteem, good will, credit in the eyes of the right thinking members of the society.

The Defendants/appellants Submissions. 17. The Appellants submitted that the words complained of in the Plaint were in Kipsigis language and were not in the official court language i.e. English or Swahili. That the suit was therefore not properly before the court and ought to have been expunged from the record. It was the Appellant’s further submission that the trial court was impeded from knowing and verifying the accuracy of the translation. That the court could not make sense of the words complained hence no cause of action. They relied on Section 86 of the Civil Procedure Act and In the case of Dr. Ali Wario vs Dr. John Ng’ondu (2005) eKLR to support this submission.

18. It was the Appellants submission that they were ambushed when the court decided to use the court interpreter in the proceedings. That without a Certificate of Translation, the words complained of in the Plaint could not be understood by the court. It was the Appellants’ further submission that they raised the issue of the Certificate of Translation from the very beginning and that the Respondent could not hide behind the court interpreter to aid her in rebutting their strong evidence. They relied on the case of Nzoia Sugar Company Limited vs Capital Insurance Brokers Limited (2014) eKLR to support this submission.

19. The Appellants submitted that the Respondent failed to prove the actual words complained of. That the Respondent did not understand English and therefore she could neither translate nor verify the words complained of. It was their further submission that the standard of proof in defamation cases was higher than that of civil cases. That defamation in this case was not proved to the required standard. They relied on the case of Raphael Lukale vs Elizabeth Mayabi and Royal Media Services (2016) eKLR to support this submission.

20. The Appellants submitted that the General and Exemplary damages issued by the trial court were unreasonable and inordinately high as the same were not founded on any outlined legal principle or precedents. That if this court were to uphold the trial court’s decision, then they urged this court to reduce the damages. They relied on The Mater Hospital and Another vs Peter Wanjohi I Kiama (2019) eKLR to support this submission.

21. The Appellants finally prayed that the instant Appeal be allowed and the Judgment dated September 20, 2021 be set aside.

22. I have considered the Record of Appeal dated December 8, 2021, the Appellants Written Submissions dated May 18, 2022, the Respondent’s Written Submissions dated July 18, 2022 and I find that the Appeal raises the following three issues for my determination:-i.Whether a Certificate of Translation was mandatory in this suit.ii.Whether defamation was proved to the required legal standard.iii.Whether the damages issued by the trial court were manifestly excessive

i. – Whether a Certificate of Translation was mandatory in this suit. 23. Defamation in Kenya is governed by the Defamation Act, Cap 36 of the Laws of Kenya. It is an Act of Parliament to consolidate and amend the statute law relating to libel, other than criminal libel, slander and other malicious falsehoods.

24. The Black’s Law Dictionary, 10th Edition defines Defamation as:-Malicious or groundless harm to the reputation or good name of another by the making of a false statement to a third person. A false written or oral statement that damages another’s reputation.

25. In the case of Fidelis Wambua Musembi vs Royal Media Services Ltd (2018) eKLR, the court further expounded on defamation as:-“The tort of defamation is in two forms, slander and libel. The distinction between the two forms is in the manner in which the information is conveyed. In libel, the publication must be made in a permanent form, whereas in slander it is in a non-permanent form. Halsbury’s Laws of England, 4th edition Vol28 on libel and slander, as cited in Clement Muturi Kigano (supra) defines the two in the following terms:“If a defamatory statement is made in writing, or printing or some other permanent form, the tort of libel is committed and the law presumes damages. If the defamation is oral, or in some other transient form, it constitutes the tort of slander which is not actionable at common law without proof of actual damage, except where the statement is one of a particular character.”

26. In the case of Nkalubo vs Kibirige (1973) EA 102, the East African Court of Appeal was held as follows:-“In all suits for libel the actual words complained of must be set out in the plaint. In libel and slander the very words complained of are the facts on which the action is grounded. It is not the fact of the defendant having used defamatory expressions, but the fact of his having used those defamatory expressions alleged, which is the fact on which the case depends….This is not a mere technicality, because justice can only be done if the defendant knows exactly what words were complained of, so that he can prepare his defence.”(See also the Court of Appeal case of Raphael Lukale vs Elizabeth Mayabi & another [2018] eKLR)

27. From the Plaint this was a clear case of slander. The Respondent stated that the Appellants defamed her by uttering the words which I would wish to reproduce. Paragraph 3 of the Plaint stated:-“CCR Ko bonindet ne samis en kokwoni ne Kiban mama Nyon, Lezebeth Koech ak Konde busurek bortanyin paka kobar mamayon. Nee setaniandani ne kikowech kokwoni as kaonti nenyon nebo Bomet ak Busurek”In English translation:-“CCR is a super and bad sorcerer in this village who bewitched our mother, Lezebeth and inserted sorcery things in her body and eventually killed her. This devil has bewitched our villagers and our entire county of Bomet with sorcery.”

28. Paragraph 4 of the Plaint stated:-“Nda kimaban mama neyon komet komee kotos takomii mamayon Lezebeth kou kamengwong. Bonin komet kiptiltil. Akot okwek ko kikobutwok komet busurek ak sana sana tibik, agot RC, SC che konamgei ak komet obanisie”In English translation:-“If your mother had not bewitched our mother, Lezebeth with sorcery, she could be living by now like your mother. Your mother is a seasoned sorcerer, even you daughters of plaintiff namely Rose etc. have been thought to bewitch society and now team up with your mother to spread witches.

29. It is clear that the Plaint clearly spelt out the words complained of in their exact form. The bone of contention that the Appellants raised was that the court was not seized of the knowledge of those words as there was no Certificate of Translation. That the official language of the trial court was English or Swahili and the official language of this court was English. In the case of Veronica Wambui vs Michael Wanjohi Mathenge (2015) eKLR, Mativo J (as he was then) stated:-“The next question to address is whether or not the words must be reproduced in the plaint in the original language they were stated and a translation thereof stated. I have no doubt in my mind that alleged defamatory words are essential ingredients required to constitute successful action in slander. Where the words are uttered in a foreign language or in a language different from the court language, Learned authors of Gatley on Libel and Slander have authoritatively stated as follows: - “Where the libel or slander was published in a foreign language, it must be set out in the statement of claim in that language and followed by a literal translation. It is not enough to set out a translation without setting out the original or vice versa. The pleader should include an allegation to the effect that the translation is a true interpretation of the foreign language used” (Emphasis added)

30. In the Nigerian case of Egbe E vs Adefarasin (1987)1 NSCC (VOL. 18) Per Chukwuma -ENEH the court stated:-“I am of the firm view that where the practice and procedure of setting out the defamatory words in a foreign language in a suit as here has not been strictly followed (as in this case by pleading the slander in Kalabari language and its translation to English) in constituting a claim in slander as here, the claim is challengeable on grounds of not having disclosed a reasonable cause of action in slander and in that event the action is liable to be struck out albeit in limine. This is more so where the slander in a foreign language has not been translated to English language at all in the plaintiffs’ pleadings. In other words if there is no English translation of the defamatory words of course the action is fatally flawed”(See also Hon. Kennedy Nyakundi v Jackson Ongubo & Gusii Star [2016] eKLR)

31. As demonstrated above, the Plaint contained the words complained of in Kipsigis language and the same was translated to the English language. It is also clear from the proceedings that PW1, PW2 and PW3 swore under oath and testified in the Kipsigis language and DW1 and DW2 swore and testified in both the Kipsigis and English languages. It is also salient to note that all witnesses were cross examined which clearly indicates to this court that parties understood the proceedings and most importantly understood each other. In the case of Veronica Wambui vs Michael Wanjohi Mathenge (Supra) it was held that:-“Thus, it is settled law that the defamatory words in an action in slander as uttered in foreign language must be set out side by side the literal translation to English language of the slanderous words for the action to be properly constituted.”

32. I am persuaded by the authorities above on how defamatory words should be set out if not originally uttered in the language of the court.

33. It is my finding therefore that the Certificate of Translation was not mandatory in this suit as the trial court was properly seized of the knowledge and meaning of the words complained of.

ii. – Whether defamation was proved to the required legal standard. 34. In the case of Miguna Miguna vs Stanard Group Limited & 4others (2017) eKLR, the Court of Appeal held that:-“A claimant in a defamation suit ought to establish that there is a defamatory statement; that the defendant has himself published or caused another to publish that statement and that the statement refers to the Claimant - See "Defamation Law, Procedure and Practice" by the authors David Price, Koriech Duodu and Nicola Cain, 4th Edition at paragraph 1 - 02. ”(See also the Court of Appeal case of Raphael Lukale vs Elizabeth Mayabi & another (2018) eKLR and Knupffer vs London Express Newspaper Limited [1944] 1All ER 495)

35. Mabeya J. in the persuasive case of JMK & Another vs Standard Digital & Another (2020) eKLR, stated:-“In order to prove defamation, it must be shown that the words are defamatory, in that, they have a propensity to lower a person’s reputation in the eyes of right thinking persons. Or, that the words tend to cause the person to be rejected, disliked, ridiculed or avoided by people. In this regard, the words must be shown to have injured one’s reputation, character or dignity.”(See also Joseph Njogu Kamunge v Charles Muriuki Gachari [2016] eKLR)

36. A claimant must prove that the defamatory statements were published and that they referred to the claimant. Publication is defined as dissemination of the defamatory matter to 3rd parties. (See Zamzam Hussein Aligele vs Joseph Lekuton (2020) eKLR.)

37. Jurisprudence on defamation has been developing and other case laws introduce the concept of malice in the publication of defamatory statements. Odunga J. (as he was then) explained the concept of malice in the case of Phineas Nyagah vs Gitobu Imanyara (2013) eKLR as:-“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 the parties.......The failure to inquire in the facts is a fact from which inference of malice may properly be drawn.”(See also Kennedy Nyakundi v Jackson Ongubo & another [2016] eKLR)

38. It is clear that the Respondent and the Appellants were sisters in law. The Respondent claimed that the Appellants had defamed her by accusing her of killing their mother using sorcery. That this was done in public places including the shopping centre and at a family gathering. This was corroborated by PW2 who was the Appellants brother. He testified that he heard the Appellants utter the following words:-“Caroline Rop Ko bonindet ne samis en kokwoni ne Kiban mama Nyon, Lezebeth Koech ak Konde busurek bortanyin paka kobar mamayon. Nee setaniandani ne kikowech kokwoni as kaonti nenyon nebo Bomet ak Busurek”In English translation:-“Caroline Rop is a super and bad sorcerer in this village who bewitched our mother, Lezebeth and inserted sorcery things in her body and eventually killed her. This devil has bewitched our villagers and our entire county of Bomet with sorcery.”

39. It was his testimony that the insults took place at the tea buying centre and also in front of the family. It was his further testimony that the Respondent’s name was soiled before many people.

40. PW3 who was not related to the Respondent or Appellants testified that on April 9, 2018, she heard the Appellants insult the Respondent that she had bewitched their mother and had killed her. It was her testimony that both Appellants shouted the insults and the incident took place and the insults near a road.

41. PW3 testified that many people were attracted by the screaming and shouting and that many people were standing at the fence observing what went on in the Respondent’s compound.

42. I am not convinced about the presence of other people in the tea buying centre or on the fence by the road side because other than the testimonies of PW2 and PW3 there was no other corroborating evidence. However defamatory utterances can be publicized even to a single party. The scope of publication would only count when assessing damages. The same was enunciated by Kariuki J in the case of Julius Vana Muthangya vs Katuni Mbila Nzai (2019) eKLR, where it was held:-“I must hasten to add that in law, publication of a defamatory statement whether in spoken or written form would still be proved even if it was communicated to a single person other than the person defamed. The extent or scope of its communication is only relevant in the assessment of quantum of damages and not to proof of publication.”

43. It is my finding that the testimonies of PW2 and PW3 fit the description of publication as the same was done to 3rd parties.

44. The Respondent produced a Death Certificate that was marked as P.Exh 1. The Death Certificate was in respect of the deceased, Lezabeth Cherono Koech (The Appellants’ mother and the Respondent’s Mother in law). It was indicated that the cause of death was renal failure due to Diabetes Mellitus Type 2, Hypertension. The authenticity of the Death Certificate was not tested and/or challenged during cross examination. This meant that the cause of death was diabetes and not sorcery. I find that this indicated malice on the part of the Appellants when they claimed that the Respondent had killed their mother through sorcery.

45. In their Defence, the Appellants denied uttering the defamatory words and stated that the Respondent did not go to church. The Appellants testified upon Cross examination that there was a land tussle in the family and that the matter was filed in court. She did not produce any evidence to back up her claims. It is also salient to note that the 2nd Appellant (DW2) testified upon cross examination that their mother died from diabetes. It is my finding that the Defence put forward by the Appellants could not sway the balance of probabilities to their side.

46. It is my further finding that the Respondent proved that she had been defamed. It was shown that the words used by the Appellants were defamatory and that they had a propensity to lower the Respondent’s reputation in the eyes of right thinking persons.

ii. – Whether the damages issued by the trial court were manifestly excessive 47. In the case of Butt vs Khan (1977) 1 KAR the Court of Appeal held as follows:“An appellate court will not disturb an award of damages unless it is inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles or that he misapprehended the evidence in some material respect and so arrived at a figure which was either inordinately high or low.”(See also the Court of Appeal case of Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] eKLR).

48. In the case of John vs M.G.N 110 (1196) 2 ALLER35 which was quoted with approval in MikidadivsKhalfan & Another (2004) 2 KLR 503 , the Court of Appeal held as follows:“The successful plaintiff in a defamation action is entitled to recover as general compensatory damages, such sums as will compensate him for damages to his reputation, vindicate his good name and take account of the distress, hurt and humiliation which the defamatory publication has caused ...."

49. As I had earlier stated, I found that the Appellants actions of uttering the defamatory words were tainted with malice, which makes the award of the exemplary damages necessary. In the case of Emmanuel Omenda vs Safaricom Ltd (2012) eKLR by Odunga J (as he was then) held that: -“Aggravated damages, on the other hand, are meant to compensate the plaintiff for the additional injury going beyond that which would have flowed from the words complained of but for the presence of the aggravated circumstances.”

50. The decision to award or not to award damages is one of judicial discretion. Since the publication of the defamatory words was limited to two people, it is my finding that the General and Exemplary damages assessed by the trial Magistrate were excessive. I therefore assess and reduce the General Damages to Kshs 100,000 and Kshs 50,000/= as Exemplary Damages.

51. In regards to the apology, I concur with the trial Magistrate’s finding where she granted an award on damages in lieu of an apology. She quoted the case of J.P Machira vs Wangethi Mwangi & Nation Newspapers Ltd (2018) eKLR.

52. In the final analysis, the Appeal dated October 6, 2021 partially succeeds and to the extent only that the General and Exemplary Damages have been reduced as above.

53. Each party to bear their own costs in this Appeal.

JUDGEMENT DELIVERED, DATED AND SIGNED AT BOMET THIS 13THDAY OF OCTOBER, 2022. ..........................R. LAGAT-KORIRJUDGEJudgement delivered virtually in the presence of Mr. Mugumya for the Appellant N/A Mr. Koske for the Respondent and Kiprotich (Court Assistant).