[2022] KEHC 13703 (KLR)

Criticos v Standard Group Limited & another (Civil Case 124 of 2011) [2022] KEHC 13703 (KLR) (Civ) (7 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13703 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Case 124 of 2011

JK Sergon, J

October 7, 2022

Between

Basil Criticos

Plaintiff

and

Standard Group Limited

1st Defendant

Evelyne Kwamboka

2nd Defendant

Judgment

1. The plaintiff herein filed a suit by way of the plaint dated April 5, 2011 and sought for judgment against the defendant in the following manner:a.General damagesb.Aggravated damagesc.Exemplary damagesd.An unqualified apology by the defendants to be published in the standard newspaper and on the website http://www.standardmedia.co.ke

2. The plaintiff pleaded in his plaint that on or about the April 7, 2010,in the standard newspaper ,owned and operated by the 1st defendant and on the internet via the website http://www.standardmedia.co.ke the defendants jointly falsely, maliciously and without intent to injure the reputation and character of the plaintiff, without any justification whatsoever, wrote, published ,printed and distributed published false and defamatory statements of and concerning the plaintiff to millions of people in Kenya and all over the world a more particularly set out hereunder:Criticos stopped from selling parents’ homeFormer legislator is accused of selling father’s property without consent of the familyGirl accuses Criticos of forging her grandmother’s signature to authorize sale of the property.Criticos and his late brother’s daughter were to be the beneficiaries of the late George Criticos multi-million estate, which includes the home.Former Taveta MP Basil Criticos’s niece has obtained an order barring him from selling her grandmother’s Kshs 8 Million home.The girl,17,got the interim order after discovering that the home ,situated on Nairobi’s Lenana Road, was allegedly sold secretly using her late grandmother’s forged signature.The child, through her mother Nicola Kim, claims there is no way her grandmother Fanny Criticos would have sold the property without informing them.I am aware that at the time of her demise, the deceased resided in the same premises and had not sold the property, Ms Kim told the court.It was discovered that the signatures in the purchase documents did not match her grandmother’s forcing her advocate to involve the criminal investigations department’s forensic experts.The said signature of the deceased was subjected to examination by a qualified forensic department examiner at the CID Headquarters and was found to be a forgery, she said.

3. The plaintiff further pleaded that as a result of the publication of the false, wrongful and malicious words and statements aforestated, exposed him in his personal and professional standing and character to public scandal, ridicule, contempt and embarrassment, and continues to cause him to suffer enormous loss and damage, anxiety and disrepute.

4. The defendants entered appearance upon service of summons and filed their statement of defence on May 3, 2011 to deny the plaintiff’s claim.

5. At the hearing of the suit, plaintiff testified and called one (1) additional witness, while the 2nd defendant testified in support of their case.

6. The plaintiff who was PW1 adopted his signed witness statement as his evidence in chief and also produced a bundle of documents and supplementary list of documents whose contents he produced as PEXH1-12 and PEXH 13.

7. The plaintiff stated that he is a farmer and a businessman, he also served as an assistant minister in various ministries .That it is not true that he was stopped by any court from selling his father’s property as no order was served or issued against him.

8. It was the testimony of the plaintiff that there was no allegation made against him nor did he forge any signature, his mother duly signed the documents and that he is aware that the article was published online in which over 30,526 people had read

9. It was also his testimony that the article is still in the 1st defendant’s website and there was no apology nor retraction on the same.

10. In cross-examination, the plaintiff stated that the impugned article referred to him and that he is not the only person using the name Criticos as there are many people using the said name.

11. He further stated that article was erroneous and purported to connect him with the sale of his mother’s property.

12. In re-examination, the witness stated that he was specifically mentioned in the first page of the article which says that he was involved in forgery of documents and that he has only one uncle hence Criticos referred to him.

13. Marrinder Singh Sehmi who was PW2 similarly adopted his executed witness statement as evidence and went on to state that he has known the plaintiff for over 20 years and he has always known him to be an honest, upstanding citizen.

14. It was his evidence that he came across the said article in the Standard Newspaper which had alleged that the court had issued an order preventing the plaintiff from selling property belonging to his mum and that the plaintiff’s mother’s signature had been forged to effect the sale.

15. It is the testimony of PW2 that it was imperative of him to confront the plaintiff on the said allegations as he was not only a friend but was also engaged in business together, of which Mr.Criticos assured him that the contents of the article were untrue.

16. In cross-examination, the witness stated that he is an independent witness though a friend to the plaintiff and he had no idea who forged the document.

17. This marked the close of the plaintiffs’ case.

18. In her evidence as DW1, the 2nd defendant adopted her executed witness statement dated, as evidence and stated that the said article is based on pleadings before Lady Justice Sitati in HCSC 1304 of 2007.

19. It was the testimony of the 2nd defendant that the said story was filed under a certificate of urgency on March 29, 2010 seeking orders that the sale and transfer of LR No 1/1302 to third parties be nullified on grounds that there was evidence and report from the Kenya Police the transfer of the said property from the deceased was procured by fraud.

20. It was the testimony of the 2nd defendant that she did not refer to the Hon.Basil Criticos as the one who forged the documents.

21. In cross-examination, the 2nd defendant stated that this was a public interest case as the plaintiff is a public figure, further to that she had referred to court documents filed by the niece.

22. She further stated that she did not call the plaintiff because her article was based on the court proceedings.

23. At the close of the hearing, this court called upon the parties this court gave directions to have the appeal disposed of by written submissions.

24. I have re-evaluated the arguments presented before this court. I have also considered the rival written submissions. The issues for determination put forward by both parties revolve around the following issues:i.Whether the statement complained of was defamatoryii.Whether the statement complained of is actuated by maliceiii.Whether the publication falls under qualified privilegeiv.Whether the complainant is entitled to the prayers sought

25. On the first issue the plaintiff submitted that the allegation in the article that the plaintiff had been accused of selling his father’s property and that he was barred by a court order from selling the said property, were false.

26. The plaintiff pointed out that nowhere in the proceedings in succession cause No 1304 of 2007 was an order made against him preventing him from selling any property as it was indicated in the injunction order was against the 2nd and 7th respondents and indeed at paragraph 6 of the 2nd defendant’s witness statement admits that the orders were against the 2nd and 7th respondents in the said case.

27. The plaintiff contends that based on the defendant’s own documents, the plaintiff herein was listed as the 1st respondent in Succession Cause No 1304 of 2007.

28. The plaintiff further contends that the accusation that he had been accused by his niece of forging his mother’s signature was also plainly defamatory as it depicted him as a dishonest criminal who could not be trusted.

29. On the other hand the defendant contends that the plaintiff’s witness failed to demonstrate in his evidence how he arrived at the conclusion that the impugned publication was defamatory of the plaintiff in the eyes of the third party.

30. The defendant therefore contends that the basis of the so called opinion formed about the plaintiff cannot be said to have been informed by the publication but only fabricated to hoodwink this court to find that the third parties formed opinion about the plaintiff.

31. It is the defendants submission that the reference to the name Criticos in the article was in general reference to the family name and not a direct reference to the plaintiff as the intended subject of the article and that the publication does not in any form or manner mention the plaintiff as being culpable for the forgery.

32. On this argument the defendants relied on the case of Hezekiel Oira v Standard Limited and another(2016) eKLR the court reiterated the findings in Richard Otieno Kwach v The standard Limited and David Makali,Nairobi HCCA 1099 of 2004 that:“Words are defamatory if they involve a reflection upon the personal character or official reputation of the plaintiff”

33. In addressing the first issue, I turn my attention to the case of Samuel Ndungu Mukunya v Nation Media Group Limited &another [2015] eKLR wherein the court aptly laid out the ingredients to be proved in a defamatory claim as follows:a.Thelibelmust be published by the defendant.b.The published words must refer to the claimant.c.The statement as published must be false and defamatory of the plaintiff.d.The publication was malicious.

34. From my analysis of the pleadings and evidence placed before me, I established that it is not in dispute that the impugned publications were made by the defendants and that the same made reference to the plaintiff. I am therefore satisfied that the plaintiff has satisfied the first and second ingredients for defamation.

35. On the third ingredient to do with whether the publication was false and defamatory of the plaintiff, I considered the definition of what constitutes a defamatory statement as demonstrated by the Court of Appeal in the authority of S M W v Z W M[2015] eKLR thus:“A statement is defamatory of the person of whom it is published if it tends to lower him/her in the estimation of right thinking members of society generally or if it exposes him/her to public hatred, contempt or ridicule or if it causes him to be shunned or avoided.”

36. The courts have unanimously held that in order to determine whether a statement or publication is defamatory, one must seek to discover the meaning conveyed by the words in question to an ordinary/reasonable person.

37. In his plaint, the plaintiff set out the natural and ordinary meaning of the words associated with the impugned publication in the manner indicated earlier in this judgment.

38. Upon considering the same alongside the contents of the publication in question, I am convinced that the plaintiff has demonstrated the manner in which the publications could be inferred in the mind of the ordinary man and consequently lowered his reputation in the minds of members of the public.

39. On his part, the plaintiff under paragraphs 7, 8 and 9 of his plaint pleaded that the words complained of in the impugned publications were defamatory of them in the sense that they could be inferred in their ordinary and natural sense to imply that he is inter alia, a fraudster, has a habit of forging documents and he is dishonest. The plaintiff also pleaded and testified that as a result of the impugned publications, it exposed his personal and professional standing and character to public scandal and embarrassment. This evidence was supported by that of PW2 who was an independent witness.

40. I opine that the plaintiff would succeed in their claim so long as they are able to demonstrate how a reasonable person would receive the defamatory publication, which has been done. In so finding, I borrow from the Court of Appeal’s rendition in the recent case of Miguna Miguna v Standard Group Limited & 4 others [2017] eKLR where it held thus:“By holding that the appellant needed to call witnesses to prove that the story was viewed and read as published, the learned Judge placed too high a standard on the part of the appellant whose duty did not extend beyond the usual standard in a civil case such as the one that was before her to prove the case on a balance of probabilities. We are of the respectful opinion that the appellant proved the case to the required standard.”

41. At the submissions stage, I note the argument by the defendants that the name Criticos was used as a family name but from the impugned publication, it is clear from the description given by the defendants that indeed they were talking about the plaintiff.

42. The defendant went further to describe the plaintiff as the former Taveta legislator and even mentioned his full names.

43. That notwithstanding, I am satisfied that though the plaintiff did not set out verbatim the words published concerning him, he was able to set out the title of the said publication and describe in fair detail the nature of the publications made, as well as particularize their meaning in the ordinary and natural sense.

44. Upon considering the aforementioned particulars of defamation and innuendo pleaded in the plaint and in the absence of any contrary evidence, I conclude that the words published would ordinary sense be taken to have the meaning pleaded in the plaint.

45. On the second issue, the plaintiff submitted that the defendants did raise a defence of qualified privilege of newspapers under the provisions of section 7 of the Defamation Act, and that the said defence would not be available to them since the article was published with malice, was not of public importance and that the plaintiff had requested them to publish a reasonable statement to clarify or withdraw the article but the defendants refused to do so.

46. On the other hand the defendants on the allegation that the publication was published with malice, submitted that the defendants only reported what was in the report and that the report subject of the publication was privileged hence they were not under any obligation to inquire from the plaintiff therefore such failure does not infer malice on the plaintiff’s part.

47. The defendant cited section 12 of the Defamation Act“In any action for libel contained in a newspaper or other periodical publication it shall be a defence for the defendant to show that such libel was inserted in such newspaper or periodical without malice and without gross negligence,

48. In other words, the defendants have not shown by way of credible evidence that the decision to publish the impugned material was made in good faith and upon the exercise of due diligence and the carrying out of thorough investigations. I am therefore satisfied that the plaintiff has proved that the impugned publication was actuated by malice.

49. In so finding, I am persuaded by the following decision adopted by the court in the case of Phinehas Nyagah v Gitobu Imanyara [2013] eKLR thus:“Malice here does not necessarily mean spite or ill-will but recklessness itself may be evidence of malice. 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 but the law does not weigh in a hair balance and it does not follow merely because the words are excessive, there is therefore malice. Malice may also be inferred from the relations between the parties before or after publication or in the conduct of the defendant in the course of the proceedings. Malice can be founded in the publication itself if the language used is utterly beyond the facts. The failure to inquire into the facts is a fact from which inference of malice may properly be drawn.”

50. On the third issue, the plaintiff submitted that the newspaper report was not for the public benefit and was further not of public importance since it was in relation to a succession matter, relating to the private estate of the Late Fany Criticos and therefore a private family affair and did not constitute anything of public importance.

51. The defendants submit that the publication was a fair and accurate report of the court proceedings and forensic report analysis which is a matter of public interest. The defendants relied on the case of Jeff Otieno & 2 others Group v Martin Ng’ang’a(2019) eKLR where it was held :“The information from these extracts qualify as privileged as stipulated under section 7 of the Defamation Act as read with clause 7(d) of the schedule. The inspectorate of state corporations is an office established under the State Corporations Act hence its reports qualify as statements that are privileged subject to explanation or contradiction. The respondent in his letter to the inspectorate of state corporations dated June 16, 2005 categorically stated that he was not contesting the contents of their report except a few factual mathematical errors that he recommended be excluded from the report.Further, the publication related to a matter which concerned the public. The statement did not deliberately distort or exaggerate the true situation as reported. No offensive words were used of and regarding the respondent. The learned Judge appreciated the contents of the report; that it noted “gross irregularities in respect of payments made to former and current chief executives of Kenya Wildlife Service”; that it recommended that the respondent be surcharged and in addition a recommendation for the taking of a disciplinary action against the respondent “for professional negligence in abetting an irregular payment for accommodation and incidental expenses for Mr. Mukolwe at the Norfolk Hotel”.

52. From the evidence and pleadings adduced in this case what comes to the fore is: The plaintiff at the time of the publication was made was the former Member of Parliament (MP) for Taveta constituency in Taita Taveta county and therefore a public figure. Secondly, the article with the defamatory statements was published in the standard website reaching millions of Kenyans and all over the world with the intention of causing damage on the plaintiff’s reputation.

53. This brings me to the third issue for determination, on the reliefs sought by the plaintiff.

54. On their part, the defendants have suggested a figure of Ksh 400,000/- and has urged the court to disallow the claim for aggravated and exemplary damages.

55. On general damages for libel, I considered the professional standing of the plaintiff who going by his testimony and supporting evidence, is a prominent member of society, being a former member of Parliament and a former assistant minister. I also took into account that the article was circulated nationwide to millions of people and further broadcast to millions of people across the world through the 1st defendant’s website.

56. I also considered the case of Miguna Miguna v Standard Group Limited & 4 others[2017] eKLR in which the Court of Appeal upheld an award of Kshs 5,000,000/ made under this head,

57. The more recent case of Michael Kamau Mubea v Nation Media Group Limited & 2 others [2019] eKLR in which this court awarded a sum of Kshs 7,000,000/= on general damages to a plaintiff who was both a lawyer and a journalist.

58. I therefore find the award of Kshs 3,000,000/= to be reasonable for the plaintiff, in the circumstances.

59. For exemplary and punitive damages, the same are only awarded by the court to show disapproval of the defendant’s conduct when the court is satisfied that the publication was oppressive or arbitrary and propelled by the desire and as a way of drawing a financial benefit. The Court of Appeal in Board of Trustees, National Social Security FundvsJudy Wambui Muigai (2017) eKLR reiterated the position of the law when it held:“Such damages are in our view called for in situations of oppressive, arbitrary or unconstitutional actions by servants of the government or wrongful conduct which has been calculated by the defendant to make a profit for himself, where such award is expressly authorized by the statute……exemplary damages go beyond compensation and are meant to punish the defendant may well be ordered against a defendant who acts out of improper motive or where he is actuated by malice”

60. Exemplary damages, being aimed of punishing the defendants are also called punitive damages and therefore refer to one and the same remedy.

61. In this matter I do find that having had the opportunity to apologise but failed to do so, the defendants were in effect grand standing and therefore acted improperly. I do find that failure to apologise when demanded, justify and award of damages. With such determination, I do award to the plaintiff exemplary damages in the sum of Kshs 600,000/=.

62. In the end, judgment is entered in favour of the plaintiff and against the defendants and is awarded as follows:i.General damages for defamation……Kshs 3,000,000/=ii.Exemplary and aggravateddamages Kshs 600,000/=Total …………………………...............Kshs 3,600,000/=iii.Costs of the suit.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 7TH DAY OF OCTOBER, 2022. ………….…………….J. K. SERGONJUDGEIn the presence of:……………………………. for the Plaintiff……………………………. for the 1st Defendant................................... for the 2nd Defendant