[2014] KEHC 1995 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

(CIVIL DIVISION)

(MILIMANI LAW COURTS)

CIVIL CASE NO. 85 OF 2011

DORCAS FLORENCE KOMBO....................................................PLAINTIFF

VERSUS

ROYAL MEDIA SERVICES LIMITED......................................DEFENDANT

JUDGEMENT

Introduction

By a plaint dated 14th March, 2011 and filed in this court the same day, the plaintiff sued the defendant seeking an unconditional apology, General Damages, Costs and Interests arising from the publication on 2nd March 2011 by the Defendant of words in the Defendant’s news channel Citizen Nipashe and Citizen Live at 9 respectively which publication the plaintiff deemed defamatory of him.

Plaintiff’s Case

According to the plaintiff on the said day, without any justifiable cause published of and concerning the Plaintiff and caused to be widely broadcasted a libellous news item under the caption, “Kosgey in the Dock/Kombo’s wife also charge over graft” in its programmes known as Citizen Nipashe aired in Kiswahili and Citizen Live at 9 aired in English. In its Swahili broadcast at 7. 00 pm the following words were published:

Janet Chapia – Citizen Nipashe

“Na katika Mahakama nyingine ya kupambana na ufisadi, mkewe was waziri wa zamani Musikari Kombo alishtakiwa kwa ufujaji wa zaidi wa shilingi milioni tisa. Elizabeth Kaloki Kombo aliyekuwa naibu wa mkurungenzi wa elimu, anadaiwa kujipatia kwa njia ya ulaghai shilingi milioni mbili nukta mbili huku shilingi milioni saba nukta sita akizitoa kwa mkurungenzi wa elimu kwa jina Onesmus Mutinda. Fedha hizo zinasemekana zilikiwa za kugaramia warsha kuhusu ugonjwa wa ukimwi katika chuo cha mafunzo ya ualimu cha Shanzu. Kombo alikanusha kutekeleza vitendo hivyo kati ya Aprili mwaka wa 2009 na mwezi wa Mei mwaka huo huo. Kesi hio itaskizwa tarehe tisa mwezi ujao.”

The said words according to the plaintiff in their English translation mean:

And in another anti-corruption court today, the wife of a former Minister, Musikari Kombo was charged with fraudulently acquiring more than nine Million shillings. Elizabeth Kaloki Kombo, who was an assistant director of education, is alleged to have requested for money purporting that it was needed to pay participants at an HIV/AIDS workshop held at Shanzu Teachers Training College in Mombasa. Kombo denied the charges that alleged that she committed the acts between April 2009 and May that year. The case will be heard on 9th next month.

In the English language news broadcast at 9. 00 pm it was pleaded that the following words were published:

Michael Njenga- Citizen at 9

“At the same time the wife of FORD Kenya Chairman and Nominated Member of Parliament Musikari Kombo, Elizabeth Kaloki, was charged with misappropriating over 9 Million Shillings in the course of her duty as an Assistant Director of Education.”

Hussein Mohammed – citizen at 9

“Still from the courts, Nominated MP Musikari Kombo’s wife Elizabeth Kaloki has been charged with fraudulently acquiring about 9 Million Shillings. While working as an Assistant Director of Education, she is alleged to have requested for money purporting that it was needed to pay participants at an HIV/AIDS workshop held at Shanzu Teachers Training College in Mombasa.

Elizabeth Kaloki Kombo is accused of acquiring 2. 2 Million Shillings fraudulently while acquiring another 7 Million on behalf of a senior director of education, Onesmus Mutinda. She denied the charges. The alleged offences are said to have been committed between April and May 2009 with Lady Justice Nyambura ordering her to pay a 1 Million Shilling bond pending the hearing of the case on the 9th of April this year.”

It was pleaded further that during the news the said defamatory story was carried on the News Sticker Tape running throughout the news. In the plaintiff’s view the said words were not only false and malicious but were also calculated to disparage the Plaintiff’s character and were meant to mean that the Plaintiff is not married to Hon. Musikari Kombo; that the Plaintiff is a liar and has been passing off as Hon Musikari Kombo’s wife; that the Plaintiff is involved in a massive corruption scandal and corrupt practices; that the Plaintiff is a dishonest and evasive person and lives a life of hypocrisy; that the Plaintiff is lacking in professional and business ethics; that the Plaintiff cannot be trusted to hold public office or any leadership position.

It was pleaded that Defendant falsely and maliciously wrote and printed and published and distributed or accused to be written, printed, published and distributes the said words while knowing full well that the allegations of and concerning the Plaintiff were untrue. It was further pleaded that publication has caused the Plaintiff to suffer loss and damage to her reputation especially since the Plaintiff is a qualified Certified Public Accountant (CPA); a member of the Institute of Certified Public Accountants of Kenya (ICPAK); a Chartered Accountant who is a Fellow of the Chartered Association of Certified Accountants (FCCA); and a Certified Public Secretary being a member of CPS(K). Apart from that her professional has been with three international and global firms having trained with the predecessor firm of Deloitte, she then worked with Coopers and Lybrand before it merged with Price Waterhouse to form Pricewaterhouse Coopers for 21 years and is a local and international consultant currently a non-executive director at KENGEN and legally married to Hon Musikari Kombo.

It was pleaded that despite the plaintiff having sent a demand notice seeking retraction and apology and threatening to sue, the same never elicited any response.

It was agreed on behalf of the parties herein that the evidence in cross examination and re-examination of the common witnesses in this suit and in HCCC No. 89 of 2011 which was a suit arising from the same cause of action would be adopted in determining this matter as well as the DVD produced in the said case.

In his evidence Hon. Musikari Nazi Kombo who testified as PW1, apart from relying on his statement filed herein told the Court that he had testified in HCCC No. 85 of 2011.

In the said case PW1 testified that on 2nd March, 2011 at about 7. 30pm he received a tearful telephone call from his daughter, Namlisa Kombo who told him to watch the television. Upon going to the tail end of the news item he discovered news about his wife who was said by one Janet Chapia to have been involved corruption. He confirmed that the words pleaded in the plaint were the words which were uttered. Upon hearing the news the plaintiff called Citizen and spoke to a person called Opondo who promised to look into the matter. However the same news item was repeated in the 7. 00pm news broadcast after the Kosgey item by one Hussein Mohammed. According to the plaintiff, the news continued running at the bottom of the screen even after the same had been read. Later after 9. 00pm the plaintiff received a call from Mr Opondo informing him that they had made a mistake.

According to the witness, he called Mr Opondo between 7. 10 and 7. 30pm and not after 9. 00pm as was alleged by the latter as there was no way Janet Chapia could have called him at 8. 30pm. Referred to the charge sheet and the cause list he confirmed that the name appearing was Elizabeth Kaloki and that the name Kombo did not appear therein and that the accused was not related to him. Although the broadcast mentioned Kombo, he said his wife has never been charged in court with the said charges.

However after 9. 00pm he was called by Mr Opondo. According to the witness the story was even read on the radio stations and would have reached even those who were not watching the television.

In cross examination he said that he called Farida Karoney, the Defendant’s Editorial Director before calling Peter Opondo and spoke to the latter soon after the 7. 00pm news. Referred to the cause list in question he confirmed that the cause list was dated 31st October 2012 while the case was filed in 2011. According to him one of his drivers heard the matter on Kameme. He however said that they had not sued the Defendant in respect of any other station.

I re-examination he confirmed that the name Kombo did not feature in the charge sheet and that there was no other nominated MP. To him Mr Peter Opondo confirmed that the broadcast was not factual.

The Plaintiff in this case, Dorcas Florence Kombo testified as PW2. She confirmed having testified in HCCC No. 89 of 2011 and part from relying on her statement on record, she added that she was a Certified Public Accountant with qualifications from Kenya and United Kingdom working in professional firms such as Price Waterhouse where she arose to become a director. According to her she was a Certified Public Accountant (K) and a Certified Accountant in the United Kingdom. According to her CPA (K) is a very strict qualification. After retiring from the said firm in 2004, the said firm continued giving her assignments due to her record.

She testified that the allegations mad reflected on her career and the work she had done over the years for governments in Africa and the position she held as a director in the companies listed in Nairobi Stock Exchange. According to her the criminal charge in question was not in respect of accounting but the giving of false imprests and in her understanding it related to failure to account which was not what she ordinarily did in the course of her duties. She asserted that she had never been charged for a criminal offence.

The plaintiff testified that once it was mentioned that the accused was the wife of Musikari Kombo people thought she was the accused though she had never received anything by the virtue of being PW1’s wife as anything she has received in her profession has been due to her qualification. Due to her wide travels she testified that people know her worldwide as well as n religious circles.

The plaintiff testified that the defendant never called her to apologise about the broadcast. It was her evidence that she had never been charged in any Court and did not know Elizabethe Kaloki which was not even her co-wife. In her evidence she was put on an inquiry due to the broadcast.

In HCCC No. 89 of 2011, the plaintiff testified that she was a Chartered Accountant Fellow and a Certified Secretary as well as certified Public Accountant and at the time of the testimony was on the Board of KENGEN as a non-executive director. She was also a trustee of Kenya Women Medical Association advising on finance and a director in family business of Namenge Brothers Co. Ltd and Menana Development Co. Ltd. She also testified that she consulted for various entities, organisations and the Government of Kenya, Malawi, Tanzania, Sierra Leone and Rwanda.

Apart from relying on her statement filed in this suit, she testified that she got married to PW1 in September, 1982 who at the time was in the private sector but later became an MP, an Assistant Minister and Cabinet Minister as well as the Chairman of political party.

On 2nd March, 2011, she testified that there was a news item that was running on Citizen Nipashe and she received information about it. Referred to the plaint she confirmed that what was contained therein was what was published. According to her reference was made to the wife of Musikari Kombo and she was called Mrs Kombo. According to her, her name is Dorcas Kombo and she is referred to as Mrs Kombo and the plaintiff is a former Minister. To her the name was mentioned in full before the word “wife”. She added that PW1 has been in the public domain for a long time and most people know her as Mrs Kombo. According to her the publication caused her loss and damage though they were still married. According to her she watched both news items and whereas she could not say how long the news item continued, the item continued in the line below until the time for sports. According to her what was shown was “Musikari Kombo. Former Cabinet Minister. Chairman of Ford Kenya”. In her evidence she had never met anyone with the name Musikari Kombo and had never been employed in the civil service that she had worked for the civil service by virtue of international assignments. In her view, since the matter had landed in the public domain it could not be removed. She testified that what came after the item was the corruption case against Kosgey.

In cross-examination by Ms Mwaniki, she said that she only testified about what she heard on 2nd March 2011 and not what was contained in the charge sheet. She maintained that no one had called her to tender any apology though there was a mention of the matter the following day. In her view what the Defendant issued was a general statement as opposed to an apology.

PW3 was Namulisa Kombo Majale. According to her testimony in HCCC No. 89 of 2011, the plaintiff was her mother and on 2nd March 2011 there was a mention of her mother being in court charged with fraud that she had embezzled funds for HIV/AIDS. According to her the news talked of the wife of a former Minister and Nominated MP, Hon. Musikari Kombo who was charged. According to her they are 10 children and received the information in shock and disbelief since they were sure that it was impossible.

She then contacted the plaintiff first then her father and inquired what was going on since she did not recognise the person mentioned. According to her she got most of the inquiries from her colleagues at work and her friends at Deloitte and Touché in Nairobi where she was a management consultant. Although they did not expect the story to run again at 9. 00pm it did despite the fact that her father informed her he had called the Defendant. According to PW2 she has never seen any apology published by the Defendant.

It was the testimony of the witness that Deloitte was her mother’s first employer and there were inquiries from everybody since ethical issues were involved. Having watched the segment of the DVD of the newscast, she testified that the charge sheet was shown repeatedly and the story opened with “the nominated MP and former Minister”.

The cross examination in the same case was similarly adopted. In the said cross-examination, the witness admitted that the plaintiff being a politician is subject to close public scrutiny. She said that she watched the whole broadcast a home and that there were highlights before the newscast begun. According to her Citizen is widely watched in Kenya because of accessibility. She however was not sure whether she watched the whole bulletin the next morning though she never saw the apology and has never seen any.

Defendant’s Case

At the close of the plaintiff’s case, the Defendant adopted the Defence evidence in HCCC No. 89 of 2011.

In the said case Janet Odari Chapia testified as DW1.

According ton her, she was a journalist with the Defendant as a news reporter entailing news gathering detailed with court reporting within Nairobi. After disclosing that she was relying on her statement filed herein, she said that on 2nd March, 2011 she was at the Nairobi Law Courts at the Anti-corruption Court where there was a lady charged with. According to her they were many journalists trying to get the story and they were asked by the orderlies why they were taking the photographs of the wife of the Honourable and informed them that the lady’s name was Florence Kombo. According to her most of the journalists assumed that the lady was the wife of the former MP and after going back to the station she prepared her story for the 7. 00 o’clock and the same went on air at 7. 00pm in the bulletin known as Nipashe. Later the witness received a call from her boss Peter Opondo inquiring how she obtained her story and that Florence Kombo was Honourable Kombo’s wife. She then explained what had transpired and her boss informed her that the plaintiff had called to complain about the story and informed her that they were going to apologise. She however never saw the apology though she was made to understand it was made the following day and power breakfast.

The witness admitted that she did not know Mrs Kombo before and had no reason to be malicious.

In cross-examination by Mr Luseno, learned counsel for the plaintiff DW1 said that it was her 4th year as a Court reporter and that she knew what stories to report and which ones not to report and that sometimes she asks for the good story and ordinarily reports the best story. She admitted that the story on anti-corruption would be appealing and that they bring news that attract viewers’ interest in the media house. According to her they try to be the best media house though she was unable to say which was the leading media house.

DW1 admitted that there was anti-corruption case against the Industrialisation Minister who was charged and his story was run together with the subject one. She confirmed that she was in court when the charge was read and she heard the name Florence Kaluki Kombo. She also confirmed that she was in Court when the plaintiff’s witness gave evidence and watched the video clip of the news cast. According to her the name Kombo was in the charge sheet. However, the Court orderlies did not identify the name of the Mheshimiwa. However it is then that she concluded that it was the plaintiff’s wife and ran the story at 7. 00pm which news story constituted 9 lines. The witness admitted that they used the name Musikari Kombo and the Court in question was dealing with anti-corruption. She also admitted that they used the words “wife of Musikari Kombo a former Minister though those were not the words she had been told. She also conceded that “Musikari Kombo” and “former nominated MP” were not in the charge sheet and that she used them because she concluded that the accused was the plaintiff’s wife. According to her, the news would not have reached the audience had the words been omitted and that the inclusion was meant to catch attention of many people.

DW1 further testified that she was enjoined to brief her editors before running a story and that she had more than 2 stories. According to her what determines the airing of the story is the duration and the prominence of the story. According to her the Kosgey story was a new story while the story of the plaintiff’s wife was also top range as it had to do with the theft of AID’s money and as such would sell hence the perfect story for the news item.

She however denied that there was a segment allotted for Court news though she confirmed that Citizen Nipashe is a Swahili bulletin for 7. 00pm which was her speciality. According to her she did not ran an apology the following day in the same programme and could not recall whether an apology was discussed in the meeting since they were only discussing what was coming in Nipasheas the issue of an apology was not considered to be news. The witness confirmed that the story was ran on the television on 2nd though she did not know the extent of the coverage of the Citizen. She however admitted that Citizen is on Dstv and can be watched online.

According to her she studied Communication and Journalism at the University of Nairobi and Kenya Polytechnic and was aware of the Code of Conduct which requires them to report accurately and exhibit fairness. She however admitted that she did not call the Plaintiff before the meeting or after and did not see the plaintiff in Court. She admitted that she went against the good conduct of journalism. Referred to the Code she however said that she was not conversant with the requirement that she ought not to disclose the identity of relatives of people charged though in this case they identified the plaintiff with the lady charged though she neither spoke to the said lady nor the investigating officer or prosecutor. She also did not read the Court file though she read the charge sheet and the names Kombo and Elizabeth were there.

The witness admitted that she knew the plaintiff and he was someone she respected. According to her, Michael Njenga was not in Court but simply translated her story and ran it at the 9. 00 o’clock. The witness however did not attend further hearings and was not aware of what happened to the case. In conclusion the witness admitted that the story was not factually correct.

In re-examination, DW1 reiterated that she got the name Elizabeth Kaloki Kombo from the charge sheet though the name Kombo she got from the orderlies and her conclusion was “Musikari Kombo” since she only knew one Mheshimiwa called Kombo.

Plaintiff’ Submissions

On behalf of the plaintiff, after setting out the law relating to the tort of defamation, the pleadings and the evidence the case of Mikidadi vs. Khalfan & Another [2004] 2 KLR 496 was relied upon in contending that the defences by the Defendant could not hold since the Defendant did not check whether the publication was factual. It was further submitted that the publication contravened the Code of Conduct for the Practice of Journalism. It was submitted that it is no defence to libel to say that the libel was originated elsewhere and that the defendant merely repeated it and reliance was south in Gatley on Libel and Slander. According to the plaintiff no step whatsoever was taken towards the verification of the story hence the Defendant was motivated by sensationalism.

On damages, it was submitted on the authority of Oyaro vs. Alwaka T/A Weekly Citizen & 2 Others [2003] KLR 574 that an action for defamation is essentially an action to compensate for harm done to his reputation and the Court will therefore take into account the Plaintiff’s profile vis-à-vis what is published against him. It was submitted that Courts have been known to award exemplary damages where it is established that the Defendant’s motive was purely financial and that the financial prospects of broadcasting a story which it knows to be false exceed the potential financial costs in the event that they are found liable. Further the Court has discretion to award general and aggravated damages when circumstances permit and the plaintiff relied on Machira vs. Mwangi & Another [2001] 1 KLR 532, Ochieng & 8 Others vs. Standard Limited [2004] 1 KLR 225, Kalya & Another vs. Standard Limited [2002] 2 KLR 665 and Mikidadi vs. Khalfan (supra).

It was submitted that in libel damages are at large and the discretion as to what to award is left to the Court. However in conserving the amount to award the Court takes into account the reputation of the plaintiff, the severity of the defamatory imputation, the extent of the publication and any aggravating/mitigating factors. Relying on Daniel Musinga vs. Nation Media Group Civil Appeal No. 120 of 2008, Machira vs. Mwangi & Another (supra), Lucy Njiru vs. Nation Media Group HCCC No. 835 of 2007, Hon. Christopher M. Obure vs. Tom Oscar Alwaka & 3 Others HCCC No. 956 of 2003, the plaintiff submitted that he ought to be awarded Kshs 30,000,000 under the head of general and exemplary damages. Based on Ochieng & 8 Others vs. Standard Limited (supra) it was submitted that in lieu of apology the Court may award damages and an award of Kshs 2,000,000. 00 was suggested under this head.

Defendant’s submissions

On behalf of the Defendant it was submitted that though Peter Opondo did not testify since his statement is on record the same cannot be ignored by the Court. It was submitted that though the story was published as alleged, the journalist who covered the story was misled by court orderly that the accused was the plaintiff’s wife. It was contended that by the time the plaintiff’s concern reached Mr Opondo the news editor the story had already been run. Although the plaintiff’s advocates wrote a demand letter seeking an apology, it was submitted that no time frame was given within which the apology was to be done before recourse would be had to the court and on 17th March 2013 the defendant clarified that an apology had been made but no format of the apology was furnished by the plaintiff.

It was submitted that the story did not refer to the plaintiff but to the wife and therefore there was no defamation of the plaintiff as defamation is personal. It was therefore submitted that the plaintiff cannot sustain a cause of action for defamation involving his wife and the defendant is not liable. In support of this submission reliance was placed on Gatley on Libel and Slander, 10th Ed hence even where a person suffers damage from defamation of another person related to him he cannot sue for defamation.

It was further submitted that the story was published without malice since the defendant’s journalist was misled by the court orderly as the name Kombo was mentioned by mistake. It was further submitted that being a politician the plaintiff’s character, conduct and activities are under scrutiny and discussion and reliance was placed on New York Times vs. Sullivan.

While distinguishing the decision relied upon by the plaintiff the defendant relied on Muthui Mwai & Anor vs. The Standard Newspapers Ltd Nbi HCCC No. 832 of 1990, Aziz Kssim Lakha vs. The Standard Limited Civil Appeal No. 81 of 2009 and Allan K. Mbugua vs. RMS HCCC No. 108 of 2003 and submitted that an award of Kshs 500,000. 00 would be adequate.

Determinations

I have considered the pleadings, the evidence and the submissions on record and in my view the following are the issues which fall for determination:

Whether the Defendant published the words complained of.

Whether the words published referred to the plaintiff and whether they were false.

Whether the plaintiff’s credibility and reputation has been injured.

Whether the publication bore the meaning attributed to them in the plaint.

Whether the words were published in good faith, in public interest without malice and whether the defence of qualified privilege applies.

Whether there was a notice of intention to sue or demand for an apology.

Whether the plaintiff is entitled to damages.

Who should bear the costs of the suit?

The law of defamation is underpinned in our Constitution. Under Article 32(1) of the Constitution every person has the right to freedom of conscience, religion, thought, belief and opinion. This Article makes it clear that the freedom to express one’s opinion is a fundamental freedom enshrined in the Constitution. Article 33(1) (a) provides that every person has the right to freedom of expression, which includes freedom to seek, receive or impart information or ideas. However, clause (3) provides that in the exercise of the right to freedom of expression, every person shall respect the rights and reputation of others. This, in my view, is the constitutional fulcrum of the law of defamation. Accordingly, the law of defamation is not just anchored on a statutory enactment but has a constitutional underpinning.

Defamation is a tort and is defined as the publication of a statement which, tends to lower a person in the estimation of right thinking members of the society generally or which tend to make him be shunned or avoided. The defamatory statement is one which has tendency to injure the reputation of the person to whom it refers by lowering him/her in the estimation of the right thinking members of society generally and in particular to cause him/her to be regarded with feelings of hatred, contempt, ridicule, fear, dislike and disesteem and typical examples are an attack upon the moral character of the plaintiff attributing to him/her any form of disgraceful conduct such as crime, dishonesty, cruelty and so on. Publication is the communication of the words to at least one other person other than the person defamed. Publication to the plaintiff alone is not enough because defamation is an injury to one’s reputation and reputation is what other people think of a person and not his/her own opinion of himself/herself. An action for defamation is essentially an action to compensate a person for the harm done to his/her reputation. Since defamation is not about publication of falsehoods against a person, it is necessary to show that the published falsehood disparaged the reputation of the plaintiff or tended to lower him/her in the estimation of right thinking members of society generally hence an injurious falsehood may not necessarily be an attack on the plaintiff’s reputation. The words must be maliciously published and malice can be inferred from a deliberate or reckless or even negligently ignoring of facts. See J P Machira vs. Wangethi Mwangi and Nation Newspapers Civil Appeal No. 179 of 1997.

There are two kinds of defamation; slander and libel. Libel consists of a defamatory statement or representation in permanent form. As opposed to slander, libel is punishable per se without proof of damage and the actual sum to be awarded is “at large” and although a person’s reputation has no actual cash value, the Court is free to form its own estimate of the harm taking into account all the circumstances.

The elements of the tort of defamation are that the words must be defamatory in that they must tend to lower the plaintiff’s reputation in the estimation of right-minded persons, or must tend to cause him to be shunned or avoided. Whereas mere abusive words may not be defamatory, the speaker of the words must take the risk of his audience construing them as defamatory and not simply abusive, and the burden of proof is upon him to show that a reasonable man would not have understood them in the former sense. However, in libel the words cannot be protected as mere abuse since it is presumed that the defendant had time for reflection before he wrote them. Secondly, the words must refer to the plaintiff.Thirdly, the words must be malicious. 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. The failure to inquire is into the facts is a fact from which inference of malice may properly be drawn. Any evidence, which shows that the defendant knows the statement, was false or did not care whether it be true or false will be evidence of malice. See Godwin Wachira vs. Okoth [1977] KLR 24; J P Machira vs. Wangethi Mangi(supra).

The law of course recognises certain defences that may be invoked by a person sued with the tort of defamation I shall only deal with the ones relevant to the present case. The law recognizes that there may be occasions on which freedom of communication without fear of an action for defamation is more important than the protection of a person’s reputation and such occasions are said to be “privileged” and the privilege may be either absolute or qualified. Absolute privilege covers cases in which complete freedom of communication is regarded as of such paramount importance that actions for defamation cannot be entertained at all: a person defamed on an occasion of absolute privilege has no legal redress, however outrageous the untrue statement which has been made about him and however malicious the motive of the maker of it. Qualified privilege, though it also protects the maker of an untrue defamatory statement, does so only if the maker of the statement acted honestly and without malice. If the plaintiff can prove “express malice” the privilege is displaced and he may recover damages, but it is for him to prove malice, once the privilege has been made out, not for the defendant to disprove it.

For the purposes of this judgement it includes -Statements made by A to B about C which A is under a legal, moral or social duty to communicate to B and which B has a corresponding interest in receiving. The protection of such statements is justified for the common convenience and welfare of society. With respect to newspaper reports, the matter which is reported may be of very wide public interest, but the protection of privilege is not thrown about it unless its publication is in the public interest and the newspaper can be said to be fulfilling a duty in revealing it. There is no defence of “fair information on a matter of public interest. The defence of fair comment is available if facts are true and the matter is of public interest and the opinion is honestly held.

Qualified privilege can be rebutted by proof of express malice, and malice in this connection may mean either lack of belief in the truth of the statement or use of the privileged occasion for an improper purpose. Lack of belief in the truth of the statement is generally conclusive as to malice, except in cases where a person is under a duty to pass on defamatory reports by some other person. Mere carelessness, however, or even honest belief produced by irrational prejudices, does not amount to malice. But an honest belief will not protect the defendant if he uses the privileged occasion for some other purpose other than that for which the privilege is accorded by law: if his dominant motive is spite or if he acts for some private advantage he will be liable. Existence of malice can be evinced by language; if the language used is utterly beyond or disproportionate to the facts; however, it does not follow that merely because the words are excessive malice must be inferred. It can also appear from the relations between the parties before or after publication or from the conduct of the defendant in the course of the proceedings themselves, as, for example insisting on the defence of justification while nevertheless making no attempt to prove it. However mere pleading of justification is not itself evidence of malice even though the plea ultimately fails. It may be deduced from the mode of publication where the dissemination of the statement is wider than is necessary. When a defamatory communication is made by several persons on an occasion of qualified privilege, only those against whom express malice is actually proved are liable.

We now come back to the issues in this case. The first issue is whether the Defendant published the words complained of. From the evidence on record it is clear that the words complained of were published by the Defendant. It is equally clear that the words referred to the Plaintiff. From the evidence of DW1 it was clear that the publication was false and that it was caused by misinformation by Court orderlies. Accordingly the first two issues must be answered in the affirmative.

The next issue is whether the plaintiff’s credibility and reputation has been injured. The words published were to the effect that the plaintiff had been charged with misappropriating over 9 Million Shillings in the course of her duty as an Assistant Director of Education and that she was alleged to have requested for money purporting that it was needed to pay participants at an HIV/AIDS workshop held at Shanzu Teachers Training College in Mombasa. Whereas I do not entirely agree with the meaning attributed by the plaintiff to the said words, it cannot be gainsaid that the said words were clearly defamatory of the plaintiff. I am however not convinced that the said publication meant that Plaintiff is not married to Hon. Musikari Kombo or that the Plaintiff is a liar and has been passing off as Hon Musikari Kombo’s wife. Nor can they be construed to me that the Plaintiff is involved in a massive corruption scandal and corrupt practices or that the Plaintiff is a dishonest and evasive person and lives a life of hypocrisy or that the Plaintiff is lacking in professional and business ethics. A reasonable person could however construe the plaintiff was suspected of being involved in a massive corruption scandal and corrupt practices; that she was suspected of dishonest. Obviously such a person would not fit to be trusted to hold public office or any leadership position. However in this case, the publication was aggravated by the fact that the alleged offence was in respect of funds acquired under the pretext that it would be used for payment of participants at an HIV/AIDS workshop. That HIV/AIDS is one of the pandemics to which the public are sensitive is an understatement. Therefore anyone who is suspected to have used the said pandemic for personal gain is most likely to be shunned by those who get to know that he/she is not only suspected of such heinous crime but has in fact been charged with the same. As was held by the Court of Appeal in J P Machira Vs. Wangethi Mwangi and Nation Newspapers Civil Appeal No. 179 of 1997 it does not require evidence to prove that a person would be hurt in his reputation and be brought into public scandal, odium and contempt in the estimation of right thinking members of society if allegations were made that she had fraudulently acquired 9 Million Shillings under the pretext that the money was needed to pay participants at an HIV/AIDS workshop.

I am therefore clear in my mind that the plaintiff’s credibility and reputation must have been injured and as stated elsewhere in this judgement, as opposed to slander, libel is punishable per se without proof of damage. I have already dealt with the meaning which the words could reasonably be attached to.

That leads me to the issue whether the words were published in good faith, in public interest without malice and whether the defence of qualified privilege applies. It is clear that the publication was manifestly untrue. The reporter did not bother to countercheck the truthfulness of the information she purportedly received from Court orderlies. The said reporter from her own evidence was a seasoned Court reporter and ought to have known better than to blindly rely on information received from persons who are not Court officials especially knowing very well the allegations being made and the personality involved. By relying on that source of information DW1 exhibited a high degree of carelessness and recklessness in her duty as a journalist.

That leads me to the issue whether the defence of qualified privilege avails the Defendant in the circumstances of this case. Qualified privilege only if the maker of the statement acted honestly and without malice. However, malice can be inferred from a deliberate or reckless or even negligently ignoring of facts. In this case I am satisfied that DW1 was both negligent and reckless in the manner she reported the Court proceedings hence the defence of qualified privilege does not avail the Defendant.

That leads me to the issue of apology. PW1 testified that he called Mr Peter Opondo and complained to him about the publication and secured a promise from the latter that the issue would be looked into. Instead of being looked into the same news broadcast was repeated in the 9. 00pm bulletin. No evidence was adduced in these proceedings that an apology was in fact given to the plaintiff herein. In my view the witness statement filed herein not being evidence on oath had no evidentiary value. The same was mere worthless statement which this Court cannot be expected to rely upon. In the premises it is my view and I so hold that there was no apology tendered to the plaintiff.

It must now be obvious that from the discourse herein, the inescapable conclusion by this Court is that the plaintiff is entitled to damages. That then leads me to the issue of quantum of damages. The Court of Appeal inJohnson Evan Gicheru –vs- Andrew Morton and Michael O’mara Books Ltd [2005] 2 KLR 332, held:

“In actions of defamation and in any other actions where damages for loss of reputation are involved the principle of restitution in integrum has necessarily in even marvel highly subjective element, such actions involve a money award which may put the plaintiff in a purely financial sense in a much strange position than he was before the wrong. Not merely can he recover the estimated sum of his past and future losses, but in case the libel driven underground emerges from its looking place at some future date, he must be able to point to a sum awarded by a jury sufficient to convince a by stander of the best sellers loss of the charges”.

It must however be remembered that in cases of defamation, award of damages measure something so intrinsic to human dignity as a person’s reputation and honour as these are not marketplace commodities. Unlike businesses, honour is not quoted on Stock Exchange. The true and lasting solace for the person wrongly injured is the vindication by the Court of his or her reputation in the community. The greatest prize is to walk away with head high, knowing that even the traducer has acknowledged the injustice of the slur. There is something conceptually incongruous in attempting to establish a proportionate relationship between vindication of as reputation, on the one hand, and determining as sum of money as compensation, on the other. The damaged reputation is either restored to what it was, or it is not. It cannot be more restored by a higher award, and less restored by a lower one. It is the judicial finding in favour of the integrity of the complainant that vindicates his or her reputation, not the amount of money he or she ends up being able to deposit in the bank. This is not to underrate the part monetary awards play in our society. The threat of damages will continue to be needed as a deterrent as long as the world we live in remains as money oriented as it is. Moreover, it is well established that damage to one’s reputation may not fully be cured by counter-publication or apology; the harmful statement often lingers on in people’s minds. So even if damages do not cure the defamation, they may deter promiscuous slander, and constitutes a real solace for irreparable harm done to one’s reputation. See Albie Sachs, J in Dikoko vs. Mokhatla 2006 (6) SA 235 (CC); 2007 (I) BCLR I (CC).

Similar sentiments were expressed by the Court of Appeal in Nation Media Group Ltd & 2 Others vs. John Joseph Kamotho & 3 Others Civil Appeal No. 284 of 2005 where it was held:

“In actions for defamation and in any other action where damages for loss of reputation are involved, the principle of restitution in integrumhas necessarily an even more highly subjective element. Such actions involve a money award which may put the plaintiff in a purely financial sense in a much stronger position than he was before the wrong. Not merely can he recover the estimated sum of his past and future losses, but, in case of libel, driven underground, emerges from its lurking place at some future date, he must be able to point to a sum awarded by a jury sufficient to convince a by-stander of the baselessness of the charges. Properly speaking, a man defamed does not get compensated for his damaged reputation, that is, simply because he was publicly defamed. For this reason, compensation by damages operates in two ways –as vindication of the plaintiff to the public and as a consolation to him for a wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money.”

The plaintiff in this case has sought an award of Kshs 30,000,000. 00 in general damages for defamation. In assessing damages in an action for libel one has to consider the particular circumstances of each case, the plaintiff’s position and standing in society, the mode and extent of publication, the apology, if offered and at what time of the proceedings, the conduct of the defendants from the time when libel was published up to the time of judgement. Whereas the freedom of expression enjoyed by the press is recognised, that freedom must be exercised with maturity and it should not be used as a weapon to destroy the names of those they hate; the freedom should not be used to injure the reputation of others unless the one exercising such action is ready to substantiate the injurious allegations.

In this case the publication was in an electronic media which obviously had wide coverage. That the plaintiff is a person of no mean reputation is not in doubt. From the evidence adduced she is not only a public figure but a person with international reputation. The publication therefore must have seriously affected her reputation taking into account the nature of the allegations made.

In Patrick Nyoike vs. People Limited [2013] eKLR,the plaintiff was on 19th April, 2013 awarded Kshs 4,000,000. 00 general damages and Kshs 100,000. 00 aggravated damages. InKen Odondi & 2 Others vs. James Okoth Omburah T/A Okoth Omburah & Company Advocates [2013] EKLR,an award of Kshs. 7,500,000. 00 in general damages was reduced by the Court of Appeal to Kshs 4,000,000. 00 on 19th July 2013 while an award of Kshs 500,000. 00 aggravated damages was upheld.

In Karen Lucas vs. The Standard Limited Nairobi HCCC No. 20 of 2007, this court awarded Kshs 4,000,000. 00 in general damages to the plaintiff who was an internationally acclaimed artist where allegations of immorality were levelled against her.

Exemplary damages are awarded where compensatory damages are not sufficient and when the plaintiff proves that the defendant when he made the publication knew that he was committing a tort or was reckless whether his action was tortious or not and decided to publish it because the prospects of material advantages outweighed the prospects of material loss; i.e. the tortious act must be done with guilty knowledge for the motive that the chances of economic advantage outweigh the chances of economic or perhaps physical penalty. I am not satisfied that the publication of the article complained of was done with such a motive. 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 and will be ordered against a defendant who acts out of improper motive e.g. where is actuated by malice; insistence on a flimsy defence of justification or failure to apologise. In an action for libel the trial court in assessing damages is entitled to look at the whole conduct of the defendant from the time the libel was published down to the time the verdict is given. It may consider what his conduct has been before action, and in court during the trial. See Gicheru vs. Morton & Another [2005] 2 KLR 332.

As was held in Nation Media Group Ltd & 2 Others vs. John Joseph Kamotho & 3 Others (supra) where it was held:

“The successful plaintiff in a defamation action is entitled to recover as damages compensatory damages, such sum as will compensate him for the damage to his reputation; vindicate his good name; take account of the distress, hurt and humiliation which the defamatory publication has caused. In assessing the appropriate damages for injury to reputation the most important factor is the gravity of the libel; the more closely it touches the Plaintiff’s personal integrity, professional reputation, honour, courage, loyalty and the core attributes of his personality, the more serious it is likely to be. The extent of publication is also very relevant; a libel published to millions has a greater potential to cause damage than a libel published to a handful of people. A successful litigant may properly look to an award of damages to vindicate his reputation: but the significance of this is much greater in a case where the Defendant assert the truth of the libel and refuses any retraction or apology than in a case where the defendant acknowledges the falsity of what was published and publicly expresses regret that the libellous publication took place.”

I have considered the quantum of damages awarded by the Courts hereinabove and ding the best I can in the circumstances I am of the view that the plaintiff is entitled to an award of Kshs 4,500,000. 00 in general damages. For failure to offer an apology I award the plaintiff Kshs 1,000,000. 00

I award the plaintiff interests on both heads of damages at court rates from the date of this judgement till payment in full. The plaintiff will also have the costs of this suit.

Judgement read, signed and delivered in Court this 7th day of November 2014.

G V ODUNGA

JUDGE

In the presence of:

Mr Luseno for Plaintiff

Mr Ndungu for Defendant

Cc Patricia