[2017] KEHC 6725 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL CASE NO. 3 OF 2017

HON. DR. EVANS KIDERO……………..….....……………………PLAINTIFF

VERSUS

JOHN KAMAU…………………………….......……………...1ST DEFENDANT

NATION MEDIA GROUP LTD ...…………………………....2ND DEFENDANT

RULING

What is before the court for determination is the notice of motion dated 11th January, 2017, brought under order 40 rules 1, 2, and 3 of the Civil Procedure Rules, 2010, sections 1A, 1B, 3A and 63 (e) of the Civil Procedure Act. The plaintiff applicant has sought the following orders;

(a) That pending the hearing and determination of the suit, there be an order of temporary injunction, restraining the defendants and any other agent or employee of the 2nd defendant from further publication of the defamatory articles that the plaintiff/applicant complains of herein or any other defamatory article, words, material, testimony or remarks against, of and concerning Hon. Dr. Evans Kidero in Relation to the report of the Auditor General on the financial statements of county Government of Nairobi City for the year ended 30th June, 2015, in any forum or medium whatsoever.

(b) The costs of this application be provided for.

The application is premised on the grounds set out on the body of the application and its supported by the affidavit of Hon. Dr. Evans Kidero sworn on the 11th January, 2017.

The applicant who is the Governor of Nairobi City County Government was sworn in on 27th March, 2013. He depones that he swore to restore Nairobi city to its former glory and to lead the residents of Nairobi towards achieving the vision 2030 goals.

That pursuant to that undertaking, he embarked on a journey to ensure that his administration offers a better city and a better life for every single resident of Nairobi County. That Nairobi City County Government has made several commendable strides under his regime such as launching a new 120 bed maternity wing at Mbagathi Hospital with a total of 20 incubators in addition to fully functional ambulance that is operational day and night.

He further depones that under his administration he has embarked on a journey of rehabilitating and improving Pumwani Hospital and has seen to it that it offers free services, he has also seen to it that Mama Lucy Hospital gets an upgrade in terms of staffing of doctors and nurses among many other achievements.

That despite this evidently commendable performance and with all the challenges the county faces, in the Daily Nation Newspaper published on 5th December, 2016 at page one of the said newspaper, the defendant/respondent maliciously, recklessly and without any justification whatsoever published and caused to be published FALSE defamatory Articles, captions and/or story of and concerning the plaintiff in relation to the governance of Nairobi County Government with his photograph prominently featuring therein with the caption “Kshs.20 Billion audit shocker for county”.

That further at page 10 of the same Daily Monday Edition Newspaper of the 5th day of December, 2010, the defendant falsely and maliciously published or caused to be written, printed and published a defamatory caption, article, report and/or story concerning the plaintiff which reads as follows;

“That means billions of shillings collected on behalf of the county Government are put together with other incomes collected by web tribe-the company that owns Jambo pay. The Auditor says that given this scenario it is not possible to ascertain how much revenue the Dr. Evans Kidero- led Government Collects every year…..Dr. Ouko’s report not only paints a bleak picture of Governor Kidero’s government but also says its negative financial assets…..may cast doubt about the ability of the Nairobi City County Government to continue as a going concern”

He avers that he believes that the said words as widely published, expressly and/or by way of innuendo, are, in their natural and ordinary meaning, defamatory of the plaintiff and by the said published words the defendants meant and were understood to mean;

“He is a swindler, lacks integrity, is corrupt, is a thief, he is a conspirator in defrauding public revenue, that he is a white collar criminal undeserving of holding public office, he is exploitative and a profligate.”

The plaintiff further avers that at page 1 of the Daily Nation Newspaper published on Thursday the 8th day of December, 2016, the defendant falsely, maliciously and without any justification whatsoever published and caused to be published, defamatory article and/or words of and concerning the plaintiff with his photograph prominently displayed therein as follows;

“Fresh bid to probe Kidero’s NGO’s cash. NGO Board orders investigation into source.”

He believes that the said words as widely published expressly and/or by way of innuendo, are in their natural and ordinary meaning defamatory of him and by the said published words, the defendant meant and was understood to mean he has been siphoning public revenue collected on behalf of Nairobi City County Government to finance the Kidero foundation.

That further at page 6 of the Daily Nation Newspaper published on Thursday the 8th December, 2016, the defendants falsely, maliciously and without any justification whatsoever published and/or caused to be published FALSE defamatory article and/or words of and concerning the plaintiff;

“The governor has been in the spotlight after the Auditor General, Dr. Edward Ouko, said that the Nairobi City County was unable to account for over 20 billion. As a result, Dr. Ouko said he had been left with no choice but to issue a “no opinion” on the audited accounts. An auditor usually offers a “no opinion” when he encounters so many errors and where information is not made available to him making it impossible for him to complete his audit. Dr. Kidero later said it was not possible to misappropriate 20 billion. While there is no evidence linking the county’s trouble with the fortunes of the Evans Kidero Foundation, the ongoing investigations into Dr. Kidero family outfit will increase political pressure on the Governor eight months to the General Election. The Governor has indicated that he will be seeking re-election”.

The plaintiff believes that the said words as widely published, expressly and/or by way of innuendo, are, in their natural and ordinary meaning, defamatory of him and by the said published words the defendants meant and were understood to mean that inter alia he is a swindler, a thief , corrupt and he has been siphoning public revenue collected on behalf of Nairobi City County Government to finance the Kidero Foundation.

That the said words were defamatory of himself. He avers that the defendants knowingly misrepresented to the public that according to the Auditor General’s report he had overseen the loss of over 20 billion shillings yet there is no single statement in the Auditor General’s report that mentioned him adversely. That the report did not mention him as having personal liability for the alleged loss for all the revenue that had been collected on behalf of the county government.

He averred that had the respondents truthfully reported what was in the Auditor General’s Report, they would have reported that at page 3, the finance county Executive Committee Member has clearly stated that he accepts responsibility for the county Government’s consolidated financial statements. That the defendants failed to interview him before publishing the besmirching articles and that there is no single statement in the entire report in which his name is mentioned as having siphoned public revenue collected on behalf of Nairobi County Government and directed to Kidero Foundation. That, had the defendants interviewed him before the publication he would have willingly and freely informed them that he had not directed any county revenue to the foundation as he is not even a trustee of the foundation.

The plaintiff further deponed that the total revenue collected by the Nairobi County Government was 22 billion and there is no way he could have embezzled all the revenue that was collected. That the defendants deliberately withheld from the public that the Auditor –General’s Report did nothing but to raise accounting queries to which the county Government was supposed to respond to. He states that by reasons of the publications aforesaid, his reputation as a public figure and a high ranking citizen has been tainted and blemished in the estimation of the right thinking members of the public and unless the defendants are restrained by an order of this Honourable court they will further taint and defame the plaintiff based on an entirely fabricated version of the report by the Auditor General on the financial statement of the County Government of Nairobi City.

The application has been opposed vide grounds of objection filed on 23rd January, 2017 and a replying affidavit sworn by Sekoo Owino of even date. It is deponed that the articles as published are not defamatory of the plaintiff as alleged. That the words in the article did not refer to the plaintiff in the terms set out in his affidavit and that the words published were substantially true from the Auditor-General’s Report.

It was averred that the matters being complained of are matters of public interest and in particular relating to public funds and it is the duty of the media to make the public aware of how their funds are being used. That the said words complained of were just and fair comment on the Auditor General’s Report and were published on a privileged occasion.

That the plaintiff was interviewed as stated in the article published on the 8th December, 2016 and he distanced himself from the Kidero Foundation which is in his name and with its trustees being his chief of staff one Mr. Wainaina and the plaintiff’s son Ronald Odhiambo. He avers that the words are substantially true save for the sums of Kshs.2. 7 billion and the defendant published a clarification and an apology which has been annexed as annexure “S03”. He denied that the defendants were malicious in the publication of any of the articles.

He stated that he has been informed by his advocate that malice is a question of evidence and it cannot be dealt with at an interlocutory stage without testing the veracity of the allegations and that at no stage of the articles was it stated that the plaintiff was personally responsible for the loss or any other issue but he is the Governor of Nairobi City County Government and therefore the head of its administration. That the articles did not state that the plaintiff had overseen the loss of 20 billion and/or siphoning the funds personally and that the effect of the plaintiff’s application is to deny the public the right to information regarding the management of Nairobi City County Government.

Parties filed written submissions which they orally highlighted on the 6th February, 2017.

On the 31st January, 2017, the court gave directions that the application be disposed of by way of oral submissions and on 6th February, 2017 parties made their submissions. On the part of the plaintiff/applicant, the court was urged to allow the application relying on the general principles that should guide the court when dealing with an application for injunction in defamation cases which are;

(1) The plaintiff has to establish a prima facie case with probability of success.

(2) The plaintiff has to show that he will suffer irreparable loss

(3) And if the court is in doubt, it will decide on a balance of convenience.

The plaintiff relied on the case of Micah Cheserem Vs. Immediate Media services (2002) 1EA 371 and that of Brigadier Arthur Ndong Owuor Vs. The Standard Limited Nairobi HCCC No. 511 of 2010among others, both of which insist that injunction in defamatory suits should only be granted in clearest of cases.

On prima facie face, it was submitted that, the respondents deliberately and maliciously published defamatory materials against the applicant as shown in the articles complained of. That those publications impute to the right thinking members of the society that the applicant had overseen the loss of over Kshs.20 billion, therefore viewing him as a fraudster and that he was responsible for the loss of revenue through fraudulent deals which imputations are false as there was no single statement in those articles that has mentioned the plaintiff by name.

The court was told that the Auditor General had a problem with the system that was used as it had been recommended that the money be transferred by IFMIS but the transfer was done using the old system and this brought problems in tracing the movement of the funds. That the applicant is not liable for any loss of funds because the management of the county finance is done by specific officers and there is a clear structure that runs the finance department and the plaintiff as the Governor is never involved.

On whether the words refer to the plaintiff, it was submitted that the words speak for themselves and that they refer to the applicant and some of the articles mention him by name and his photograph appears.

On whether the words are malicious, the court was referred to the case of Phineas Nyaga Vs. Gitobu Imanyara HCCC 697/2009 where the court held that malice can be inferred and especially when the language used is overly exaggerated. That there is no evidence that the plaintiff was asked to give his part of the story and to ascertain if the story was true.

On the irreparable loss to be occasioned to the applicant, the court was referred to the case of Mohammed Aden Vs. Nation Media Group Ltd (2016)eKLR where the court held that damages are not enough to compensate a person who has suffered damage to his reputation. And on balance of convenience it was submitted that it tilts towards the applicant.

On the part of the defendants, it was submitted that in the first article, it states that it is an Evans Kidero County Government and the report is picked from the Auditor General’s report. That when the article is read in its entirety it is not defamatory of the plaintiff and it is clear that the defendants contacted the plaintiff for comments but he did not respond.

On the 2nd article, the court was told that the article did not state that the plaintiff took the money or embezzled it , he is not mentioned anywhere in that regard. He was contacted for comments and he said it was not possible to misappropriate Kshs.20 billion. Even the members of the Board of Kidero Foundation were given a right of reply.

On the issue of malice, it was submitted that malice is a question of fact and can only be proved at the hearing. Counsel for the defendants took issue with the supporting affidavit and submitted that it contains evidence which cannot be tested at this stage and its only trying to colour the mind of the court so that the applicant can get the orders sought which orders are vague in any event because what he is asking is that the Auditor’s Report should not be published at all. It was also submitted that it is the duty of the media to disseminate information to the public.

Counsel for the defendants submitted that at the appropriate time upon being served with the summons to enter appearance, they shall put a defence which includes a fair comment and privilege. She referred the court to Halsbury’s Laws of England and Invesco Assurance Co. Limited Vs. Nation Media Group HCCC No. 1197/2003 which talks about the principles of injunction in defamation matters. She concluded her submissions by stating that the plaintiff has not established a prima facie case as the matters discussed are of public interest.

The court has carefully considered the application and the submissions by the learned counsels. The plaintiff/applicant has sought an interlocutory injunction in a defamation matter. The principles for granting such an injunction have been discussed extensively by several courts but one thing that the courts are in agreement is that injunctions in defamation cases are granted only in the clearest of cases. In the case of Ahmed Adan Vs. Nation Media Group Limited and 2 others (2016)eKLR the court stated that;

“The court has jurisdiction to grant interlocutory injunction in defamation cases but only in the clearest cases. The jurisdiction has been said to be of a delicate nature and ought to only be exercised in the clearest of cases”.

The same sentiments were expressed in the case of Micah Cheserem Vs. Immediate Media services (2002) 1EA 371 where the court held;

“Application for interlocutory injunction in defamation cases are treated differently from ordinary cases because they bring out a conflict between private and public interest. Though the conditions applicable in granting interlocutory injunctions set out in Giella Vs. Cassman Brown & Co. Ltd (1973) EA. 258generally apply in defamation cases, those conditions operate in special circumstances. Over and above the test set out in Giella’s case in defamation, the court’s jurisdiction to grant an injunction is exercised with greatest caution so that an injunction is granted only in the clearest possible cases. The court must be satisfied that the words or matter complained of are libelous and also that the words are so manifestly defamatory that any verdict to the contrary would be set aside as perverse. Normally the court would not grant an interlocutory injunction when the defendant pleads justification or fair comment because of the public interest that the truth should be out and the court aims to protect a human, responsible, truthful and trustworthy defendants”.

The same principles were restated in the case of Brigadier Arthur Owour Vs. The Standard Limited Nairobi, HCCC No. 511/2010 where the court restated the principles as stated in the celebrated case of Cheserem Vs. Intermediate Services as follows;

“This is an application for an interlocutory injunction pending the hearing and determination of the suit in a defamation case. The parameters for consideration by the court in an ordinary application for interlocutory injunction orders were considered by the Court of Appeal for East Africa in the now famous case of Giella Vs. Cassman Brown & Co. Ltd (1973) E.A 358. The requirements are that an applicant has to demonstrate firstly, that he has a prima facie case with probability of success. Secondly, an applicant has to show that he will suffer irreparable loss or damage if the interlocutory injunction is not granted, that is that an award of damages will not adequately compensate the damage. Thirdly, if the court is in doubt on the above 2 requirements, then it will decide the application on the balance of convenience. In defamation cases, such as the present one, the court of Appeal in the case of Cheserem Vs. intermediate media services (2000) 2EA 371applied the principles in Giella Vs. Cassman Brown (Supra). The court went further to state that the requirements in the Giella Vs. Cassman Brown (Supra) have to be considered with the greatest caution. An interlocutory injunction in defamation cases is granted only in the clearest of cases”.

I now proceed to apply those principles to our case herein.

Has the applicant established a prima facie case, with a probability of success? The applicant has alleged that the respondents have deliberately and maliciously published defamatory materials against him and that those publications impute to any right thinking members of the society that he had overseen loss of Kshs.20 billion therefore viewing him as a thief and a fraudster. I have looked at the article complained of as I am obliged to do. I have also perused the Auditor General’s Report and especially the part titled “Report of the Auditor General on County Government of Nairobi City for the year ended 30th June, 2015”.

As per the said report, the Auditor General’s responsibility is to express an opinion on the financial statements based on the audit and report in accordance with the provisions of section 9 of the public Audit Act 2003 and submit the Audit Report in compliance with Article 229 (7) of the constitution. The Auditor has noted that he is not able to obtain sufficient appropriate audit evidence to provide a basis for an audit opinion. He further to state the basis for his disclaimer of the opinion.

(1) The statement of the financial assets as at 30th June 2015 reflects an accumulated deficit for the year 2016 of Kshs.1585. 813. 209/- and a negative total financial assets of Kshs.1,243,956,397/-. This indicates material uncertainty, which may cast significant doubt about the ability of Nairobi city County Government to continue as a going concern.

(2) The County has a weak control system in regard to revenue collection and accountability. The process of revenue collection was outsourced from web Tribe Limited, which provided an online payment platform called jambopay that allowed users to securely make payments through mobile phone over internet. A review of the County Government records and documentation revealed that the system did not reconcile the amount paid by the users of the platform, the amounts banked and revenue recorded by the County Government. In addition, the virtual funds are held in a trust account by a third party, who is not contracted by the County Government.

As rightly submitted by the counsel for the defendants the first article states that its an Evans Kidero led county Government. The report is picked from the Auditor General’s Report. The financial statement of the County Government were done by the internal County executive which is an arm of the County Government for the Auditor General to verify.

On the 2nd article, the words complained of are also extracts from the Auditor General’s Report. In the report, it’s clear that the Auditor General did not offer any opinion on the financial report. The article does not say that it is the plaintiff who embezzled the money. His name has not been mentioned anywhere in those respects. It is also on record that the plaintiff was given a right of reply and his only comment was that, it was not possible to misappropriate Kshs.20 billion. The Board Members of Kidero Foundation were also given a right of reply.

As ably submitted by counsel for the applicant, there is no single statement in the auditor’s report that mention the plaintiff as having overseen the siphoning of the revenue that had been collected by the county Government. What is published in the articles have everything to do with the Nairobi County Government.

The article published on 8th December, 2016 is on Evans’ Kidero Foundation. The wordings of the article are that the foundation is being allegedly investigated. The plaintiff is said to have dissociated himself from the foundation saying that it was a different entity from him. The plaintiff told the defendants that the foundation is run by Trustees and Directors who are in-charge of its day to day running. He was categorical that he is not a trustee but he is aware that it does exist and what it does.

As earlier on observed elsewhere in this ruling, this court has perused the Auditor General’s Report and its contents Vis - a - Vis the articles complained of. I must hasten to add that at this point, this court is just dealing with an interlocutory application and not the main suit. I appreciate that evidence has to be taken to enable the court to fully deal with the issues at hand, but the following two extracts from Carter –RVCK on libel and slander 5th Edition and that of Gatley on libel and slander, 10th edition may assist in making a determination in the application herein.

In Carter –RVCK on libel and slander 5th Edition at page 94 the writer noted;

“In order to succeed upon a plea of justification, the onus lies upon the defendant to prove that the whole of the defamatory matter complained of that is to stay, the words themselves , and any reasonable inference to be drawn from them, are substantially true…..on the other hand, for the defence to be successful, it is not necessary that every “t” should be crossed and every “i” dotted, it is sufficient if the substance of the libelous statement is justified”.

The same position is advanced in Gatley on Libel and Slander 10th edition.

“……….Some Leeway for exaggeration and error is given by the defence of fair comment and qualified privilege, however, for the purposes of justification, it the defendant proves that; “The main charge or the gist of the libel” is true, he need not justify statements or comments which do not add to the sting of the charge or introduce any matter by itself actionable…………..”

Though the defendants herein have not yet filed their defence, in their replying affidavit, it is deponed that the published words are substantially true from the report of the Auditor General and the matters being complained of are matters of public interest and the words were a fair comment.

I fully concur with the defendants that the published words were substantially true and in the circumstances, they are not prima facie defamatory.

As to whether there was malice on the part of the defendants in publishing the articles, malice is a question of evidence and shall be determined at the hearing of the main trial.

The defendants having told the court that they shall rely on the defence of justification and fair comments, the court should be careful in deciding whether to grant an interlocutory injunction or not but considering the contents in the Auditor General’s reports, and the submissions by the defendants, this court finds and holds that the plaintiff has not established a prima facie case with a probability of success.

The application dated 11th January, 2017 is hereby dismissed with costs to the defendants.

Dated, Delivered and Signed at Nairobi this 16th day of March, 2017.

…………………………………………

L. NJUGUNA

JUDGE

In the presence of

………………………….….……….. For the Plaintiff.

……………………………………...For the 1st Defendant

……………………………………..For the 2ndDefendant