[2009] KEHC 4210 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

MILIMANI LAW COURTS

Civil Suit 272 of 2000

1. JAMAMU INTERNTIONAL LIMITED

2. JASON MACHARIA MURUGI

3. JULIA WANJIRU MACHARIA:::::::::::::::::::::::::::::::PLAINTIFFS

VERSUS

1. KALAMKA LIMITED

2. KAMAU NGOTHO:::::::::::::::::::::::::::::::::::::::::DEFENNDANTS

AS CONSOLIDATED WITH

CIVIL CASE NO. 273 OF 2000

1. CAPRICORN IMPORTERS AND EXPORTERS LIMITED

2. JAMAMU INTERNATIONAL LIMITED

3. JULIAH WANJIRU MACHARIA::::::::::::::::::::::::PLAINTIFFS

VERSUS

KALAMKA LIMITED

KAMAU NGOTHO::::::::::::::::::::::::::::::::::::::::::::::::DEFENDANT

CONSOLIDATED WITH

CIVIL CASE 647 OF 1999

MARTIN AMADI:::::::::::::::::::::::::::::::::::::::::::::::::::::::PLAINTIFF

VERSUS

1. KALAMKA LIMTED

2. KAMAU NGOTHO:::::::::::::::::::::::::::::::::::::::DEFENDANTS

JUDGEMENT

On 02/07/2008 when the matter came up for hearing the court, was informed that there are 3 matters similar to each other namely HCC 272/00,647/99, and 273/00. That these had been consolidated by Lenaola J on 18/2/2005 and HCC 272/00 was chosen as the lead file. The plaintiff in HCC 647/99 had given evidence as PW1, where as PW2 gave evidence as a director for the plaintiffs in HCC 272/00 and 273/00 which are plaintiff companies. The court, was further informed that the defendant had filed a common defence in all of them. This defence was struck out in HCC 272/2000 by Lenaola J on 7th July 2004, and by virtue of the consolidation of the suits, the striking out order was made to operate for the other suits namely 273/2000 and 647/99, hence the formal proof, though the defendant was invited to participate in the proceedings for assessment of damages.

A perusal of the record reveals that, PW1 gave evidence before Wendoh J on 19/12/2005, produced exhibits and was cross examined. While PW2 gave evidence on 02/07/2008 exparte, as the court, was satisfied that the defence had due notice and no explanation had been given for non attendance.

As pointed out earlier, the defendant was common to all the 3 suits. The content of the 3 plaints with the exception of the amendment of paragraph 7 (i) in HCC 272/00 and 273/00, the rest of the content of the plaint are similar save for the parties.

In HCCC 647 of 1999 the plaintiff is named as Martin Amadi described in paragraph 4 as having been employed by the Lutheran World Federation, a company limited by guarantee, engaged in relief and rehabilitation work and with an international reputation. The plaintiff was working with the said organization doing rehabilitation work and with an international reputation as its senior logistics officer, whose duties were inter alia:- “the administration of the federations tendering and procurement function. The cause of action arose because on the said News paper of 21st February 1999 the defendant made a publication under the heading. “It’s big eating in the name of God.” Where as the caption read that “it is written in the scriptures, that my temple will be called a house of prayer, but you have turned it into a hide out of thieves.” The caption was followed by the words allegedly published of the plaintiff and of him in relation to and in the way of his employment, with the Federation. The words are set out in paragraph 5 of the plaint. It is his contention as averred in paragraph 6 of the plaint that the alleged words were allegedly meant to mean what is attributed to them both in their natural and ordinary meaning and by inuendo as particularlized in paragraph 7 of the plaint.

It was further contended that since they were published in the first page, they were intended to be read and were infact read widely. By reason of this publication, the plaintiff was brought into public scandal, odium, hatred and contempt as a result of which he was seriously injured in his credit and reputation. They further contend that the defendants action in publishing the complained of words was motivated by spite, and male volence and instead after being given an opportunity to withdraw the imputation made by them, and apologize the defendants have refused to do so. By reasons of which the plaintiff has suffered aggravated injury to his dignity, self confidence, and reputation as a senior member of the Federation, an international Christian –founded organization, carrying on relief and rehabilitation work, among the under privileged in society resulting in the reduction of the job opportunities in the job market.

In consequences thereof this plaintiff prayed for:

- General damages

- Exemplary damages

- Aggravated damages

- Costs of the suit

- Interest on damages and costs and

- Such further or other relief this honoraurable court may deem fit to grant.

Concerning the amended plaint in HCCC No. 273 of 2000, the first plaintiff is introduced as a limited liability company engaged inter alia in procurement and general commodity trade and with an international reputation. Where as the 2nd plaintiff and the 3rd plaintiff are introduced as a limited liability company and a female adult who are the Director of the 1st plaintiff, with the 3rd plaintiff being a business woman commanding respect within the business community.

Vide paragraph 5 of the plaint, it is a verred that the first plaintiff was an approved supplier of the Lutheran world Federation of various commodities, and in particular assorted cooking oil, breakfast cereals, assorted juices, peanut butter, fruits and vegetables, washing soaps and detergents as well as many other food and households utensils. The heading of the publication and the caption content are similar to those in HCCC 647/99. Vide paragraph 7, the natural and ordinary meaning as well as the inuendo meant that the plaintiff as well as the 2nd and 3rd plaintiffs through whom the first plaintiff acts had corruptly and unfairly influenced the tendering and procurement procedures of the Federation with the sole intention of favouring themselves.

They maintain that the said words complained of in the plaint referred to and were understood to refer to the 1st plaintiff and its directors, the 2nd and 3rd plaintiff. The said words were allegedly published on the front page of the publication and so were read by numerous un identified people. By reasons of the said publication of the said words, the plaintiffs have been brought into public scandal, Odium, hatred and contempt, and have been seriously injured in their credit and reputation particularly in trade reputation in the case of the 1st and 2nd plaintiffs, and generally as amorally upright professional business person, in the case of the 3rd plaintiff. It is their stand that the plaintiff published the said words, knowing that, they were libelous and/ or with reckless disregard as to whether they were libelous or not. The same were published with knowledge that the prospects of material gain outweighed the prospects of material loss. Further that in the said publication, the defendants were motivated by spite and male volence and in spite of being given an opportunity to withdraw the imputation made by them and apologize, the defendants have refused to do so.

By reasons of matters aforesaid, the 3rd plaintiff has suffered aggravafed injury to her dignity, self confidence and reputation as a well respected member of the business community and of society generally which said publication is alleged to have drastically affected to their detriment, their trade dealings with their business associates and generally.

By reasons of the above the plaintiffs herein seek the same relief as in the previous suit.

In HCCC no. 272 of 2000 the first plaintiff is described as a limited liability company where as the 2nd and 3rd plaintiffs were at the material time the directors of the 1st plaintiff. Vide paragraph 5 thereof, it is a veered that the plaintiff was an approved supplier to the Lutheran World Federation of various commodities in particular, general office stationary, and equipment and computer equipment and consumables, building and hardware items, electrical appliances and accessories, agricultural implements and hard working tools. The headings and caption of the publication is given in paragraph 6 of the plaint, and is worded in a similar manner. Paragraph 6 also contains the content of the publication complained of.

Vide paragraph 7, it is contended that the said words in their natural and ordinary meaning as well as the inuendo meant, that the 1st plaintiff was co-owned by senior staff of the federation, and that the said company had been established with the sole purpose and intention of comply and unfairly soliciting and acquiring procurement business with the Federation. They also meant that the first plaintiff was an immoral, dishonest and unscrupulous company in its trade dealings and transactions and that it was intent on unjustly enriching itself at the expense of the federation.

The words also meant that the plaintiff as well as the 2nd and 3rd plaintiff through whom the 1st plaintiff acts, had corruptly and unfairly influenced the tendering and procurement procedures of the Federation with the sole intention of favouring themselves.

They contend that the words complained of in the plaint referred and were understood to refer to 1st plaintiff and its directors the 2nd and 3rd plaintiffs. The publication was made to numerous un identified persons. By reasons of the said publication, the plaintiff had been brought into public scandal, odium, hatred and contempt and have been seriously injured in their credit and reputation particularly in trade reputation, in the case of the 1st plaintiff and generally as morally upright professional business persons in the case of the 2nd and 3rd plaintiffs.

They contend, the said words, were published by the defendant with the knowledge that the prospect of material advantage to themselves by reasons of their publication by far out weighed the prospect of material loss.

Further contend that in publishing and or causing to be published the said words, the defendants were motivated by spite and male volence and in spite of being given an opportunity to withdraw the imputation made by them and apologize, the defendants have refused to do so, and the 2nd and 3rd plaintiffs have suffered aggravated injury to their dignity, self confidence and reputation as well as respected members of the business community and of society generally. The said publication has drastically affected to their detriment, their trade dealings with their business associates and generally. By reasons of matters aforesaid the plaintiffs seek the same reliefs against the defendants severally and jointly with the 2nd defendant being bound because he was acting within the scope of his employment with the first defendant.

Two witnesses gave evidence in this matter. PW1 is the plaintiff in HCCC 647/99. The content of the evidence is a reiteration of the content of the plaint in the said file save that the following was stressed by him:-

- His name was mentioned as one of the people eating the mana.

- That there is mentioned that a number of companies supplying goods to the Lutheran World Federation are owned by employees of the said organization.

- That he was the only employee who worked using holistic systems that supplied goods to Lutheran World Federation and the implication was that since he was a co-owner he was allegedly benefiting from that dealing.

- Maintain that the article portrayed him as a corrupt person or that he was trying to corrupt getting money.

- He is a Christian and the article touched on his faith.

- His carreer had been good before the publication.

- Investigation by the establishment showed that the publication was untrue.

- But despite establishing that the publication was untrue his carreer started a down ward trend after the said publication. He was removed from the management team and then transferred to Kakuma which transfer the plaintiff declined, leading to resignation.

- Upon resignation he secured a job with the Red-Cross at a salary of Ksh. 61,265/= down from Ksh. 110,000. 00 he had been getting from the previous employer.

- Further damages to him was that after the publication of the said article people stopped socializing with him and negative comments were being made about him.

- The drop in salary earning grossly affected the standard of living of his family.

- He instructed his lawyer to write to the defendant to ask them to withdraw the comments and apologize but they failed and or declined to do so.

- To his knowledge the 2nd defendant is the author of the article where as the publisher of the news paper which carried the article is the first defendant.

- He seeks compensation.

When cross examined the plaintiff opted to resign when he was asked to move to Kakuma.

- Agreed that as at the time of publication, his salary with the employer was Ksh. 97,000. 00. But as at the time he left the salary had grown to Ksh. 110,000. 00.

PW2 on the other hand, gave evidence as the second plaintiff in HCCC 272/00 and a director of the first plaintiff in the same case. He is also a Director of the plaintiff in HCC No. 273/00. The 1st plaintiff in HCCC 272/00 is also the second plaintiff in 273/00 with the first plaintiff in 272/00 being a Director in the first plaintiff in HCCC 273/00. The content of PW2s’ evidence is as follows:-

- The case arises from the article authored by the second defendant and published by the 1st defendant produced as exhibit 1.

- He complained that the article was defamatory as his two companies were portrayed as getting the biggest chunk of tendering business in a church organization, thus depicting them as big time thieves.

- This demoralized him as it cast aspersions onto his character as a Christian.

- The allegations were defamatory because to him the business he did at the Lutheran World Federation was through competitive open tendering based on vigorous vetting competitive pricing lowest bidder and proven track record, which qualities the affected companies had.

- Denied the allegation that they had created unfair playing ground.

- Agreed that the two companies were related and this fact had been disclosed to the Federation by the content of exhibit 8 (a) (b).

- Denied that senior staff of the Federation had any interest in the said companies and he was a stranger to holistic company. Exhibit 9, 10 showed who the directors of the two companies are.

- Denied monopoly of business with the named companies.

- It was an upon secret that the two were sister companies and they had been introduced as such.

- He demanded an apology to which there was no response to exhibit 12 .

- The effect of the publication is that it caused aspersions, portrayed them as corrupt persons who uses short cuts to do business which lead to loss of business as nobody wanted to do business with them as a result of which lost tendering business for the three years. This forced him to stop doing tendering business with the Lutheran World Federation.

- Confirmed that the two companies are still in business but never fully recovered from the effects.

The plaintiffs counsel filed written submissions and the salient features of the same are as follows:-

- They contend the defendant defamed and injured the plaintiffs’ reputation by publishing the article complained of.

- It is not disputed that the plaintiff wrote to the defendants, asking them to retract the correct of the publication. There is no dispute that the defendant refused to connect the content of the publication despite being asked to correct the same.

- That all the three suits subjects of this judgement emanate from the publication complained of.

- The plaintiff successfully applied in HCCC No. 272 of 2000 to have the defence filed their in struck out. By reason of this striking out, since the defence in 273/00 and 647/99 had been filed by the same person, who had not qualified as an advocate they stood tainted and upon consolidation of the three suits, the striking out order operates to affect the other 2 files. By reasons of the said striking out, the issue of liability stood settled and what has been left for determination by the court, is the issue of guarantor to damages.

Turning to the article published, counsel submits that, the defendants used the said article to portray the plaintiffs as greedy and immoral persons who were stealing from a non governmental organization in the name of God.

The court, is urged to make a finding that the defendant allegations were not true in so far as they touched on him because his un challenged evidence is that he was a logistic officer and not a co owner of Holistic system. The said allegations were therefore un justified as they were not based on any investigation.

The said PW1 stands un challenged on his testimony that he was portrayed as an immoral person by reason of which he felt that the article had portrayed him as an immoral person, who stole from a charitable organization and this made him suffer a lot of anguish both as a professional and as a Christian. This led to PW1 being ostracized by his fellow management team who viewed him with suspicion and then eventually had him removed from the management team and moved to Kakuma forcing him to resign and then took as a job with red-cross Kenya at half the salary he had been getting from Lutheran World Federation.

The half salary forced PW1 to relocate his family from an up market estate on woodly to the lower income estate at Otiende which relocation caused emotional distress.

The court, is invited to hold that the defendants acted in a most irresponsible and callous manner with a view to financial gain and in the process damaged a brilliant career of PW1, who is a university graduate in Business Administration, and a professional in Logistics. As a result of the tarnishing of his name, he was unable to progress in his career herein and that forced him to relocate to Mozambique.

Turning to the evidence of PW2 the court, is invited to take note of the 3 (three) capacities in which the plaintiff testified namely as a plaintiff in his own right, and as a Director of Jamamu International, and Director of capricon Importers and Exporters limited.

- The court, is invited to find that as per the documents produced namely Articles and memorandum of Association, that the Director of Jamamu International and capricon Exporters and importers since un corporation in 1991 in Jamamu are Jason Macharia Murugi and Julia Wanjiru Mcharia, since incorporation of capricon in 1995.

By reason of this the court is invited to hold that the defendants never carried out any inquiry into the back ground information into the ownership, of the said companies, and if they did so and discovered the truth of the ownership and then went a head to publish the story that the two companies were owned by senior managers at LWF, then they did so recklessly maliciously and falsely.

- It is their stand that, the words complained of were understood to mean that the two companies were engaged in corrupting the tendering process at L.W.F.

- The court, is urged to believe PW2s’ evidence that these two companies namely Jamamu International, and Capricon International and exporters have no relationship with holistic systems limited that, though sisters companies, they specialize in different areas of commodities supplies, a fact which was disclosed to LWF at the earliest opportunity and as such there is nothing to suggest that the companies were solicisting for double allocations of tendering benefits.

- The court, is also urged to believe PW2s’ testimony that it was not un ethical or un usual for the two sister companies to do business with LWF more so when there was disclosure of the relationship between the two companies that they were sister companies, and each specialized in its own area of supplies, thus ousting the publications allegations that the two companies tendered twice for the same items.

- The court, is urged to believe PW2s’ evidence that the benefits reaped from LWF by the two companies was only 2% and not 90% as portrayed by the publication.

- The court, is also urged to believe PW2’s evidence that the LWF had prequalified personnel of suppliers who were tasked from time to time whenever supplies were needed. These would respond by filling in the prices of the items, and the one to be a warded the tender would then be selected competitively after a transparent scrutiny. The court, is invited to hold that the said statements were calculated to portray the tendering process as a sham which was carried on by the plaintiffs in order to corruptly win tenders from LWF and since this was false it implies malice on the part of the defendants.

- The court, to take note of the fact that the two companies issued a joint statement on the matters and followed this up by instructing their lawyer to issue a demand letter asking the defendants to retract the said publication but they defiantly declined to do so not even offer an apology.

- The action of the defendants greatly demoralized PW2, both as an Ethical businessman, as well as a Christian. The court is urged to believe his testimony that his business associates regarded him as corrupt and rediculed him. This led to the dwindling of the request for tenders forcing the two companies to stop engaging in the tendering business all together, thus suffering material damage.

On case law the court, was referred to the case of KENYA TEA DEVELOPMENT AFRICAN LIMITED VERSUS BENSON ONDIMUMASESE T/A B.O. MASESE AND CO. ADVOCATES KISUMU CA 95 OF 2006. At page 7 of the judgement, the court, of appeal, made the following observation at line 17 from the bottom “ these were clearly libelous allegations which had no justification and since there was an admission of their publication in the defence filed by the applicant, there would have been no better findings as to the blame placed on the applicant than what the learned judge of the superior court, found. The letter was defamatory of the plaintiff and he was entitled to some compensation.

At the same page 7 the same court, of appeal enunciated the principles which should guide the court, on the amount of damages to be awarded to a party who suffers libelous corresponses. It is noted that these principles had been outlined in the case of JONES VERSUS POLLARD (1997) EMLR 233 at page 243 and which had been quoted with approval and the principles applied in the case of JOHNSON EVAN GICHERU VERSUS ANDREW MORTON AND MICHAEL OF MARA BOOKS LIMITED NAIORBI CA NO. 314 OF 2000. The said principles are enumerated as follows:-

1. The objective features of the libel itself such as its gravity, its province; the circulations of the medium in which it is published and any repetition.

2. The subjective effect of the plaintiffs feelings not only from the prominence itself but from the defendants conduct, thereafter both up to and including the trial itself.

3. Matters tendering to mitigate damages such as the publication of an apology.

4. Matters tending to reduce damages.

5. Vindication of the plaintiff past and future.

At page 8 of the said judgement, the law lords reviewed numerous cases on awards of damages, decided both by the superior courts’, and the court, of appeal, and there is no harm in reflecting the same here. These are:-

- The case of GEORGE ORARO VERSUS BARACK WESTON MBAJA HCCC NO. 85 OF 1992 where the high court awarded Kshs. 1. 5. Million for defamation contained in an affidavit sworn in the U.S.A.

- The case of ABRAHAM KIPTANUI VERUS FRANCIS MWANIKI AND 4 OTHERS HCCC NO. 42 OF 1997 where Juma J (UR) awarded former comptroller of state house Kshs. 3,500,000. 00 as general damages for libelous statements published by the new defunct target newspaper.

- The case of JOSHUA KULEI VERSUS KALAMKA LIMITED HCCC NO. 375 OF 1997 (UR) Okubasu J as he then was (now JA) also in a case involving the former comptroller of state house, awarded him Ksh. 10,000,000. 00 as general damages against the people daily newspaper.

- The twin Biwott cases i.e. NICHOLAS BIWOTT VERSUS CLAY LIMITED AND ANOTHER AND BIWOTT VERSUS DR. IAN WEST AND ANOTHER HCCC NO. 41068 OF 1994 a sum of Ksh. 30,000,000. 00 was awarded for publication that had clearly international as well as local circulation.

- The case of CHARLES KARIUKI T/A CHARLES KARIUKI AND COMPANY ADVOACTES HCCC NO. 59 OF 2000 (MERU) an award of Kshs. 20,000. 00 was made to an advocate for libel.

- On 6th May 2005 Khaminwa J in Mombasa HCCC no 102 of 2000 Daniel Musinga T/A Musinga and Co. Advocates,warded to the then advocate now a puisne judge Ksh. 10,000,000. 00 for a statement in a local dachy.

- Earlier in January 2004 Lenaola J made an award of Ksh. 17,000,000 to the plaintiff in HCCC no 956 of 2003 OBURE VERSUS TOM ALWAKA AND OTHERS who had sued a local tabloid of the sensational type “ the weekly citizen” on libelous publication on its head line Ex Minister Obure steals mans wife.

- On 28th January 2005, Ransley J (as he then was now (retired) in Hccc no. 1717 of 1999 made an award of Ksh. 2,500,000. 00, general damages and Ksh. 500,000/= exemplary damages to retired Hon Mr. Justice Akiwumi who had sued the respondent there in, for libel, the subject matter of the Gicheru Appeal. “Justice Akiwumi is a retired judge of the CA and was one of the three commissioner in the judicial commission of inquiry in the death of Dr. Ouko”

At page 9 of the judgement, the law lords of the CA, made observation at line 1 from the top as follows:

“A part from the quoted seventh case, the rest mostly concerned political elites, senior civil servants, and advocates. They also included defendants who would qualify to be called gutter press, and who did not defend the suits filed against them and that no appeals had been lodged against the decisions made in those cases.”

At the same page of the judgement, the learned law lords of the CA quoted with approval the reasoning of Windeger J in UREN VERSUS JOHN FAIR FAX AND SONS PTY LIMITED 117 L.L.C. 115 at page 150 concerning the purpose that an a wards of damages is supposed to serve in a defamation case. This is found at line 10 from the top and it runs thus:-

“It seems to me that properly speaking a man defamed does not get compensation for his damaged reputation. He gets damages because he was publicly defamed. For this reason compensation by damages operates in two ways as a vindication of the plaintiff, to the public, and as a consideration to him for a wrong done. Compensation is therefore a solatium rather than harm measurable in money”

At line 9 from the bottom on the same page 9, the learned law lords of the CA gave the yard stick for the award of damages that was to be followed . It runs thus:-

“The letter, the subject of this appeal was to the complaints commissions only. No other letter was written. Looked at as a whole and compared to the other cases quoted in the Gicheru case, the publication herein was not to the world at large, it was limited only to the complaints commission.

…….we are of the view that the learned judges’ award in the case subject of this appeal, was too high in the circumstances and did not reflect the correct estimate on damages ………….we think that a composite a ward of Kshs. 1,500,000. 00 would represent a fair and, reasonable solatium to the respondent.

Reference was also made to the case of JOHNSON EVAN GICHERU VERUS MICHAEL O’MARA BOOKS LIMITED NAIROBI CA 314 OF 2000. The salient features of this decision as per this courts own opinion, that are relevant to this judgement are as follows:-

- At page 3 line 7 from the bottom, there is found the grieving defamatory meaning. It is noted by the CA that “the meaning was derived both from natural and ordinary meaning of the words as well as an innuendo.”

- The defamatory meaning ascribed to those words both in their natural and ordinary meaning as well as the inuendo were:-

(a)“That the applicant had been compromised in the discharge of his duties by a party implicated in the matter he was inquiry into.

(b)Appellant was corrupt.

(c)The appellant was not a fit and proper person to be a judge and finally;

(d)That the appellant manipulated proceedings in which he was presiding contrary to his undertaking as a judicial officer, and was therefore a dishonest judge and lacked integrity.”

The aggravating factors are found at page 4-5 of the said judgement and these are:-

(i). When approached by counsel for the applicant to render an apology the defendants’ solicitors allegedly declined to render one, because firstly the publishers was a highly reputable and reknown international standing by reasons of which, they do not publish books which contain untrue defamatory statements. Secondly they had conducted personal interviews with the retired president Moi himself, over the said issue. 3rdly the said solicitors had allegedly construed the said passages and found them to be in capable of any defamatory meaning.

(ii).The 2nd defendant put in an application to strike out the defamatory meaning given in paragraph 6.

(iii).The sales of the book containing the three paragraph 5 complained was still going on even as at the time of the hearing of the appeal meaning that the defamation was still being repeated.

Case law on powers of an appellate court, is set out at page 7-8 of the said judgement while that on case law on awards of damages in defamatory cases, made by the superior court, which case law has already been set out herein, when dealing with the decision of the same court in the Kenya Tea Development Agency limited case (Supra) were also set out.

At page 10 line 16 the CA made the observations repeated in the Kenya Tea Development Agency case (Supra) that the common denomination in the six a fore mentioned cases and awards are that:-

(i).First, they mostly concern prominent political elites, the majority of them being politicians of considerable clout, or high ranking civil servants and advocates.

(ii).2ndly the publication condemned in damages are mostly what qualify to be termed, gutter press.

(iii).Thirdly the defendants in almost all of the cases, did not defend the suit

(iv).Finally for unknown reasons, no appeals had been preferred against those decisions, and if lodged they had not yet been heard by the CA.”

The CAs’ considered opinion on the said awards was as follows:

“in My considered opinion, the awards so made is that they lack judicial basis, they may be found to be manifestly excessive, and should not at all be taken as persuasive or guide lines for awards to be followed by trial courts’, since the trial judges concerned appeared to have ignored fundamental principles of warding damages in libel cases”

At page 11 of the judgement line 3, from the top, it is observed that:

“ The damages in a libel case are of course at large. The latitude is very wide see the case of BRAY VERSUS FORD (1896) AC 44 it would be impossible to say that the verdict was a wrong one”

At line 9 from the top, the CA went on:-

“The learned judge did not express her sense of the uniquity of the respondents. Neither did she consider the absolute blame lessness of the victim the appellant. It is manifestly clear that the false charges and insinuations against the appellant are absolutely without the slightly foundation. It may be argued that not much was thought of the libelous publication, since in any case there after the appellant was elevated to the position of the presiding judge of the court, of Appeal and that of the chief justice. But the allegations are there in print and they live on and persist permanently for generations to come because the respondent have refused to expunge the offending passages”

On the basis of the above reasoning and taking surrounding circumstances into account including the elements of aggravation the CA gave a composite award of Ksh. 6,000,000. 00 to represent a reasonable solatium to the appellant.

Also cited is the case of J.P. MACHIRA T/A MACHIRA AND CO. ADVOCATES VERSUS KAMAU KANYANGA AND THE STANDRD LIMITED NAIROBI HCCC NO. 612 OF 1996 decided by Kihara Kariuki J on 4/4/2005 on the same subject.(case law on the subject is reviewed at pages 6-7. The learned judges’ reasoning for arriving at an a ward of Ksh. 1,500,000. 00 as being adequate is found at pages 7-8 of the said judgement. In this courts’ own understanding these are:-

(i).The learned judge with due respect to the learned judges of the superior court, who had made the awards, provided to the learned judge as a guide, the judge did not understand the rational for awarding what in the judges humble view, were grossly exharbitant sums to Mr. Joshua Kulei Hon. Christopher Obure ,and Hon. Nicholas Biwott respectfully.

(ii).Applied the guiding principles found in section 16 (2) of the defamation Act cap 36, which enjoins the court, to take into consideration any award of compensation either already paid, or anticipated on account of action arising from the same publication which was taken into consideration and the court, allowed Kshs. 1,250,000 .00 as general damages and Kshs. 250,000. 00 for failure to apologize total Kshs. 1,500,000. 00.

The case of STANDARD LIMTED VERSUS KALAMKA LIMITED NAIROBI HCCC NO. 1358 B OF 1998 decided by Alnashir Visram on the 21st day of September 2006. The defamatory complaint are set out at page 2 of the judgement, line 12 from the bottom, the applicable principles are found at pages 3-4 line 4, from the bottom and taking into account all the surrounding circumstances including the fact that this was a one time publication only the court awarded a composite figure of Kshs. 3,000,000. 00.

Due consideration has been made by this court, as regards the guiding principles on the assessment of damages as set out by the court of appeal and as followed by the superior courts, in so far as these relate to assessment of damages, inlibellous litigation, and which this court, will reflect in the process of assessing both the evidence, applicable case law, as well as the final awards which are to be considered by the court, on the issue of liability. It is on the record that defences in all the three consolidated files were common and were struck out. The defence only participated during the hearing of PW1s evidence in HCCC no. 647/99, and not the other two. Counsel for the plaintiff has submitted that by virtue of the defences having been struck out and failing of the defence to offer any evidence, the issue of liability has been settled and established in favour of the plaintiff. The question for determination by this court is whether by reasons of matters aforesaid assessment of liability herein is fore closed and the plaintiff should be given a clean bill of success which bill would then usher in the assessment of damages on quontum only.

Case law from the court of appeal decisions on the subject provide guidelines. There is the case of BACHU VERSUS WAINAINA (1982) KLR 108 where it was held inter alia that the “the burden of formal proof is the same as that required in any civil case. There is also the case of KARUGI AND ANOTHER VERSUS KABIYA AND 3 OTHERS (1987) KLR 347 also a court of appeal decision, where it was held inter alia that “the burden on a plaintiff to prove his case remains the same throughout the proceedings, even though the burden only becomes easier to discharge where the matter is not validity defended. The burden of proof is in no way less and because the case is heard by way of a formal proof.”

Applying the foregoing guidelines to the facts herein, it is clear that despite the striking out of the defences in the 3 matters, the court, is obligated to examine the content of the publication complained of, and determine whether it is defamatory or not before proceeding to assess damages.

There are no issues on record. The court, has to draw up its own for purposes of assessment of damages.

1. Whether there was publication.

2. Whether the publication bear a defamatory meaning.

3. What is the quontum of damages payable?

As regards issue number 1 the same is answered in the affirmative as the same was produced as exhibit 1.

As regards the defamatory meaning these are set out in the respective plaints. Both PW1 and PW2 testified as to what they understood them to mean. This court, has revisited the same and finds that the same were defamatory of the plaintiff as shown hereunder:

1. In respect of the plaintiff in HCCC 647/1999. This plaintiff gave evidence as PW1. He has demonstrated that indeed:-

- He was an employee of the Lutheran World Federation.

- That he was by then in the management team.

- That he was transferred to Kakuma shortly after the publication.

- That he was linked to a company known as Holistic systems but had no link to the same.

- That it was alleged that him and others in the senior management of Lutheran World Federation were eating from the Lutheran World Federation in the name of God and were therefore thieves.

- That as at the time PW1 closed his testimony, no evidence stood before him to demonstrate that he was indeed eating from the L.W.F in the name of God.

- The court, agrees that so far, the plaintiff has demonstrated that the publication was defamatory of him and the meaning attributed to the content of the publication in so far as they relate to both the natural and the innuendo meaning attributed to them by PW1 stand.

- A demand for an apology was not responded to.

- The publishers were in a position to confirm the correct position on the ground which they did not, as such their conduct can easily be termed malicious.

- Defamation has been demonstrated by the portrayal that PW1 has put forward, namely that he was greedy, immoral unchristian, stealing from his employer.

- Demonstrated that he had no link to either holistic systems company or to the other two companies’ subject of these proceedings in the other 2 cases. All the above go to demonstrate that PW1 was defamed.

Having arrived at the conclusion that PW1 was deformed it then follows that he is entitled to damages. The reason for the award was given as:-

- He was transferred to Kakuma shortly after the publication. There is however no demonstration that this was a demotion as there is no allegation he was moving to Kakuma on a lesser salary. This being the case, possibility that PW1 may have been routinely transferred to Kakuma cannot be ruled out. Further there is no demonstration that a member of the management team could not be transferred out of the head quartes.

Further ground offered by PW1 is that, as a result of his declining relocation to Kakuma, he opted to resign and look for a job elsewhere namely with the Red Cross, at almost half of the salary from the previous employer. He therefore asked this court, to consider this fact when awarding him damages. In this courts’, view, reduction in the salary can only count if it can be demonstrated that PW1s transfer to Kakuma was a demotion and on account of the publication. The court only has the word of PW1 that it was so linked. In this courts’, opinion, the defamation can operate distinctly from the transfer in the absence of such demonstration, the defendant cannot be penalized for PW1’s choice to decline the transfer to Kakuma and instead opt for a job within familiar surroundings at a lesser salary.

Lastly the issue of repetition of the libelous matter is also a determining factor, on in the amount that a court, of law, may award to an aggrieved party. In the case of Evans Gicheru (supra) the CA interfered with an award of damages made by the superior court because the libelous matter was contained in a book read widely.

(ii) The Respondent who were the publishers had refused to expunge the content from the book.

(iii) By reason of what has been stated in number (ii) above, the possibility of the libelous matter being reprinted and circulated in subsequent copies and sold for value or a profit could not be ruled out and for this reason increased the damages from 3m to 6m.

Turning to the claims in HCCC 272/00 and 273/00:-

(i).There is demonstration through the unchallenged evidence of PW2 that tendering was open and competitive.

(ii).That prior to this incident, the affected companies had been involved in similar tendering process with L.W.F previously without any problem. Which tendering had always been done openly and awarded openly with the plaintiff companies having a good track record.

(iii).It has been demonstrated by production of exhibit 8 (a) (b) that the relationship of the two companies had been disclosed to L.W.F long before the incident subject of these proceedings a rose.

(iv).There is no proof that senior staff from L.W.F. were shareholders or Directors in the said companies as exhibits 9 and 10 clearly show who the Directors of the two companies are.

(v).It has also been demonstrated that the two companies have no link to holistic system company.

(vi).It has been demonstrated that had the defendants bothered to carry out an inquiry, they would have confirmed the correct position.

(vii).Although PW2 said that they lost tendering business with L.W.F. in particular and elsewhere generally, but that had since recovered, no figures were tendered to show what was lost in the period before the recovery.

(viii).It has not also been demonstrated that the two sister companies were at fault in tendering in the manner they did, more so when they had tendered in different commodities and not similar commodities, so as to amount to double tendering.

(ix).The plaintiffs’ assertion that malice has been implied by the defendants’ failure to confirm the correct facts before publishing the story has not been ousted.

Turning to the assessment of damages, the court makes a finding that the principles for assessment of damages are the same, with the major one being lack of permanence of the libelous material.

(ii) Lack of repetition of the publication and fact that there is wide latitude in the making of an award in such claims.

(iii) This court, has no doubt that the wide latitude is nothing but the exercise of judicial discretion, which is unfettered with, whose only fetter is that it be exercised judiciously and with a reason.

(iv) The wide discretion not withstanding the court has to bear in mind the fact that such damages are a soliatum not meant to enrich the victim but compensate the victim for the injury suffered.

(vi) The court, also has to take note of the fact that where the victims are related like in the case of the two sister companies, awards made in one case has to be considered when making an award in the second case.

(vii) The trend of the CA as shown by the decisions cited, is that hefty awards have no place in modern jurisprudence and should be discouraged. That being the case, this court as a subordinate to the CA has no alternative but to fall into step with the stand currently taken by the CA on weighty awards in such like litigation.

The last to be dealt with is, circumstances under which exemplary and punitive damages are payable. This court, had occasion to consider the circumstances under which such damages are payable in an own judgement delivered by this court, on the 7th day of May 2008 in the case of MARTIN TINDI KHAEMBA VERSUS THE STANDARD NEWSPAPER NAIROBI HCCC NO. 727 OF 2005. At page 19 of the said judgement, there is cited with approval the decision of MIKIDADI VERSUS KHAGAN AND ANOTHER (2004) KLR 496 decided by Ochieng Ag J as he then was (now J), In which the learned judge revisited the law on the subject. In his lordships holdings, are set out herein inter alia as hereunder:-

1. Where the defendant in a defamatory suit fails to contact the plaintiff to verify the truth or otherwise of the statement before causing it to be published, and upon publication says that no apology is necessary, or warranted and even further insists that the contents are factual when they are not, that may be a clear manifestation of an attitude of recklessness.

2. The successful plaintiff in a defamation action is entitled to recover as a general compensation; damages such sum as will compensate him for the wrong he has suffered. That sum must compensate him for the wrong he has suffered, for the damages to his reputation, vindicate his good name and take account of the distress, hurt and humiliation which the defamatory publication has caused. The court, must take the necessary precaution to ensure that whatever award it gives to a successful plaintiff is generally in line with what courts’ have been awarding.

3. Exemplary or aggravated damages are meant to compensate the plaintiff for the additional injury going beyond that which flowed from the words alone.

4. The factors which tend to increase and or aggravate damages are.

(a) Manner of publication and extent of circulation.

(b) Defendants’ actual malice.

(c) Defendants subsequent conduct.

(d) Failure to apologize.

(e) Justification and.

(f) Conduct of the defendants’ case.

5. Exemplary damages are only to be awarded in limited instances namely.

(a) Oppressive, arbitrary or unconstitutional action by servants of the government.

(b) Conduct calculated by the defendant to make him a profit which may well exceed the compensation payable to the plaintiff or

(c) Cases in which the payment of exemplary damages is authorized by statute.

There is also the case of OUMA VERSUS NAIROBI CITY COUNCIL (1976) KLR 297 decided by Cheson J as he then was. At page 305 paragraph 1 the learned judge as he then was, quoted with approval the decisions of DUMBELL VERSUS ROBERTS (1944) IA11 ER 326,330 thus:-

“In torts affecting property the court, will allow exemplary damages if there has been a wanton intentional interference on the part of the defendant. The commonest example is trespass to land. I am satisfied and have found that the council’s servants and/ or agents trespassed to the plaintiff premises. There was however no evidence of their acting with a high hand or wanton or violence”

Applying the afore set out principles to the facts herein, the court, is of the opinion that there will be no award for exemplary damages as it has not been demonstrated that the defendants acted in a high handed wanton and violent manner, as all they did was to publish a false story about the plaintiffs. Secondly, there will be no award for aggravated damages as action of government employees are not involved.

For the reasons given in the assessment, the court, finds the plaintiffs in all the consolidated cases to have proved their cases against the defendants jointly and severally on a balance of probability. The court proceeds to enter judgement for them on the following terms.

1. For the plaintiff in HCCC No. 647/1999

(a) Aggravated damages disallowed

(b) Exemplary damages disallowed.

(c) General damages for defamation Kshs. 1,500,000. 00

(d) Interests on the general damages from the d ate of judgement until payment in full

(e) Costs of the suit.

2. For the plaintiffs in HCCC No. 272/00

(a) Aggravated damages disallowed

(b) Exemplary damages disallowed

(c) General damages for defamation.

(i).For Jamamu International Limited Kshs. 1,000,000. 00

(ii).Jason Macharia Murugi Kshs. 1,000,000. 00

(iii).Julia Wanjiru Macharia Kshs. 1,000,000. 00

(d) Interest on the judgement sum at court, rates from the date of judgement till payment in full.

(e) Costs of the suit.

3. For the plaintiffs in HCCC 273/00. The award herein to take into account the awards in the HCCC 272/00 since the parties are interelated.

(a) Aggravated damages disallowed

(b) Examplary damages disallowed

(c) General damages for defamation.

(i).Capricorn importers and exporters limited Kshs. 1,000,000. 00

(ii)Jamamu International Ltd. Kshs. 400,000. 00

(iii).Julia Wanjiru Macharia Kshs. 400,000. 00

(d) Interest on the decretal sum at court rates from the date of judgement till payment in full.

(e) Costs of the suit.

DATED, READ AND DELIVERED AT NAIROBI THIS 3RD DAY OF JULY 2009.

R.N. NAMBUYE

JUDGE