[2017] KEHC 1644 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL SUIT NO. 589 OF 2012

DR. JOHN RITHO KANAGO……….………......…1ST PLAINTIFF

DR. GEOFFREY AVUGWI RITHO……….……..…2ND PLAINTIFF

MARGARET RITHO……………………...….……3RD PLAINTIFF

VERSUS

JOSEPH NGUGI……………………….….…....1ST DEFENDANT

THE STANDARD GROUP LIMITED……....…..2ND DEFENDANT

JUDGMENT

The three plaintiffs who are siblings filed this suit against the defendants in a Plaint dated 23rd March, 2012 seeking damages for defamation arising from the defendant’s publication of an article written by the 1st defendant and published by the 2nd defendant on 13th December, 2011 in the Standard Newspaper together with costs and interest. The impugned article was entitled“UK Court moves to save life of Ailing Kenyan Lawyer.”

The plaintiffs claim that the article complained of was not only false, malicious and defamatory to the Plaintiffs but the same was also libelous, contemptuous and ill motivated to the Plaintiffs, and the Defendants in so publishing the same, were actuated by extreme contempt and spite calculated to injure the Plaintiffs in their personal and professional image, as medical Doctors and Financial Analyst respectively.

The article complained of and as pleaded in the plaintiff’s plaint is that :

“UK Court moves to save life of ailing Kenyan Lawyer

Judge directs Advocate’s three children not to withdraw him from hospital as police probe his injuries.

By Joseph Ngugi

In London.

A UK Court has stopped children of a Nairobi lawyer from withdrawing him from a top London Hospital where he is admitted with serious injuries.

Investigations are yet to establish how Samuel Ritho suffered the injuries while in the care of his three children.

The High Court in London last week ordered that Ritho should be treated at the Royal Free Hospital, Hampstead, North London until a judge was convinced that he was well enough to return to Kenya.

The Court was ruling in a civil case brought by three children of Mr. Ritho, who have sued a social services agency after it took the lawyer to hospital on suspicion that he had serious unexplained injuries. The Children’s mother, Gladys Ritho joined efforts by social services of London Borough of Brent Cross to establish the cause of the injuries after doctors from various hospitals where the lawyer had been taken for treatment raised a red flag after suspecting that the old man had been mistreated.

Mr. Ritho who was at one time the Chief Adjudication Officer at the Ministry of Land and Settlements before becoming a lawyer has a huge property portfolio worth hundreds of millions in Nairobi and other major towns in Kenya.

The Nairobi Lawyer’s children, Dr. John Ritho (cosmetic dentist in London), Geoffrey Avugwi Ritho (a medical doctor in Spain) and Margaret Ritho (financial analysts in America) wanted the Court to compel Brent Cross social services to release their father who they had allegedly taken into care without the family’s consent.

But the social services and Mrs. Gladys Ritho opposed the application on ground that the elderly lawyer was very ill and needed close medical supervision. The social services submitted it was not yet established what caused Mr. Ritho to suffer such visible body injuries, which police had also been asked to investigate.

Various doctors had told the social services that Mr. Ritho had wounds on his back that resembled those of somebody who had been scalded with hot water. He also had a gushing wound on his knee.

Mr. Ritho had been invited by his three children to visit the UK in June last year allegedly to receive treatments for a stroke that had left him partially paralysed on one side. His wife Gladys accompanied him to London. His condition almost turned tragic after Gladys returned to Kenya to renew her visiting Visa.

Interfering with investigations

The ailing lawyer wanted to return with his wife to Kenya, but some of his children allegedly thwarted the efforts. When the case came for mention on Thursday last week, the judge ordered Mr. Ritho should continue receiving treatment at the Royal Free Hospital, Hampstead, North London until doctors declare him fit to travel. The judge also ordered the Children to meet Mr. Ritho’s medical expenses as well as paying Euros 200 (Sh 28,000) every week for their mother’s upkeep while in London.

The couple’s eldest son, Dr. Kanago, a dental surgeon in North London, was ordered not to contact or try to access his father until the case was heard and determined to avoid interfering with investigations.

The other two children, Geoffrey and Margaret were, however, allowed to be visiting their father at hospital.

The judge also recommended that the lawyer with Mr. Ritho’s will, allegedly redrafted in London, should be presented before a Kenyan Court to be interrogated to establish its validity, and whether it had been obtained under duress.

The social services was also ordered to compile a report for the court and that police should keenly investigate allegations of torture on the old man and take urgent actions against any person found to have committed a crime. The case will be mentioned on December 21 for further directions.

When the Standard contacted Mrs. Ritho on Friday evening, she sounded unsettled and unwilling to speak about the saga. It was until Sunday morning when she called back to say her children had visited her and didn’t want her interviewed.

Mrs. Ritho, who taught at Kileleshwa Primary school for many years before retiring, however, said when she returned to Kenya to renew her visa, she was uneasy to leave her husband in the care of their children.

“I didn’t know what had happened to my husband, I couldn’t communicate to him” she said. Mrs Ritho said that when she managed to return to Britain last month, she found that her husband’s health had deteriorated and had open injuries, which could not be accounted for.

She also said that while her husband was able to walk while being aided when she left, he could only be wheeled on a chair on her return.

“I just want to be allowed to take my husband back home. I wish I can do this today,” she said”.”

The Plaintiffs particularized the details of the Defendant’s falsehood, malice, libel, contempt, ill motive and spite in printing and publishing the article. Amongst the particulars articulated are that the Defendants never bothered to contact the Plaintiffs before publishing the article so as to know the truth. The Plaintiffs also claims that the complained article was so malicious, explosive and extreme that the same was meant not only to injure the plaintiffs both in their own personal and professional capacity but the same was also meant to ruin the plaintiffs in their profession as Medical Doctors and Financial Analyst respectively, practicing and working in foreign countries.

The plaintiffs complained that the said article was meant and understood by the reading public to mean inter alia:-

a. That the Plaintiffs colluded to and committed a criminal offence against their own ailing father.

b. That the Plaintiffs thwarted the efforts of their parents to return to Kenya in order to carry out the alleged criminal offence.

c. That the plaintiffs, despite two of them being Medical Doctors, had no respect for life and human beings.

d. That the Plaintiffs are merciless and cruel children who tortured and/or mistreated their ailing father.

e. That the plaintiffs manipulated their ailing father to redraft his will while in London.

f. That the Plaintiffs should not be relied on by their patients and clients because they are capable of engaging themselves with inhuman behaviours.

g. That the Plaintiffs are only interested in their father’s huge property portfolio worthy hundreds of millions.

h. That the Plaintiffs are so mean and cruel that they had to be ordered by the Court to pay their ailing father’s medical Bill and upkeep for their mother while in London.

The plaintiffs further pleaded that the aforesaid false, malicious and defamatory article complained of, continue to be read all over the world through internet and hence the Plaintiffs continue to be defamed whereas Defendants continue to reap considerable financial gain from their aforesaid libelous article and that the Defendants have refused to apologise and/or carry out any corrections as demanded in the plaintiff’s letter of 21st December, 2011.

The Plaintiffs therefore prayed for orders that the Defendants do make a full and unqualified apology, make amends and withdrawal of the said article in the widest possible prominence and circulation similar to that given to the said article, the text and substance thereof to be approved by the plaintiffs. The Plaintiffs also prayed for general, aggravated and exemplary damages for defamation, costs of the suit, interest and such other relief as the court might deem fit.

The plaintiff’s claim was denied by the defendants through their statement of defence dated 11th April, 2013. The defendants admitted that they published the material article complained of but deny that there was any form of falsehood, malice, libel, contempt, ill motive and spite intended. The defendants also pleaded the defence of fair comment and justification.

The particulars of fair comment as contained in the Defence are that ;

a. The words complained of were published in all honesty and they were not intended to maliciously discredit the Plaintiffs’ reputation as alleged or at all;

b. The 2nd Defendant is under a social duty to publish information to the general public and as such, the general public was entitled to receive such information.

The particulars of Justification, as alluded in the Defence, were that;

a. Plaintiffs are the sons and daughter of a Nairobi lawyer, Samuel Ritho.

b. Mr. Ritho was at one time the Chief Adjudication Officer at the Ministry of Land and Settlements.

c. As at 15th December, 2011, Mr. Ritho was ailing and had travelled abroad to seek treatment and was under the care of his children.

d. The High court in London in a civil case brought by the children who had sued a social services agency, had ruled that he be specifically treated at Royal Free Hospital.

e. The Court in its order dated 16th December, 2011 had specifically quoted the 2nd Defendant to have been notified about a proposed application for a reporting restriction, the date of which the Article complained of had already been published.

At the hearing of this suit Dr. Geoffrey Avugwi Ritho, the 2nd Plaintiff testified on oath on behalf of all the plaintiffs as PW1 and adopted his filed written statement. He testified that he had the authority to plead from the other plaintiffs. The witness statement contains the statement of all the plaintiffs. In detailed form, PW1 gave academic and professional profiles of all the Plaintiffs. PW1 is a medical practitioner licensed to practice medicine as a Doctor and Neurosurgeon. He schooled at Nairobi primary School, Strathmore Secondary School, the prestigious Strathmore College of accountancy, University of Nairobi, the prestigious University of Navarre-School of medicine, Pamplona in Spain. He is currently licensed to practice medicine both in Spain and any other country within the European Union (EU) and that he has proceeded to further post-graduate studies to sub-specialise in Neurosurgery at the prestigious Jimenez Diaz Foundation Neurosurgical Institute in Madrid, Spain where he is currently employed full-time and residing.

The 1st Plaintiff Dr. John Ritho Kanago is a medical practitioner practicing in London where he lives with the Plaintiffs’ father. He schooled at Nairobi Primary School, Alliance High School, the University of Nairobi School of dental Surgery, Eastman college in London and the prestigious Royal college of Surgeons in England to become a medical specialist in Pediatric (Children’s) Dental Surgery and Orthodontics.

Their sister, Margaret Mungasia Ritho, the 3rd Plaintiff has worked in the United States of America for about 21 years and holds a senior financial position in the Worldwide Medical Device Corporation headquartered in California, USA. She obtained her Bachelor’s Degree at United States International University, Nairobi and also schooled at Nairobi Primary School, Loreto Convent Valley Road, the Aga Khan High School and Strathmore college of Accountancy.

PW1 testified that as a medical practitioner, the positions he has held are by their nature positions of trust to do no harm and by foundation of such trust, that his friends, fellow colleagues, peers and patients had in him as a medial practitioner was irreparably damaged by the untrue and defamatory article. That the said publication in the Standard newspaper and on the internet, still continues to live in perpetuity on the World Wide Web internet. He also contended that the article started appearing in other websites an example being the article titled “Habari za Nyumbani”

He further stated that the article alleges that him and the other plaintiffs tortured their own father which allegations maligned their character, conduct and humanity and continues so to do with the article living in perpetuity on the world wide web. Upon reading the impugned article, the plaintiffs moved to the Court in London and obtained a Gag order against the Defendants to bar them from publishing such further malicious and defamatory publications, which gag order was issued by the court and the defendants were duly served with the same.

The 2nd Plaintiff testified that on 21st December, 2011, their Advocate wrote to the Defendants demanding an apology and correction and the Defendants failure and refusal to carry out an apology and correction demonstrates grave malice and spite as pleaded in the plaint.

The Plaintiffs’ witness PW1 further stated that the defendants’ statements which are further reiterated in the Defence under the claim of fair comment and justification were not only defamatory but the same were not of any public interest as the plaintiffs are private individuals and that the article was motivated by financial gain.

The 2nd Plaintiff also testified that it is him and the 1st Plaintiff who organized for their father to be flown to U.K London, for better and specialized medical treatment /Neurological treatment after he suffered a stroke at their home in Nairobi and since then he has been trotting from Madrid Spain to London regularly to see his father. That PW1 together with the 1st and the 3rd Plaintiffs’ have spent alot of their money to sustain their father’s medical expenses.

PW1 further testified that it was ridiculous that the writer alleges that the source of the story is his mother, that the writer did not make any effort to contact his brother or himself yet he could be reached. He does not belief that the writer contacted his mother.

It was PW1’s evidence that the 1st Plaintiff who was living with their father was the most traumatised by the publication. Some of his patients and friends asked him various questions as to what had happened between him, his siblings and his father and what he would do about the publication to clear his name. That the 1st Plaintiff had to abandon his practice and spend a lot of time and energy looking for lawyers in London to get a Gag Order against the defendants. That due to the publication revealing private medical details of their father such as location of the hospital, the Plaintiffs transferred their father to a high security room to stop strangers and journalists from accessing him and from asking him various irritating questions regarding the aforesaid publications which meant extra medical expenses.

It was PW1s further testimony that even after the Gag order was issued on 16th December, 2011, the Defendants refused to retract the story and kept it open and the story also appeared on 27th December, 2011 on the website “semaniseme” entitled, “Shame on Ritho family for trying to kill their father for his wealth” and that the defamatory article on the internet on the 13th December was rated as the 2nd most read article in the Digital Standard website after the Kibaki election article.

The Court was told by PW1 that, when the 3rd Plaintiff applied for a promotion position where all the job qualifications had been met, the Boss enquired from her about the said internet article and about the family and the 3rd plaintiff had a very difficult time to clear her name.

In cross examination, PW1 told the court that he was not familiar with the signature of the 1st Plaintiff. That the 1st Plaintiff had different signatures and that his sister signed the statement herself but not in the presence of a commissioner or notary public. PW1 further told the court that their father had suffered head injuries which posed future complications and the doctors warned that he requires specialized treatment. It was on that basis that the Plaintiff’s decided to take him to England. The foreseeable complication arose while his father was in the UK and their mother was there who later left for Kenya to attend a function. On returning to UK, PW1’s mother expressed concern and at that stage the social services took him away, following which the plaintiffs applied for a harbeous Corpus against the social services and they got him back. The social services said that they would investigate whether someone was mistreating their father. There was an issue in the family as their mother wanted their father to go back to Kenya whereas the plaintiffs wanted him to be treated in the United Kingdom.

On further cross examination, PW1 testified that his mother never sued him but was seeking control of their father. When referred to the affidavit sworn by Christopher Michael on behalf of the plaintiff in case number 16/2013, he stated that his mother had sought to be given permission to handle the affairs of his their and the court in England made orders to the effect that his mother and his sister Elizabeth should not molest or in any way interfere with their father.

PW1 testified that he had and still has the power of attorney to deal with his father’s account but his father has the control of how he deals. That their mother died on 14/10/2013 and the cause of death is not known as the police are still investigating.

In re-examination, the witness was referred to the verifying affidavits on pages 52 and 54 of the plaintiffs’ list of documents which he clarified that the 1st and 3rd plaintiffs both signed them together in the presence of the same commissioner in London. PW1 was given the authority to act and plead as per the documents on pages 30-32 of the list of documents. He further clarified that the non-molestation order was issued against their mother and sister who were constantly nagging their father.

Rose Oku, the 3rd plaintiff’s friend testified as PW2 in support of the plaintiffs’ case. She is a Director of a Consultancy Hospitality Business and she knows the 3rd Plaintiff for over 20 years. She stated that on 13th December, 2011, she read the subject article to the effect that her friend the 3rd Plaintiff along with her brothers had mistreated, tortured and injured their ailing father who was found with injuries. That the story was shocking to her as well as to her friends with whom she discussed the story. She enquired about the article from the 3rd Plaintiff who informed her that the article was all false and destructive. Her mother also called her upon reading the article asking whether the article had anything to do with her friend.

In cross examination PW2 testified that she didn’t believe that her friend and brothers mistreated their father. She was also referred to the Affidavit of Christopher Michael Birmes and she stated that she did not believe the contents that the 3rd plaintiff said their mother and her sister were harassing their father. She also stated that every family has issues but she could not believe that her friend could have changed.

Waweru Mathenge testified as (PW3). He is the head of Legal and Secretarial Services at Barclays Bank. He has known the Plaintiffs since 1986 specifically the 2nd Plaintiff whom they schooled together and him and the Plaintiffs were also brought up in the same neighborhood and therefore he knows most of the plaintiff’s family. PW3 testified that upon reading the article, he was shocked and could not believe that Geoffrey, his friend, and the siblings were mistreating their father. He was aware that the 2nd Plaintiff was operating the fathers account with Barclays Bank under a power of attorney. Upon reading the article, he cast doubts on the validity of the Power of attorney and called the Branch Manager, Haille Sellasie branch, to exercise caution on that account and not to allow any withdrawals until further clarifications. He also sought to have the account blocked until further notice.

He discussed the article with his friends and when the 2nd Plaintiff came to Kenya in January, he noticed the account was blocked. He discussed the matter with PW3 who got convinced that the story was not true and that there was a court order against the Defendants. PW3 knew Geoffrey to be a good doctor in Spain. He therefore allowed the 2nd plaintiff to operate the account. On Cross examination, PW3 stated that the title of the article depicts the story as a bad one and what he deduced from the story is that the Plaintiffs were mistreating their sick father. He also stated that the part of the article that ordered the payment of the bills and the maintenance fees for their mother was not defamatory

The Defendants called one witness Joseph Ngugi, the 1st Defendant herein, DW1, who testified that on 11th December, 2011, he received a call from a source in London that there was a case in court involving a prominent Kenya Lawyer. He did his investigations and obtained a telephone number of Gladys, the mother to the Plaintiffs. He stated that on 12th December, 2011 he called Gladys whom they talked for over an hour and Gladys gave her the story of what they were undergoing in London.

DW1 also stated that he has been sued by Geoffrey only, as the other plaintiffs have not filed their statements but he has also seen documents from the other Plaintiffs saying that they have allowed him to do the case. He further stated that Gladys died and it is unfortunate as he would have liked to call her as witness. He thought that the story was of great public importance as three of her children had redrafted their father’s will and also that he wanted Kenyans to know what was happening to one of their own.

On cross examination, DW1 testified that he was giving evidence on his own behalf and that of the 2nd Defendant. He said that he had not met Gladys but they talked over the phone and he did not doubt what she told him. He was given her number by Mambla Muiruri who was Gladys’ Court interpreter in the London case. DW1 admitted that he should have gone to court to get the materials, however, he stated that he wrote the whole story according to what he was told by Gladys. He is aware that the Plaintiffs obtained a gag order and since then he complied and did not write anything concerning the Ritho family. Mambla Mururi told him some of the story that he wrote.

In re-examination, DW1 stated that he did not know the Plaintiffs before and that the story is true, fair and that he did not have any malice in writing it.

At the close of the hearing, Counsels for both parties filed and exchanged written submissions.

The plaintiffs filed their submissions dated 12th April, 2017 and the defendants filed theirs dated 11th July, 2017 which were replied to by the Plaintiffs on 28th July, 2017.

The Plaintiffs’ counsel submitted that the 1st and 3rd Plaintiffs have issued Authority to Plead under the provision of Order 1 Rule 13 (1) and (2) of the Civil Procedure Act and Rules, to the 2nd Plaintiff and it is on that basis that the 2nd Plaintiff signed the witness statement and gave evidence for himself and for the 1st and 3rd plaintiffs.

Counsel for the plaintiffs submitted that the evidence tendered at the trial for the Plaintiffs was unshaken and never contradicted. That the article, “UK court moves to save life of ailing Kenyan Lawyer” is clear to any observer that the Plaintiffs were at the center of their ailing father’s persecution. Concerning the article, the counsel submitted that the allegations that , “a UK Court has stopped Children of a Nairobi lawyer from withdrawing him from a top London hospital where he is admitted with serious injuries” was defamatory and malicious since they are the ones who were insisting on having the father treated in the best possible hospitals in London and that is why they moved to Court to obtain the Non-Molestation Order to safeguard their fathers interests and prevent him from being returned to Kenya before his recovery.

It was further submitted that the defendants did not provide any evidence to prove the allegations that the father to the plaintiffs had been mistreated and had wounds in his back that resembled those of a person who had been scalded with hot water. It was submitted that the defendants did not adduce any evidence to prove the allegations, which burden of proof had already shifted to them to prove that the story was fair, accurate and without malice and therefore the plaintiffs presumed that the Defendants did not have such evidence.

On the Publication that,

“The couple’s eldest son, Dr. Kanago, a dental surgeon in North London, was ordered not to contact or try to access his father until the case was heard and determined to avoid interfering with investigations”

The plaintiffs submitted that no such order was issued. That the allegation in highly defamatory as the 1st plaintiff has been living with his father and he still upto date continue to live with him. It was further submitted that the 1st defendant admitted that he wrote the story on the basis of what he was told by Gladys. The court was told that the evidence is all hearsay and it should not be admitted in Court.

The Plaintiffs relied on several Authorities which I have considered. On the burden of prove shifting from the Plaintiffs to the Defendants where a defence of fair comment and justification is pleaded, the Plaintiffs relied on Gatley on Libel and Slander, 9th edition paragraph 13. 45 where it was stated that,

“the onus of proving that the report is fair and accurate lies on the defendant, but it is sufficient if this clearly appears from the Plaintiff’s own evidence. If the Defendant fails to prove that the report is fair and accurate, the plaintiff is entitled to succeed, however honestly it may have been published…it is for the judge to decide whether the matter complained of can fairly be said to be a report of judicial proceedings.”

On this, the Plaintiffs submitted that what was reported by the Defendants was not the actual court proceeding but rumours from two individuals.

The defendants submitted that the suit is filed by the 2nd Plaintiff on his own and that the evidence given in regard to the 1st and 3rd Plaintiffs is hearsay and should not be admitted contrary to section 62 and 63 of the Evidence Act. The Defendants relied on the case of Kinyatti V Republic *(1984) where the court held that,

“…The rule against hearsay evidence is that a statement other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of a stated fact.”

In publishing the heading of the impugned article, the Defendants submitted that they were guided by the orders in the Habeous Corpus application that,

“No party shall remove, or cause to be removed, Samuel Ritho from the Wellington Hospital or from any subsequent establishment or location where he is receiving rehabilitative treatment without agreement of Dr. Greenwood and express consent of Samuel Ritho. In the event of agreement and consent, all parties shall be notified.”

The defendants further submitted that the article should be looked at in whole so as to ascertain whether it was defamatory or not. He relied on the case of Kagwiria Mutwiri Kioga & Another V Standard Limited & 3 others where the court held that,

“Those headlines themselves did not, in our view contain facts. They were expressions of opinion. The test to be applied to them is one of honesty. If the opinions are honestly held by the respondents, culpability does not attach.”

The defendants submitted that upon receipt of the gag order they pulled down the article on 16th December, 2011 and never republished and if the orders issued by Justice Parker were defied by third parties, then the Plaintiffs should seek redress against them. In justifying that the article was justified and a fair comment, the Defendants relied on section 15 of the Defamation Act which provides that,

“In any action for libel or slander in respect of words consisting partly of allegations of fact and partly of expression of opinion, a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved.”

Having read and considered the pleadings filed by the parties herein, and having considered the evidence on record including the impugned article published in the Standard Newspaper on 13th December, 2011, whose publication is not denied by the defendants herein, and having considered the written submissions, and the authorities relied on, I identify the following as issues for determination;

a. Whether the 2nd Plaintiff’s evidence on behalf of the 1st and 3rd Plaintiffs is admissible.

b. Whether the article published by the defendants on the 13th December, 2011 of and concerning the plaintiffs was false and malicious.

c. Whether the words in the said article, in their natural and ordinary meaning were defamatory of the plaintiffs’ reputation and professional standing.

d. Whether the defence of fair comment and justification is available to the defendants.

e. Whether the plaintiff is entitled to aggravated and general damages for defamation.

f. Who meets the costs of the suit?

On the first issue,Order 1 Rule 13 of the Civil Procedure Rules provides for an avenue where one Plaintiff/ Defendant can plead and act for other Plaintiffs/Defendants. The order provides that,

“Where there are more plaintiffs than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding, and in like manner, where there are more defendants than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding.

(2) The authority shall be in writing signed by the party giving it and shall be filed in the case.”

In this case, the 1st and 3rd Plaintiffs filed Authorities to Plead dated 15th June, 2016 and 13th May, 2016 respectively authorising the 2nd Plaintiff to, “appear, plead and/or act on their behalf in these proceedings.” Even though the Defendants contested the authenticity of the signature on the 1st Plaintiff’s authority to plead, the 1st Plaintiff has not denied the signature and neither was there evidence to show that the same is a forgery. In the case of Ruth Ruguru Nyagah v Kariuki Chege & another [2015] eKLRwhere the Plaintiff had sought interlocutory orders restraining the defendants from publishing any defamatory information, verbally or in writing and where the Plaintiff submitted that the failure by the 2nddefendant to oppose the application is an indication that her averments are true and that the 1stdefendant’s purported authority to swear an affidavit on behalf of the 2nd defendant flies in the face of Order 1 Rule 13(1) and (2) of the Civil Procedure Rules as such authority must be in writing and signed by the party giving it and shall be filed in the case, the court held that,

“the 1st defendant cannot purport to swear an affidavit with authority of the 2nd defendant who has not given that authority in writing and which authority must be filed as required under Order 1 Rules 13(1) and (2) of the Civil Procedure Rules.”

Similarly, in Noor Ahmed Noor & 158 others v Kenya Railways & another [2016] eKLR the court outlined the salient features of Order 1 Rule 13 when it held that, “From the foregoing, the salient requirements of an appearance of one of several Plaintiffs or Defendants, are to have a (i) written document (ii) signed by Plaintiffs or Defendants authorizing one of them to (iii) appear, plead or act, which must be (iv) filed in the case. On perusal of the Plaintiffs’ bundle of documents in the Court record, there is a document titled “Authority to Act (Under Order 1 Rule 12 of the Civil Procedure Rules). The contents therein are very clear, that: the undersigned from the date thereof until the determination of the suit authorize Noor Ahmed Noor the 1st Plaintiff, to act, appear, execute/sign documents/pleadings relating to the suit and to instruct counsel/advocate on their behalf to prosecute the suit. The Authority is accompanied by a list of all the Plaintiffs who appended their signatures. Whilst it is not an express requirement, the Authority also has the descriptions of the firm from which it is drawn and filed and whom to be served upon. I am satisfied that the provisions of Order 1 Rule 13 have been met and consequently find that the point of objection fails.”

The 1st and 3rd plaintiffs herein complied with the provision of Order 1 Rule 13 in authorizing the 2nd Plaintiff to plead and act on their behalf in the proceedings herein.

The case of Wycliffe A. Swanya v Toyota East Africa Ltd & another [2009] eKLRlaid down the elements to be considered in a defamation suit when the Court of Appeal observed that:

“For the purposes of deciding a case of defamation, the Court is called upon to consider the essentials of the tort generally and to see whether these essentials have been established or proved. It is common ground that in a suit founded on defamation the plaintiff must prove:-

“(i) That the matter of which the plaintiff complains is defamatory in character.

(ii) That defamatory statement or utterance was published by the defendants. Publication in the sense of defamation means that the defamatory statement was communicated to someone other than the person defamed.

(iii)That it was published maliciously.”

In the instant case, the plaintiffs contends that the article was defamatory, false and malicious. It is admitted by the defendants that the words complained of were published by them. However, the defendants have disputed the allegations and contention by the plaintiff that the published article was false and defamatory in character.

The court in deciding defamation cases must balance the Constitutional provisions on freedoms of expression and that of the media on the one hand and Article 28 in respect of the inherent dignity of every person which dignity must be respected and protected. Freedom of the media is guaranteed by Article 34 of the Constitution that

“Freedom and independence of electronic, print and all other types of media is guaranteed, but does not extend to any expression specified in Article 33(2).”

Under Article 33(2) specified above, as well as Article 33(3) of the Constitution, every person has the right to freedom of expression which does not extend to, among others, propaganda for war, incitement to violence, hate speech or advocacy of hatred that- constitutes ethnic incitement, vilification of others or incitement to cause harm or is based on any ground of discrimination specified or contemplated in Article 27(4) and that in the exercise of the right to freedom of expression, every person shall respect the rights and reputation of others.

It is not in dispute that the Standard Newspaper is the second most widely read Newspaper in the country and thereby enjoys wide readership at national as well as international circulation via the internet hence an online version can be accessed and read by persons in the Diaspora. The plaintiffs called two witnesses, PW2 was the 3rd Plaintiffs former school mate who read the article, discussed it with colleagues and was shocked and could not believe that the Plaintiffs could harm their father. The Plaintiffs’ witness, PW3 was a former school mate of the 2nd Plaintiff and is the head of Legal and secretarial services at Barclays bank wherein the Plaintiffs’ father operates a bank account. He read that article and as a result, he directed that the account be blocked and the 2nd plaintiff could not transact, yet he had the power of attorney.

I have considered the impugned article and the contents of the same. The Defendants claim that the publication was a fair comment and have pleaded the defence of justification. In the particulars of justification contained in the Defence as well as in their evidence and submissions, the defence is grounded on the facts that the Plaintiffs are children of Samuel Ritho, that their father was ailing and therefore moved to London for further treatments, that their father was once a chief adjudication officer and that the publication is on the general factual statements about the family. However, the Defendants were skeptical and did not justify the defamatory allegations. For instance the publication that,

“The Nairobi Lawyer’s children, Dr. John Ritho (cosmetic dentist in London), Geoffrey Avugwi Ritho (a medical doctor in Spain) and Margaret Ritho (financial analysts in America) wanted the Court to compel Brent Cross social services to release their father who they had allegedly taken into care without the family’s consent.”

was not justified at all. No evidence was called to show that the Plaintiffs had taken their father without consent of the family.

I find that the allegations against the 1st plaintiff that, “The couple’s eldest son, Dr. Kanago, a dental surgeon in North London, was ordered not to contact or try to access his father until the case was heard and determined to avoid interfering with investigations” to be defamatory . When read in context of the whole story, the statement can be understood to mean that the 1st Plaintiff was barred from accessing his father as he was a suspect in the allegations that his father was tortured. The Defendants did not adduce evidence to show that there was such an order.

It is also on record that when questioned about the source of the story, DW1 testified that he obtained the story over a telephone conversation he had with the Plaintiffs mother, Gladys, who passed away in the year 2013. He also stated that he got further information from one Mabla Mururi. Neither of the two sources recorded a witness statement in support of the Defendants allegations. In my view the defendants did not exercise due diligence in that they ought to have contacted the Plaintiffs to hear their story before the publication. The allegation that the Defendants tried to contact the 1st plaintiff is baseless and no evidence was tabled before the court to that effect.

It would have been prudent for a responsible journalist to contact the victims of his story before publication. It would also have been prudent for the 1st defendant to peruse the court record to verify the contents of the story before publication. The 1st defendant did not attend the court session to record the proceedings but heavily relied on what he was told by third parties.

From the testimonies of the two witnesses who supported the plaintiff’s case, I have no doubt in my mind that the said words in the article taken as a whole implied that the plaintiffs were cruel persons who mistreated their father.

Reputation is an integral and important part of the dignity of an individual and once besmirched by an unfounded allegations it can be damaged forever, especially if there is no opportunity to vindicate onself. See Nation Media Group Ltd & 2 others v John Joseph Kamotho& 3 others [2010] eKLR.

I find that the contents of the article do not amount to fair comment and were not made in the public interest. The ailing of a private citizen is not of a public concern and the defendants were not able to establish what public interest they were seeking to address with the story. I find no justification in writing the story depicting the Plaintiff as having mistreated their father when there was no prove of the same.

Without any evidence to prove the allegations of fair comment and justification, and without evidence from any of the sources of the story, the allegations remain unsupported. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. See section 107 (2) of the Evidence Act, Cap 80 Laws of Kenya. Similarly as was submitted by the plaintiff when they relied on Gatley on Libel and Slander The onus of proving that the report is fair and accurate lies on the defendant, but it is sufficient if this clearly appears from the Plaintiff’s own evidence. If the Defendant fails to prove that the report is fair and accurate, the plaintiff is entitled to succeed, however honestly it may have been published…it is for the judge to decide whether the matter complained of can fairly be said to be a report of judicial proceedings.”

The Defendants had the burden to justify their article which burden they failed to discharge and consequently the defences of justification and fair comment cannot be available to them. I therefore find and hold that the plaintiffs have established their case on a balance of probability.

Having said so, I now proceed to consider the issue of damages. In the case of JOHNSON EVAN GICHERU V ANDREW MORTON & ANOTHER [2005] eKLRthe court stated that in an action of libel the trial court in assessing damages is entitled to look at the whole conduct of the defendant from the time libel was published down to the time the verdict is given. It may consider what his conduct has been before action, after action, and in court during the trial. In the said case the learned Judges of Appeal quoted with approval the checklist of compensable factors inJones v Pollard [1997] eMLR 233, 234. The checklist was enumerated as follows:-

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

2. The subjective effect on the plaintiff’s feelings not only from the prominence itself but from the defendant’s conducts thereafter both up to and including the trial itself.

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

4. Matters tending to reduce damages.

5. Vindication of the plaintiff’s reputation past and future.

In applying those principles to this case, I find that the defendants conduct before, during and after the trial of the case is one which will aggravate the damages to be awarded. The defendants after publishing the offensive article, they were approached by the plaintiff by way of a demand letter to an apology but they declined.

In addition to the authorities cited by the parties on award of damages, This court will be guided by the following High Court and Court of Appeal decisions in similar cases of defamation.

In the case ofSamuel Ndung’u Mukunya v Nation Media Group Limited & another [2015] eKLRwhich was determined in the year 2015, the Court awarded the Plaintiff general damages of Kshs.15,000,000, Aggravated damages Kshs. 3,500,000 and damages in lieu of an apology Ksh1,500,000. 00 all totaling to Kshs. 20,000,000/=. The plaintiff in that case was an Advocate of the High Court of Kenya who was aspiring to be a judge.

InArthur Papa Odera v Peter O. Ekisa [2016] eKLRjustice Mbogholi awarded the Plaintiff a composite award of KShs.5, 000,000. 00 to the plaintiff who was a Member of Parliament.

In Nation Media Group Ltd & 2 others v John Joseph Kamotho and 3 others [2010] eKLR the Court of Appeal upheld an award of Kshs 6,000,000 for general damages and Kshs 1,000,000 aggravated damages made by the High Court Ojwang J.B J on 1st July, 2005 in favour of JJ Kamotho the 1strespondent being a cabinet Minister and, a prominent politician.

As I have stated in this judgment, the Plaintiffs are highly qualified doctors and financial analyst living and working abroad and they have proved, on a balance of probabilities that the defendants jointly defamed them by their publication of 13th December, 2011 in the Standard Newspaper.

The plaintiffs are entitled to an award of damages as follows

1st Plaintiff

a. General damages Kshs………..............8,000,000. 00

b. Aggravated damages Kshs …...............1,000,000. 00

c. Damages in lieu of an apology Kshs....1,000,000. 00

TOTAL DAMAGES Kshs.....10,000,000. 00

2nd Plaintiff

a. General damages Kshs………...............7,000,000. 00

b. Aggravated damages Kshs …................1,000,000. 00

c. Damages in lieu of an apology Kshs.....1,000,000. 00

TOTAL DAMAGES Kshs..……………..…….9,000,000. 00

3rd Plaintiff

a. General damages Kshs………...............6,000,000. 00

b. Aggravated damages Kshs …................1,000,000. 00

c. Damages in lieu of an apology Kshs….1,000,000. 00

TOTAL DAMAGES Kshs..……………....…..8,000,000. 00

The plaintiffs are awarded the costs of the suit.

It is so ordered.

Dated, Signed and Delivered at Nairobi this 6th day of December, 2017

………………

L. NJUGUNA

JUDGE

In the presence of:-

…………..…………………….for the 1st Plaintiff

………….……………….…….for the 2nd Plaintiff

…..…………………………….for the 3rd Plaintiff

………….……………….....….for the 1st Defendant

…………………………......….for the 2nd Defendant