[2019] KEHC 5690 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MAKUENI

CIVIL APPEAL NO. 100 OF 2017

JOSPHAT KITHEMBE KYALO.....................................................APPELLANT

-VERSUS-

WEBSTER MUEMA KYALO.......................................................RESPONDENT

[Being an Appeal from the Judgment of Hon. E.Onzere (SRM) in the Senior Resident Magistrate’s Court at Kilungu Civil Case No.60 of 2014, delivered on 20th February 2017]

JUDGEMENT

Introduction

1. The respondent filed a suit in the lower Court seeking general damages for defamation and costs of the suit. The cause of action was said to arise from utterances and publications made by the appellant on or about 07/05/2014 at Kasunguni market.

2. The appellant filed his response and totally denied liability. After the preliminaries, the matter was eventually heard and judgment was entered in favour of the respondent. He was awarded ksh 700,000/= as general damages as well as costs.

3. Aggrieved by the entire judgment, the appellants filed this appeal and listed 9 grounds which were repetitive and can be condensed into 3 grounds as follows;

1. That the learned magistrate erred by finding that the respondent had established the necessary ingredients for defamation

2. That the learned magistrate erred by dismissing the appellant’s counter claim.

3. That the learned magistrate erred in awarding the sum of kshs 700,000/= in favour of the respondent.

4. Directions were given that the appeal be canvassed by way of written submissions. Accordingly, the parties complied and filed their respective submissions.

Appellant’s submissions

5. Relying on the case of John Ward –vs- Standard Ltd (2006) eKLR, the appellant submits that the ingredients of defamation are;

a) The statement must be defamatory.

b) The statement must refer to the plantiff.

c) The statement must be published by the defendant.

d) The statement must be false.

6. He submits that the respondent failed to establish the following two elements of defamation;

a) That the alleged defamatory statement was made by the appellant.

b) That if at all such a statement was made by the appellant, it was defamatory.

7. Further, he submits that the evidence of PW2 and PW3 was contradictory with regard to the time the defamatory words were uttered, the number of people that were being addressed among others. These contradictions, he submits, rendered the two witnesses questionable. He also contends that the fact that the two witnesses are related to the respondent in one way or another means that it was necessary for their evidence to be corroborated.

8. He also submits that there was no proof on a balance of probability that he (appellant) was at Kasunguni Market and that DW2 and DW3 testified to the fact that he may never have ventured to the said market.

9. He submits that an injurious falsehood may not necessarily be an attack on the respondent’s reputation and that no attempt was made to prove that the respondent’s reputation was damaged. That the mere fact that the respondent may have been defamed does not meet the threshold of proof, on a balance of probabilities, that his reputation was disparaged.

10. He submits that it was erroneous for the learned magistrate to dismiss the counterclaim yet it was proven and not in any way contested. He also submits that it was a grave error for the magistrate to fail to assess the damages that would have been awarded had the appellant’s claim been successful.

11. With regard to the award, he submits that this Court should interfere with the damages assessed as the learned magistrate took into account matters it ought not to have taken e.g taking into account that the respondent was a businessman and respectable member of society. He contends that this finding was not based on any evidence tendered by the parties. Further, he submits that the finding by the learned magistrate, that the utterances caused the respondent great humiliation and distress, was not founded on the evidence tendered.

Respondent’s submissions

12. On his part, the respondent submits that there were no contradictions, real or perceived, that could render the evidence of PW2 and PW3 unbelievable. As for the time, his submission is that PW3 reaffirmed that he was at Kasunguni at around 3. 30pm but did not say that the utterances were made at that time. He contends that answers in cross examination must be taken for what they are because they are in response to a question. He submits that in this particular case, the question must have been whether PW3 was at Kasunguni at 3. 30pm.

13. As for the whereabouts of the appellant on the material day, it is the respondent’s submission that the appellant could not account for the time between 8. 00am upto11. 00am. According to the respondent, it is more probable than not that the appellant was at Kasunguni at 8. 00am.

14. As for the damage to reputation, the respondents submits that the utterances, in the eyes of a right thinking person, meant and were intended to mean that the respondent is a murderer thus imputing that the respondent is a criminal. That where there is imputation of a crime, the slander is actionable perse without proof of damage.

Proceedings before the lower Court

15. PW1 was the respondent, a businessman at Kasunguni, Malili, Nairobi and Machakos Counties. He said that Josphat Kithembe Kyalo was a neighbour and Mason Mbatha was a relative. He testified that on 09/05/2014 he travelled from Nairobi to Kasunguni Market where Maweu, his brother, told him what the appellant had said i.e that the appellant was telling people at the market that he (respondent) had sent Mbatha to kill Kitili.

16. PW1 accompanied his brother to the appellant’s house who said that he had received the information from Mbatha. Since Mbatha was not present, PW1 told them that he would call him to discuss the issue. On 11/05/2014, there was a meeting of 8 people at the appellant’s house and the minutes were taken by the appellant’s brother, Kyallo. The notes dated 11/05/2014 were produced as PExh 1. At the meeting, the appellant said that it was Mbatha who had told him that the respondent had sent him (Mbatha) to kill Kitili. Mbatha denied ever telling the appellant such a thing.

17. Maweu told PW1 that the appellant had uttered those words on 07/05/2014. Kivindyo, PW1’s friend, told him that he was at the market on the material day and heard people saying that PW1 would kill Kitili.

18. On cross examination, he said that the appellant refused to apologize and clear his name. He agreed that he did not hear the appellant and Mbatha uttering the words as he was not at the market on the material day. He was told by Maweu that the utterances were made at Kasunguni Market near the stage at 8. 30am. That Maweu had heard the appellant telling the people at the stage that the respondent had sent Mbatha to Kill Kititli. That the people at the stage were many and Kivindyo was also present. That Maweu asked the appellant whether the utterances were true and he (appellant) replied in the affirmative. That the post mortem conducted on Kitili Kyalo showed that he died as a result of alcohol consumption. That the people of Kasunguni viewed him as a murderer.

19. PW2was Maweu John Muambi the respondent’s younger brother. He testified that on 07/05/2014 at 8. 00am, he was at Kasunguni market where he heard the appellant telling some people that the respondent had sent Mbatha to beat and kill Kitili. He went to where the appellant was as it was near his shop. He asked him whether the utterances were true and the appellant replied in the affirmative. PW2 did not know the people at the stage but the respondent’s friend Kivindyo was there.

20. On 09/05/2014, he told the respondent what had transpired at the market. That evening, he accompanied the respondent to the appellant’s home and the appellant admitted uttering the words but said he had heard them from Mbatha.

21. PW2 further testified that he was the chairman of the meeting that was held on 11/05/2014 at the appellant’s home. He reiterated PW1’s evidence on what happened at the meeting. He said that the respondent requested for an apology from the appellant and Mbatha but they did not apologize. They started blaming each other instead.

22. On cross examination, he said there was no bad blood between his family and that of the appellant. That on the material day he was at Kasunguni market and the appellant was near Gitonga’s shop. There were many people at the stage but he did not know them as they were travelling. It was around 8. 30am and the appellant was talking to 3 people. Mutuku Kivindyo was there but not standing with the 3 people. That the appellant made the utterances at a bus terminal.

23. PW3 was Alphonse Mutuku Kivindyo. He testified that he had known the respondent for over 10 years. On 07/05/2014 at around 8. 00am, he was at Kasunguni market and there were several people near the bus terminal next to Gitonga’s shop. He saw the appellant there who said that he had been told by Mbatha that the respondent had sent him (Mbatha) to beat and kill Kitili. He didn’t know the people that the appellant was talking to. PW2 was also there and he asked the appellant if the utterances were true. The appellant responded in the affirmative.

24. On cross examination, he said that on 07/05/2014, he was at Kasunguni market at around 3. 30pm. The appellant and other people were standing near the bus stage. He heard what Kithembe was saying and he was talking to several people. There were around 5 people there. He did not talk to PW2. The respondent is a good person and his perception had not changed since that day.

25. The respondent’s case was closed at that point.

26. DW1 was the appellant. He testified that on 07/05/2014 he was at home and had called fundis to construct his toilet which had collapsed. He told his wife to go to the market at 8. 30am and get cement. He forwarded some money to his wife who bought the cement and it was delivered by a boda boda at about 10. 00am. He stayed with the fundis until 8. 00pm

27. On 09/05/2014, no one visited his home but the respondent went to the home of DW1’s brother where DW1 was called. The respondent told him what Mbatha had said and DW1 denied knowledge of the same

28. On 11/05/2014, there was a meeting at his home and the minutes were as per the exhibit produced in Court. No one talked about Katili’s death. The respondent said that the appellant was evil and had beaten Katili. The appellant felt embarrassed by those utterances and because of that, his friends and villagers now see him as an evil person. Katili was his brother and a close friend of the respondent. On cross examination, he denied ever uttering the words complained about by the respondent. He could not ask for forgiveness for something he had not done.

29. DW2 was Sabina Nthenya Kithembe the appellant’s wife. She testified that she received money from the appellant at around 8. 00am, went to the market and bought cement which sent home via boda boda. When she went back home at 5. 30pm, she found the appellant and masons still there.

30. DW3 was Maithya Mutanili, a mason. He testified that on 07/05/2014, he was at the appellant’s home from 11. 00am to 5. 00pm and the appellant did not leave his home.

31. DW4 was Mason Mbatha Munyao a mechanic. He testified that on 07/05/2014, he was in Nairobi when his wife called and informed him that the respondent wanted him to go home. He went home where the respondent picked him and together with King’ola, Makau and Maweu, they went to the appellant’s home where they had a meeting. DW4 denied uttering the words complained about by the respondent. The only thing he said was that there appeared to be evil spirits at Mbuleli area because he almost killed Katili at that area.

32. On cross examination, he said that they went to the appellant’s home on 11/05/2014 and in the meeting, Muema and Kithembe gave their version of what happened. He did not hear the appellant saying that he (DW4) had been sent by the respondent to beat Katili. No one asked him if he had been sent to beat Katili.

33. DW5 was John King’ola Munyao a farmer. He said that Mbatha was not sent by the respondent to kill anyone. That on 02/05/2014 he was from a burial with the appellant and Mbatha and on reaching Mbulili area, Mbatha said that he had fought with Katili there and it’s like the area was possessed by evil spirits.

34. DW6 was Phylis Mwikali a farmer and the wife of Mbatha. The respondent and his wife had asked her if she was aware of what her husband had said. DW6 asked the respondent’s wife where she got the information and she responded that she heard it at the market. DW6 told the respondent’s wife that on the day or during the period that Katili died, her husband was not at home. DW6 called her husband who was in Nairobi and requested him to go home as he was needed by the respondent. Mbatha went home on 10/05/2014 and on 11/05/2014; Mbatha went to the appellant’s home for a meeting.

Duty of Court

35. It is now settled that the duty of a first appellate Court is to analyze and re-evaluate the evidence on record in order to reach it’s own conclusions bearing in mind that it did not have the benefit of seeing or hearing the witnesses.

36. I have looked at the record of appeal, the grounds of appeal and the rival submissions and will deal with each of the grounds separately.

Whether the necessary ingredients of defamation were established

37. Of the four ingredients highlighted by the appellant, he took issue with only two. The first one is that the respondent did not establish that the alleged defamatory statement was made by the appellant. He contends that he was not even at the market when the alleged defamatory statement was made.

38. PW2 and PW3 are the witnesses who heard the appellant making the utterances. They both testified that the utterances were made at Kasunguni Market at around 8. 00am. As for the alleged contradiction on time, PW3 stated as follows in cross examination;

“On 07/05/2014, I was at Kaunguni Market at around 3. 30pm. Kithembe and the other people were standing near the bus stage.”

39. I agree with the respondent that indeed, the witness did not say that he heard any utterances being made by the appellant at 3. 30pm. I do not see any contradiction.

40. The appellant also took issue with the evidence of PW2 and PW3 as to the number of people that were being addressed by the appellant. PW2 said they were 3 and PW3 said they were 5. However, it is clear from the evidence of PW2 that there were many people at the stage. It is therefore perfectly normal for two people to give different estimates.

41. The appellant also wondered how PW2 could have heard the utterances yet he testified that he was inside his shop. PW2 is also on record saying “… I went to where Kithembe was as it was near my shop”. This establishes that the utterances were made near his shop and as rightly submitted by the respondent there was no difficulty in hearing them.

42. In a nutshell, the evidence of PW2 and PW3 was corroborative. On the other hand, I agree with the learned trial magistrate that the evidence of DW1, 2 & 3 was contradictory and she indeed brought out the contradictions in her judgment. Accordingly, the appellant’s alibi was sufficiently dislodged and I am satisfied that the appellant was at Kasunguni market on the morning of 07/05/2014 and actually made the utterances.

43. To further illustrate that indeed the utterances were made at the market, DW6 had a conversation with the respondent’s wife who said she heard about the utterances at the market.

44. As to whether the utterances were defamatory, the appellant maintains that there was no proof of damage to reputation. According to the respondent, the utterances meant and were intended to mean that he is a murderer.

45. The utterances complained of were made in Kikamba and translated to English as follows;

“Mbatha Munyao told me that he was sent by Muema Muambi to beat and kill Katili Kyalo…”

46. I agree with the respondent that the plain meaning of the utterances in the eyes of a right thinking person is that the respondent is a murderer. As rightly submitted by the respondent and found by learned trial magistrate, where there is imputation of a crime, slander is actionable per se without proof of damage. The upshot is that the necessary ingredients of defamation were proved on a balance of probabilities.

The counter claim

47. The words complained of by the appellant were said in Kikamba and translated to;

“You are evil and I have evidence to show that you are the one who beat Katili Kyalo. I have tapped all phones and telephone lines of your family members and I can prove these allegations against you.”

48. When the appellant testified, he said that the utterances were made by the respondent at the meeting which was held at his home on 11/05/2014. That the utterances made his friends and villagers see him as an evil person. That his reputation had been destroyed and no amount of money could restore it.

49. On cross examination, he said that the respondent uttered the words outside his house after the meeting and his brother in law had visited them. He agreed that he never wrote a demand letter and did not report the respondent to the police.

50. The appellant did not call any witness to substantiate his claim yet there were people at the meeting and his brother in law was also present. Just like the learned trial magistrate, I also do not believe that his witnesses refused to testify because they had shunned him as a result of the utterances.

51. In fact, it is my considered view that the counter claim was an afterthought. Further, in light of the fact that the respondent had already established defamation on the part of the appellant, I think the respondent’s utterances would be justifiable. The learned magistrate did not err in dismissing the counter claim.

52. The appellant submitted that it was a grave error for the magistrate not to assess damages that would have been awarded if the counter claim had succeeded. I do not think so. Section 16A of the Defamation Act specifically talks about libel yet the respondent’s cause of action was slander. In any case, such an omission would not, on it’s own, be sufficient to allow the appeal

The award

53. The appellant wants this Court to interfere with the award of ksh 700,000/= because according to him, the trial Court took into account irrelevant matters. He says there was no proof that the respondent was respectable.

54. The respondent’s evidence of being a businessman was not controverted and if the evidence was anything to go by, he came across as a successful businessman. There was nothing on record to suggest that the respondent was not respectable. If the appellant had any such evidence, nothing would have been easier than to table it.

55. In my view, section 16A of the Defamation Act would offer good guidance on the damages payable. It provides as follows;

16A Award of damages

In any action for libel, the Court shall assess the amount of damages payable in such amount as it may deem just.

Provided that where the libel is in respect of an offence punishable by death, the amount assesses shall not be less than one million shilling and where the libel is in respect of an offence punishable by imprisonment for a term of not less than three years, the amount assessed shall not be less than four hundred thousand shillings.

56. In our case, the offence that the respondent would be charged with is murder which still attracts a death sentence despite Judicial Officers having discretion to give alternative sentences. The award of kshs 700,000/= was within an acceptable range and I see no reason to disturb it.

Conclusion

The court arrives at a conclusion that the appeal has no merit and court makes the following orders;

i.-Appeal is dismissed

ii. -costs to the respondent.

SIGNED, DATED AND DELIVERED THIS 31ST DAY OF MAY, 2019 IN OPEN COURT.

……………….……………………

HON. C. KARIUKI

JUDGE