[2014] KEHC 4185 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL CASE NUMBER 20 OF 2007

K L…………...............………………………………………….PLAINTIFF

VERSUS

THE STANDARD LIMITED……….…….......…………………….DEFENDANT

JUDGEMENT

Introduction

By a plaint dated 12th January, 2007 and filed in this court the same day, the plaintiff sued the defendant seeking an apology and retraction of the alleged defamatory material the subject of this suit, general damages, aggravated and/or exemplary damages costs and interests. There was also a prayer for any other remedy that this Honourable Court may deem fit to award.

According to the said plaint, the plaintiff herein, K L, also kwon as “K” was at all material times an entertainer and a practising advertising professional.

By a series of articles, the defendant, the publisher of a weekly magazine known as “pulse” published concerning the certain materials as hereunder.

It was the Plaintiff’s case that between 13th January 2006 and 15th December 2006, the Defendant through its reporters, officers, employees and/or agents published statements concerning the plaintiff which the plaintiff avers, were defamatory in nature.

On the 13th of January, 2006 the Defendants published an article titled “A E on M” at page 6 of the Pulse Magazine in which it was stated:

“K (K L) is an accomplished singer and actress. She surprised both friend and foe by walking away with Kora and Kisima awards last year……..

The singer who scooped the award for the “Most Promising Female Artist” in Africa with her song Muziki adds that she has seen it all in her tender 22 years as she ushers me into her expansively furnished flat in Riverside. Dressed in a black tank top and matching micro mini skirt, she settles comfortably into a couch as an unidentified guy who was in the house with her, sneaks out after exchanging pleasantries……….

Rumours have been circulating that K was involved intimately with a senior Kora bigwig and she says that they are all falsehoods.“I do not even know his second name and where the hell would I get him?” she asks. “All I know is that he lives in Benin”

So does the fair and comely singer have a boyfriend (my thoughts return to the unidentified man who made a quick getaway as I arrived). “I plead the Fifth Amendment” comes the swift reply….

Away from music, K has attracted controversy in other areas. She was recently quoted in a local magazine as saying that “A little girl-on-girl action doesn’t hurt anybody.” But now she claims that she was misquoted and that she is not a lesbian. “I was misquoted and it was a figment of that journalist’s imagination,” she says, “I’m straight.”

Three years ago K suffered the hardest trauma a woman can undergo; she was raped by an acquaintance when she passed out in his flat after she had gone drinking with him and other friends. Fighting back tears, K reveals that when the man raped her, she was on her menstrual period. As a result the rapist pushed her tampon deep inside her. “It was the worst day of my life and this guy has never apologized for his actions,” she explains. “I have never gotten over it and I’m still waiting to get over it. K is still undergoing counselling but has never reported the matter to the police. She, however, advised other date rape victims not to bury their head in the sand and seek help from authorities.”

It was the plaintiff’s case that along with the article was a photograph of the Plaintiff holding one of her awards and a caption against the said picture that read:

“Fighting back tears, K reveals that when the man raped her, she was on her menstrual period. As a result the rapist pushed her tampon deep inside her.”

To the Plaintiff, the said publication insinuated that the plaintiff was involved in some illicit/clandestine activity in her apartment with an “unidentified person” who had to escape from her apartment when the interview between her and the Defendants took place, and that the Plaintiff confided very personal details in the reporter about her rape incident. Further, it was also implied that the plaintiff is an individual who speaks freely about her personal and public life all in a dishonest attempt to gain publicity. To the plaintiff the statement was meant that no one expected the Plaintiff to receive this award and the impression created was that her involvement with a Kora official meant that she was undeserving of the award.

On the 10th of November 2006 the Defendants published another article titled “Rumour has it” in the pulse magazine at page 13. An excerpt of this article read as follows:

“It appears that the Lesbians and Gays Society of Kenya is organizing secret meeting at posh hotels and inviting their counterparts from other countries. Our sources reveal that a meeting was held in a secluded hotel in Nairobi hill area in April, which was attended by both closet and openly gay people.

In other gay news, a certain beautiful celeb is currently hooked up with a politician’s daughter. The latter is the elder sister to a former beauty queen and the former is a controversial figure in the music industry, who loves to shock. Smells like a publicity stunt. Also another alleged lesbian radio presenter – has been touring Europe’s cities on a fully paid trip from the said lesbians and gays society kitty. We are shocked beyond belief. Yawn.”

According to the plaintiff the said article meant that the plaintiff is a lesbian and/or bisexual woman, who has been dishonestly seeking publicity by either being, or claiming to be a lesbian or bisexual woman involved with a politician’s daughter.

On the 17th of November 2006 the Defendants published another article titled “K O S W” in the pulse magazine at page 3 which read as follows:

“The Smitta was at Carni 4 the “Eviction Bash” of whatever short lived star was gonna get their ass chucked from the proggie…The usual star suspects were there – Shaffie who is connected in the industry like electricity, Big Kev who looked every bit like the Emir-ski in da house, the hot and upcoming papski called Emma Murbin and K L, lookin’ real good. Tuff titty, boys, cos I hear she’s given guys a chill pill to try her lucksi with the ladies. Former beauty queen, who is a top politico’s dot-e is said to be in the mix……..

It was the Plaintiff’s case that along with the article was a photograph of the plaintiff singing, superimposed on another photograph appeared the caption “Kaz and Shaffie.” In the plaintiff’s view, the said publication meant that the Plaintiff no longer dates men but is instead a lesbian who is intimately involved with a top politician’s daughter.

On the 15th of December 2006 the Defendants published another article titled “The P A” in the pulse magazine at page 8 in which there was an excerpt titled D Q of the Year – K which read as follows:

“Ever since her stint at the South African Project Fame, K has given controversy a deeper meaning. After infamously voting our fellow Kenyan Didge, she returned to Kenya to shock us all with her tendency to speak openly about her personal life. She has hinted about being bisexual and although these may all be publicity stunts, it just ain’t right. We’re still Africans, y’know?

Together with the said article was the Plaintiff’s photograph and to the Plaintiff, the said article created the impression that the Plaintiff speaks freely about her personal life to all and sundry; claims to be a bisexual woman, and that both the tendency to speak about her personal life and bisexuality are a dishonest attempt to gain publicity.

It is the Plaintiff’s case that the aforementioned publications were false, baseless and were published maliciously and were defamatory of the Plaintiff to the extent that they mean or were understood to mean that the Plaintiff is a lesbian, and/or the Plaintiff is a bisexual woman and/or the Plaintiff is sexually involved with a politician’s daughter and a model and/or the Plaintiff dishonestly seeks publicity by alleging that she is a lesbian and bisexual woman.

While denying having confided in details on the rape incident with the reporter as reported or at all, she asserted that the details on the rape incident were deliberately inserted in the pulse article of 13th January 2006 completely out of context and without the Plaintiff’s knowledge or consent prior or subsequent to the publication.

The Plaintiff denied being engaged in the questionable illicit and/or clandestine activities insinuated in the said article. She further denied being lesbian, bisexual or sexually involved with any politician’s daughter or mode or that she was dishonestly seeking publicity by alleging that she is a lesbian and bisexual woman. The Plaintiff also denied attending the “Eviction Bash” referred to in the article of 11th of November, 2006 and added that the image published with the said article was a file photo which had no relation to the event. She categorically denied having disclosed to the Defendant or any of its agents any details about her sexuality.

In the Plaintiff’s view, the manner and publication of the rape incident was a malicious effort to ridicule the Plaintiff and capitalize on and sensationalize matters which were not discussed in the interview and that the mere fact that the Defendants published the article on her rape incident together with a photograph of her smiling broadly and holding one of her awards confirms this malicious effort. The repetition of the statement that the Plaintiff is a lesbian and/or bisexual woman who is sexually involved with the daughter of a politician and a model, it was pleaded, are meant to discredit the Plaintiff and give credence to the allegations of lesbianism and bisexuality by suggesting that she has a known sexual partner who is a prominent person. To her the Defendant’s sensationalisation of the said conduct may be considered as illegal under Section 162 and 163 of the provisions of the Penal Code (Chapter 63 laws) which is punishable as a felony with a penalty of imprisonment for fourteen years and seven years respectively.

The Plaintiff asserted that she is an upstanding citizen with a long and reputable career as an entertainer, advertising professional and active participant in the campaign against violence on women and that her success, effectiveness and standing in those roles are greatly dependent on the perception of the persons with whom she comes into contact hence the said publications were calculated to discredit the Plaintiff in the minds of the public and to disparage and injure her reputation. As a result her reputation has been seriously damaged and she has suffered and continues to suffer discredit and a negative public image from her colleagues, clients and supporters of the anti-violence against women campaign particularly because the pulse magazine is and continues to be marketed as a leading magazine on entertainment published in the country and worldwide through the world wide web. Further she suffers and continues to suffer extreme embarrassment, discomfort and distress as a result of the loss of reputation and the risk of criminal prosecution or investigation.

The Plaintiff pleaded that the Defendant was aware that the Plaintiff was an entertainer with a relatively high profile and also knew or ought to have known that the Plaintiff is a participant in the campaign on violence on women and advertising professional. She averred that the Defendant is aware that the she was a victim of rape and had in very specific circumstances related to the cause against violence on women. By falsely claiming that the Plaintiff had shared the rape incident for the purpose of sensationalism, she contended, the Defendants exercised wanton recklessness and was irresponsible in making publications which contained numerous falsehoods and inaccuracies while well aware of the deep trauma it occasioned her in the circumstances.

The Plaintiff further pleaded that the Defendants consciously malicious and repeatedly made publications relating to the Plaintiff’s sexuality yet these allegations had no foundation and the same was done in a deliberate effort to maximize profits through sensational reporting while lowering the Plaintiff in the estimation of members of the society. According to the Plaintiff when the Defendants deliberately reported that the Plaintiff has a tendency to disclose personal details of her life so as to seek publicity, they did this with wanton recklessness as to the Plaintiff’s cause against gender based violence, as an entertainer and as an advertising professional.

Despite being called upon to substantiate or publish an apology for the said publications by the Plaintiff, it was averred the Defendant failed and or refused to do so but maintained that the statements against the Plaintiff were indeed factual.

In her evidence, the plaintiff who testified as PW1 stated that she is a singer/musician by profession s well as an actress and events co-ordinator. She stated that in 2004 she also represented Kenya in a reality show called Project Fame in South Africa which event was meant to pick African singers amongst African singers for the grand prize. According to her there were millions of TV viewers from around the World and the contestants were eliminated by public votes and the winner chosen by the same method. In the said contest the plaintiff was in the top ten out of the 18 contestants and was the last Kenyan to be voted out.

When she returned to Kenya she published her first album called Samin which won EA Kisima award and All African Kora Award. She also acted in a movie called “Rasta” and is involved in a lot of charity work such as a concert for the benefit of Nairobi Women’s Hospital and a walk for Kenya Breast Health Programme.

While reiterating her pleadings, the plaintiff denied that there was a man in her house during the interview. According to her the articles published by the Defendant intimated that she was a lesbian and was bi-sexual and that she was intimately involved with a daughter of a politician all allegations which were untrue. Therefore she contended that the allegation that she made the revelations as a public stunt were similarly untrue. On the issue of the rape, she testified that she did not discuss the incident with the journalist. According to her the said allegations were made to ruin her name and to increase the Newspaper’s profits since the said publications came after she had received the aforesaid awards.

After the said publications, the plaintiff averred that her life was affected and the same also affected her health as well as her career since as a public figure people would have given her work. For example although she had been billed to perform at a concert at Ngong Racecourse by a Company known as Brookside Thika, the work was not given to her due to her reputation. Following the said publication, the plaintiff had to see a therapist at Amani Counselling Centre. As a result of the said publications, the plaintiff lost a lot of her friends. Accordingly she instructed a lawyer to write to the Defendant who maintained that the publications were factual and were made without malice, a contention the Defendant maintained in their defence.

While acceding to the fact that she was a victim of rape, the plaintiff denied having discussed the same during the interview since the incident was hard on her and she did not want to discuss the same.

After the said publication, the plaintiff averred that her career did not blossom as it should have done which development she attributed to the publication of the subject articles. She therefore sought compensation.

In cross-examination by Ms Nungo, the plaintiff averred that as a prior to the interview, 13th January, 2006, she was called by C O for an interview and she accepted the same and it was agreed that the interview would be in her house and would be published. On the day of the interview, the said Mr Otieno went with two other gentlemen one of whom was a photographer while the other one was taking notes. While admitting that she was asked questions about her personal life, she said that some of the issued were denied by her. While admitting that some of the items published were correct while others were positive comments, she averred that she was offended by the allegation that she was involved by another man and that she was a lesbian. She however confirmed that she was raped. While admitting that the article contained many details, she maintained that she did not want to talk about the incident. She also admitted that she had given an interview in the Cosmopolitan with some women who had been sexually abused in order to create awareness.

The plaintiff conceded that as a celebrity, she was an outgoing person who was mostly confident and outspoken. However, before the interview, the plaintiff testified she had not given any public statement in respect of her sexual orientation. According to her the article targeted an audience of between 15 to 30 years of age. She said that none of the people in the entertainment circles made any negative comments about her though she maintained that the article ruined her reputation since there were offensive writing which damaged her reputation. She however admitted that she had no evidence to prove that the publications were made to boost the Defendant’s profits. To her image is a big part of her career. She admitted that she had not produced anything to show that she underwent counselling. She however admitted that if someone confessed that she had been raped, she would not consider such a person a lesser person either professionally or personally.

In re-examination, the plaintiff was of the view that if someone confides about an incident of rape it would not be appropriate to discuss the same with another person. She was however adamant that she did not confide in Charles Otieno as regards her incident in the said interview. She reiterated that the publication disclosed her sexual orientation and the pulse Magazine targets youth readers.

The second witness for the plaintiff was E K M who testified as PW2. According to him he was the Assistant IT Manager at Nairobi International School. He knew the plaintiff since childhood as they grew up together in Kileleshwa.

On 17th November, 2006 he was reading the Standard Newspaper when he came across an Article by one Smitta which mentioned the plaintiff. He confirmed that this was the same article appearing in the plaintiff’s bundle at page 6. According to him he understood the said article to mean that the plaintiff had put boys aside and had gone lesbian and was involved with a top politician’s daughter which news were new to him. According to him the article was written in slang. He then called the plaintiff who said it was just the media looking for a story.

In cross examination, the witness said they had remained close friends with the plaintiff todate though he nolonger saw her as frequently as before. He confirmed that he was well acquainted with the plaintiff’s personal life and was aware of the plaintiff’s explicit photos which appeared in the internet but was not aware that the plaintiff was a lesbian and would go by the plaintiff’s word. The witness however did not think that he nolonger wanted to associate with the plaintiff as a result of the article.

The third witness for the plaintiff was P K Nwho testified as PW3.

According to him, he was running an insurance company known as [particulars withheld] Health East Africa Ltd and was also managing a record label company known as[particulars withheld] Records which produces, markets and distributes music in form of MP3, CDs and compact discs. They also manage artistes. He admitted that the plaintiff was known to him since she was 15 years and they have worked together in the music industry since 2003/2004 and he has been involved in managing, distributing and holding concerts for her by promoting her music in return for sharing the profits. Therefore when an artiste’s reputation is bad it affects their business hence for the concert that the witness held for the plaintiff he lost money. According to him the plaintiff was known in the music industry and had won an African Award called KORA as well as a KISIMA award. While the latter is a Kenyan Award, the former is an African award and the plaintiff won to represent East Africa.

According to the witness as a result of the plaintiff’s reputation caused by the publications in PULSE and another by one Smitta, he lost Kshs 498,000/=. He confirmed that the publication he referred to was the one at page 1 of the plaintiff’s bundle dated 17th November, 2006 titled “K O S W” and “A E o M”. When he raised the issue of the publications with the plaintiff, the plaintiff was distraught and denied the inference made in the said articles.

In cross examination, PW3 reiterated that before the publication the plaintiff had just won KORA award and had been in Project Fame a show all over Africa hence she had built a pretty good reputation as a musician and as a clean artiste. While admitting the Project Fame show has controversy regarding music he died that it has personal controversy. He confirmed that if people viewed the plaintiff as negative they would neither attend her shows nor buy her music. He however admitted that there was a point when the plaintiff had explicit photos of her in the internet and he agreed that the photos must have been taken with the plaintiff’s knowledge. He however maintained that if someone took private photos of a person and releases them to the internet that would not be evidence of uncleanliness unless the same is released by the person taken. According to him he manages some artistes who have been leaked on the internet but who still make a lot of money. According to him in the music which they promote sexual controversy does not sell. He confirmed that the article he referred to as “A E on M” was published on January 13, 2005. Asked whether it was the same article which affected the concert in 2007, the witness said that the same article was being discussed in the streets even by the time he was giving evidence. He however admitted that he had no empirical proof that the article impacted on the sales of the ticket and that he did not bring the tickets and posters to court. He further admitted that he had nothing to show the level of earlier sales.

In re-examination, the witness said that the issue of the plaintiff’s photos in the internet did not impact on the sales of the tickets. According to him, he knew the said photos were not published in the internet by the plaintiff. According to him, the information that people were absconding partly came from his agents and partly from the people directly to him.

It was submitted on behalf of the plaintiff that for a defendant to be tortuously liable in a suit for defamation, the plaintiff must prove on a balance of probability that the matter complained of was defamatory, referred to him/her, was intentionally recklessly or negligently published of and concerning him/her; was so published by the Defendant and was so published without lawful justification on an unprivileged occasion. Authority for this submission was cited as J Kudwoli vs. Eureka Educational and Training Consultants & 2 Others)

The Plaintiff further submitted it is not in dispute that the articles were published by the Defendant and made reference to the Plaintiff. The Plaintiff submitted that a defamatory statement is one that causes an adverse effect on somebody’s reputation and that the courts have set down the parameters in regards to what amounts to defamation and these are: whether the imputation would have a tendency to lower or adversely affect a person’s reputation in the estimation of right thinking people generally; whether the imputation would expose a person to hatred, contempt or ridicule; whether the imputation would cause a person to be shunned or avoided and finally whether the imputation would injure a person’s reputation in the conduct of his trade or business or professional activity. To the Plaintiff’s an imputation may be defamatory whether or not it is believed by those to whom it is published.

It was submitted that the law on defamation (libel and slander) is contained in both common law and in statute through the Defamation Act. Apart from that section 194 of the Penal Codeprovides that:

“Any person who by print…unlawfully publishes any defamatory matter concerning another person with intent to defame that other person is guilty of the misdemeanour termed libel,”

Further section 195 goes ahead to define what defamatory matter is and provides that it is matter likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule or likely to damage any person in his profession or trade by any injury to his reputation.

According to the plaintiff the words indicated in the three articles as highlighted earlier and as read together lowered and adversely affected the Plaintiff’s reputation in the estimation of right thinking people in society. This position, according to the plaintiff was supported by the evidence of her two witnesses namely PW2 and PW3 who testified that they were able to decipher that the articles that they read referred to the Plaintiff and that the content affected their thinking on the Plaintiff’s reputation. The Plaintiff further submitted that the said witnesses also testified that the reading of the articles led them to believe that the Plaintiff was a lesbian and urged the court to take judicial notice of the fact that gays and lesbians are shunned in the Kenyan traditional society and the act of homosexuality is criminalised under the Penal Code. To her the testimonies of the said witnesses indicated that the publications caused the Plaintiff to be shunned and avoided and her reputation in the conduct of her trade, business and profession was grossly affected.

It was contended that where a person publishes a defamatory imputation, the law presumes malice or that legal malice is proved by the publication of the defamatory words and as a tort of strict liability the intention of the defamer is irrelevant. In this case, the Defendant published the four articles with no honest belief in the truth of the statements, with reckless indifference to its truth or falsity and with an improper motive.

The Plaintiff submitted that the manner and publication of the rape incident, which was never discussed with the Defendant’s reporter at any time, together with a bold caption that read: “Fighting back tears, K reveals that when the man raped her, she was on her menstrual period...as a result the rapist pushed her tampon deep inside her,” next to a photograph of the Plaintiff smiling broadly and holding one of her awards was a malicious effort to ridicule the Plaintiff and capitalize on and sensationalize matters which were not the subject of any discussion between the Plaintiff and the Defendant. It was the Plaintiff’s submissions that the repetition and sensationalising of allegations that she is lesbian and/or bisexual and/or a person seeking publicity are malicious attempts by the Defendant to discredit the Plaintiff by imputation of conduct with is criminalised and punishable under the Penal Code.

As regards the defence of qualified privilege, the Plaintiff submitted that Section 7 of the Defamation Act which provides for the defence of qualified privilege does not apply because the defamatory issues raised in this suit are not captured under the said section. The Plaintiff further submitted that the Defendant was offered an opportunity to make an apology and publish a right of reply.

With respect to the defence of fair comment, it is the Plaintiff’s submission that this defence is not available to the Plaintiff because the matters complained of as being defamatory by the Plaintiff are not matters of public interest, while with respect to the defence of justification, the Plaintiff submitted that whereas this defence is limited to the article of Friday the 13th of January, 2006 because it emanated from a one on one interview with the Plaintiff and the Defendants, that the defence is not available for the remaining three articles/publications. Further there was no truth in the publication of the 13th of January, 2006 because she denied giving details about the rape incident and the Defendants did not produce any evidentiary material to prove that the Plaintiff did indeed disclose details about her rape incident. The Plaintiff submits that the court should take note that the writers of the other three publications did not testify and as such the Defendant has failed to prove any of the defences.

On the reliefs sought, the Plaintiff justified the claim for an apology in view of the provisions of Section 7A of the Defamation Act hence this court do order that the Defendants make an unequivocal apology drafted and published in terms agreeable to the Plaintiff in relation to the four articles.

In assessing the damages payable to the Plaintiff on the other hand the court was urged to consider the professional and personal history of the Plaintiff and the effect the defamatory works had on her professional life and personal life are clear in view of the testimonies of PW2 and PW3. The court therefore should consider the provisions of Section 16A of the Defamation Act and the malice on the part of the Defendant and award the Plaintiff Kshs. 5,000,000 in general damages.

According to the plaintiff, despite demand and intention to sue the Defendant completely refused to publish an apology and instead pleaded truth and justification hence she submitted that she had made out a good case for the award of aggravated damages and sought Kshs. 2,000,000 and relied on the cases set out in the written submissions filed herein.

Defendant’s Case

The Defendants admitted that the published articles were an express reproduction of the publications complained of but alleged that the Plaintiff only reproduced excerpts of the four articles and as such the contextual flow required to give the full meaning and effect of the subject publications was lacking. According to the Defendant the article published on the 10th of November, 2006 was captured in a rumour section which does not refer to the Plaintiff. It is the Defendants case that the Plaintiff’s reference to the article published on the 17th of November 2006 which was titled “K o S W” is bad in law for want of interpretation of this publication in the official court language and as such the full meaning and effect of this publication was not deciphered.

The Defendants denied that the aforementioned publications each on its own and as read together are defamatory of the Plaintiff in the manner pleaded by the plaintiff hence the pleaded claims were ill founded.

The Defendant averred that the publications complained of by the Plaintiff were made on a privileged occasion and that it would rely on the defence of qualified privilege under the Defamation Act Chapter 36 Laws of Kenya. It was further pleaded that the publications complained of were fair comment made in good faith and without malice upon a matter of greater public interest. To the Defendant, the alleged publications were true in substance in so far as they consisted of an accurate report as obtained from the Plaintiff and that they were published by the Defendant innocently and accurately without malice or gross negligence and that it exercised all reasonable care in relation to the said publications.

The Defendant denied that it reported that the Plaintiff was undeserving of the KORA award and averred that the publications complained of with regard to the article of the 13th of January, 2006 were an accurate report of the interview the reporter held with the Plaintiff. The Defendant further stated that the Plaintiff confided on the rape incident and the subject report was within context and was based on the interview between the reporter and the Plaintiff and asserted that the Plaintiff was conscious and alert at all material times during the interview and as such she voluntarily consented to the publication thereon. It was the Defendant’s case that the publication referred to did not in any manner whatsoever insinuate the Plaintiff’s involvement in illegal or clandestine activities as alleged at all. Neither did it portray that the Plaintiff is a lesbian, bisexual or that the Plaintiff is involved with a politician’s daughter or model. According to the Defendant, the article titled “K O S W” did not state that the Plaintiff attended the eviction bash referred to. The Defendant also denied that it was malicious in its publications and put the Plaintiff to strict proof.

According to the Defendant the publications complained of were made after a careful objective professional assessment and within the Defendant’s ordinary course of business. It added that the publications were in the public domain because the contents of the said articles were a true and fair comment of the statements either made or admitted by the Plaintiff to the Defendant’s officer, agent or employee. To the Defendant, its professional and legal duty as a media institution is to collect, publish and distribute to the public information and or occurrences of matters of public interest and as such the publications were made within the confines of the law.

It was the Defendant’s case that the Plaintiff did not suffer any damage whatsoever as a consequence of the subject publications but if the Plaintiff suffered any damage as a result of the said publications then the Defendant distanced itself totally from liability towards the same.

The Defendant denied that the said publications were calculated to discredit the Plaintiff in the minds of the public and to disparage and injure her reputation. Further it was denied that the Plaintiff suffers and continues to suffer extreme embarrassment, discomfort and distress as a result of the loss of reputation and the risk of criminal prosecution or investigation and the Plaintiff was put to strict proof thereof.

Consequently, the Defendant denied that the Plaintiff is entitled to the reliefs sought.

The Defendant Called Charles Otieno Omondi as DW1.

While adopting the contents of his statement filed in this case and dated 17th April, 2012, DW1 testified that he was a professional journalist with Standard Group and he was also known as the CEO. According to him he had been an editor for six years and at the time of giving evidence he was a Senior Editor in charge of all the magazines and KTN as well.

He confirmed that he knew the plaintiff for many years having interacted with her in the interviews from the time she started singing till she went into productions. In the year 2005 he had an interview with the plaintiff. As part of his evidence in chief the witness adopted his statement filed in this case and dated 17th April, 2012.

He testified that he knew the plaintiff prior to joining the media in the early 1990’s. In early 2004/2005, the plaintiff and one Dirge participated in Project Fame, the South African version which elicited a lot of reaction from the public. The witness then went to the plaintiff’s house in the company of one Mwangi. According to him, the plaintiff never shied from controversy. They wanted the plaintiff to set the record straight on issues relating to Project Fame and her preference on dating. According to him the plaintiff confirmed that she does not mind girls as well.

According to the witness, on the issue of rape they could not have been creative enough to come up with such an allegation. He stated that the interview was “no holds barred’ for the public and was not for personal consumption. According to him, the contents of his statement are what the plaintiff told him in the said interview. He confirmed that he did interview the plaintiff with respect to the plaintiff’s sexual orientation based on previous interactions and her response was that she was misquoted and that she was not lesbian. The witness said that he recorded what the plaintiff stated even when it went contrary to what was believed. According to him with respect to the article “Rumour has it” in Pulse magazine for 10th November, 2006, the plaintiff’s me whether actual or the stage name “K” was not mentioned.

Referred to the article dated 17th November, 2006 headed “K O S W” DW1 stated that the same was written by one of his writers named T M a.k.a S S. With respect to the article on page 8 of the bundle dated 15th December, 2006 titled “D Q of the Y” he said this was a repetition of the allegation of bisexual conduct while the article on page 11 of the bundle, the magazine of 9th February 2007 was a fair comment on what the other celebrities think of others and was with respect to many celebrities and not just the plaintiff and that those were honest views made by other people on the celebrity and were not his own. According to him, neither him nor the defendant had any personal dispute or vendetta against the plaintiff. He said that he recalled one time recommending the plaintiff to be put on TV audition as a result of which the plaintiff landed the job and that he had never had anything personal against the plaintiff.

According to the witness in celebrity world artists go out and look for opportunities in order to be relevant to fans and in the case of the plaintiff she had courted controversy in social careen doing things which courted controversy by her dressing and action. According to him the photos which were published were the plaintiff’s photos and the articles were in the nature of the plaintiff’s behaviour in social circles

In cross examination, the witness said that Pulse is a celebrity magazine for anybody involved in entertainment and it writes about people involved in entertainment. He admitted that at the material time he was the editor. He however denied that the stories which sell are the ones which get published and asserted that they publish stories based on relevance, time frame and if it is something that attracts the public attention. According to him, they publish magazines which would be purchased and admitted that it has to be interesting to the public. He conceded that a celebrity’s sex orientation is one of the things that wold be interesting to the public. He however admitted that the plaintiff informed him that she was not a lesbian and girl and girl relationship is not necessarily lesbianism. In hi view the phrase can either be lipstick or lesbianism. He admitted that applying lipstick can be girl on girl or even sexual orientation or connotation. Referred to his statement, he confirmed that it stated that the plaintiff told them that she preferred girls to boys. However there was nothing in the article that the plaintiff preferred girls to boys.

He admitted being aware that a demand was made by the plaintiff’s advocates and he responded that what was contained in the article was factually based on the interview. According to him the intention to publish the article was due to the controversy that the plaintiff courted and the interview was held at the plaintiff’s house in the company of his photographer. The same was recorded in a notebook which he however admitted having not produced. According to him, the plaintiff ushered them in to her house in Chiromo area and took them around the house. Though he went to the kitchen he did not go to the bedroom. According to him, the dining area was in the sitting room and the plaintiff was alone and he could not recall anyone coming in during the interview or if there was anybody in the house.

Asked about the rape incident, he said that he was unaware whether the same had been published in another magazine – the Cosmopolitan. Referred to the article at page 6 by T M he admitted that in the said article, it was stated that the plaintiff was a lesbian and that her partner was a top politician. He admitted saying that a girl was intimately involved with a politician and at page 8 that she was bisexual. He however denied that they proceeded to publish the story despite receiving information that the plaintiff was not a lesbian for monetary gain. He however admitted that when the demand was made they said that they were justified by the truth that she was bisexual. He however denied that they placed the material to make out a story that the plaintiff was bisexual.

While admitting that he went for the interview with a photographer, the photos which were taken did no appear in the article of 13th January, 2005. He however admitted that he as aware that the plaintiff was awarded a KORA award and a KISIMA award. According to the witness he played a role in the plaintiff’s employment with Amaya Group after the interview process. He however admitted that he was not an employee of Amaya and he did not have anything to show that he influenced the plaintiff’s employment with the said Group.

Referred to the Article dated 13th January, 2006, he said that the said article referred to intimate involvement with KORA bigwigs. However the plaintiff’s response was that she did not know his name which according to DW1 was not a denial of the said involvement. According to him the message he was putting across was that the plaintiff denied it. According to him, although the interview was a no-hold-barred interview the plaintiff denied the controversies surrounding her though DW1 denied that this denial was a disappointment to him.

In re-examination DW1 stated that he asked the plaintiff whether she was a lesbian, whether she was in intimate relationship with KORA bigwigs and published the reaction. According to him there are many politicians with many daughters and there are many celebrities in the music industry. However the article at page 4 did not mention the plaintiff either expressly or by implication. He however denied having seen the article on rape.

Determinations

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

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

Whether the words, in their natural and ordinary meaning, are true in substance, in fact and were fair comment on matters of public interest.

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

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

Whether the plaintiff is entitled to damages.

Who should bear the costs of the suit.

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

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

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

The elements of the tort of defamation are that the words must be defamatory in that they must tend to lower the plaintiff’s reputation in the estimation of right-minded persons, or must tend to cause him to be shunned or avoided. Whereas mere abusive words may not be defamatory, the speaker of the words must take the risk of his audience construing them as defamatory and not simply abusive, and the burden of proof is upon him to show that a reasonable man would not have understood them in the former sense. However, in libel the words cannot be protected as mere abuse since it is presumed that the defendant had time for reflection before he wrote them. Secondly, the words must refer to the plaintiff.Thirdly, the words must be malicious. Malice here does not necessarily mean spite or ill-will but recklessness itself may be evidence of malice. Evidence of malice may be found in the publication itself if the language used is utterly beyond or disproportionate to the facts. That may lead to an inference of malice but the law does not weigh in a hair balance and it does not follow merely because the words are excessive, there is therefore malice. Malice may also be inferred from the relations between the parties before or after publication or in the conduct of the defendant in the course of the proceedings. Malice can be founded in the publication itself. The language used is utterly beyond the facts. The failure to inquire is into the facts is a fact from which inference of malice may properly be drawn. Any evidence, which shows that the defendant knows the statement, was false or did not care whether it be true or false will be evidence of malice. See Godwin Wachira vs. Okoth [1977] KLR 24; J P Machira vs. Wangethi Mangi(supra).

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

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

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

We now come back to the issues in this case. The first issue is whether the publication bore the meaning attributed to them in the plaint. With respect to the article which appeared on 13th January, 2006, it is clear that there was no evidence that when DW1 went to the plaintiff’s house there was a man in the house as DW1 could not recall seeing any man in the house. However, in my view whereas that statement was false, I do not think that such a false statement can be termed as defamatory of the plaintiff since there was no imputation of immorality on the part of the plaintiff by the mere mention that a man was in the house who sneaked out after exchanging pleasantries. As stated hereinabove, defamation is not about publication of falsehoods against a person hence it is necessary to show that the published falsehood disparaged the reputation of the plaintiff or tended to lower the person in the estimation of right thinking members of society generally. Therefore an injurious falsehood may not necessarily be an attack on the plaintiff’s reputation.

With respect to the unfortunate incident of rape, I similarly find that the mere fact that the incident may not have come from the plaintiff was not defamatory since the incident was not disputed and the plaintiff herself admitted that she had given an interview in the Cosmopolitan with some women who had been sexually abused in order to create awareness. Such a bold move in my view is laudable and is a manifestation of a person’s strength rather than a weakness. It is my finding that the meaning attached to that incident that it implied that the plaintiff is an individual who speaks freely about her personal and public life all in a dishonest attempt to gain publicity is rather far fetched. Whereas the publication of the incident may have been insensitive to the plaintiff’s plight and may have, if the plaintiff as a result thereof suffered injury, justified an award in respect of injurious falsehood, I do not find that that alone justifies a finding of defamation. However, in the same article the author stated that the plaintiff surprised both friend and foe by walking away with Kora and Kisima awards and that rumours had it that the plaintiff was involved intimately with a senior Kora bigwig. Read together it is my view that any reasonable person would conclude that the plaintiff’s achievement had something to do with her intimacy with the so called bigwig in Kora. This is so because whereas mere abusive words may not be defamatory, the speaker of the words must take the risk of his audience construing them as defamatory and not simply abusive, and the burden of proof is upon him to show that a reasonable man would not have understood them in the former sense. That intimation in my view was on the face of it defamatory of the plaintiff.

With respect to the article of 10th November, 2006, it is my view that read alone, it would have been a long shot for one to conclude that the said article referred to the plaintiff. However in the article appearing on [particulars withheld] November 2006, reference was expressly made to the plaintiff who was said to have “given guys a chill pill to try her lucksi with the ladies. Former beauty queen, who is a top politico’s dot-e, is said to be in the mix.”In the article of 10th November, 2006 it was stated that “in other gay news, a certain beauty celeb is currently hooked up with a politician’s daughter. The latter is the elder sister to a former beauty queen and the former is a controversial figure in the music industry, who loves to shock.” In my view a reasonable person reading these two articles would reasonably conclude that the person who was being referred to was the plaintiff. In Onama vs. Uganda Argus Ltd [1969] EA 92, the East African Court of Appeal expressed itself as follows:

“In deciding whether the words are defamatory, the test is what the words could reasonably be regarded as meaning, not only to the general public, but also to all those “who have a greater or special knowledge of the subject matter”. In deciding the question of identity, the proper test is whether reasonable people who knew the appellant would be led to the conclusion that the report referred to him. The fact that an individual believed the report to relate to the appellant could not, of itself, be decisive. The test is whether, in the opinion of the court “a substantial number of persons who knew the plaintiff, reading the article” would believe it related to him. Evidence of such persons is admissible and the judge will give it such weight as he thinks fit, but it is for the court to decide whether the words complained of would lead reasonable people to conclude that they point to the appellant….Such witnesses may be people with a knowledge of the surrounding circumstances, but that must mean a knowledge of the facts. In the court’s view previous public talk cannot be used to identify an unnamed person in a possibly defamatory statement, unless, of course, the statement itself refers to such talk. If, however, the second report is not, in law, “having regard to its language” capable of referring to the appellant, it is immaterial whether in fact the appellant’s friends and acquaintances would have read it as referring to him and for the reasons given the appeal would be dismissed….The fact that the earlier publication was privileged on the occasion of its publication would not protect a subsequent repetition or adoption of the defamatory statement. The privileged publication would only be used as evidence, as part of the proof of the subsequent publication and not as a basis of the action for libel…There was clear evidence that the libel did apply to the appellant and indeed after reading both articles there is no doubt that this must be the meaning necessarily placed on these words by any reasonable person who had previously read the earlier report. The question for consideration is whether you think the libel designates the plaintiff in such a way as to let those who knew him understand that he was the person meant. It is not necessary that all the world should understand the libel; it is sufficient if those who know the plaintiff can make out that he is the person meant…No reasonable person reading both reports which were given great publicity in the press could fail to understand that the appellant was one of the persons referred to as “certain individuals” mentioned in the second report. It being conceded that the second report is libellous of “certain individuals” the appeal would be allowed.”

A reading of the two articles together leads me to the inescapable conclusion that the same referred to the plaintiff. It does not require evidence in the Kenyan society to prove that the tag “gay” is still frowned upon by a majority of Kenyans. That the plaintiff was referred to as bisexual is clear in the article of 15th December, 2006, in which it was expressly stated that the plaintiff had hinted about being bisexual. Just like in Machira’s Case (supra) it does not require evidence to prove that a person would be hurt in his reputation and be brought into public scandal, odium and contempt in the estimation of right thinking members of society if allegations were made that one was gay or a lesbian and got intimate with authorities to secure otherwise undeserved favours. Accordingly, I agree that the meaning attributed to the publication as found hereinabove fits the bill.

Whereas DW1 testified that his article was based in the interview he had with the plaintiff, no evidence was led as to the source of the information published by Tony Mochama otherwise known as Smitter Smitten whose articles were prima facie defamatory.

That leads me to the third issue whether the words, in their natural and ordinary meaning, are true in substance, in fact and were fair comment on matters of public interest, for the defence of fair comment to succeed it must be proved that the facts are correct. One cannot invent a non-existent state of affairs and purport to fairly comment on them. In this case as I have stated hereinabove even if the article by DW1 could be said to have been factual there is no evidence that the one by Tony Mochama was factual as no evidence was led to show the circumstances under which he obtained his information. Again the intimation that the plaintiff may have used her intimacy with a Kora bigwig was not shown to have any factual basis. The law as I understand it is that it is not comment grossly to misrepresent the conduct of a person, and then to hold him up to execration for his alleged wrongdoing. To say that you may first libel a man and then comment upon him is obviously absurd. With respect to the issue that what the Defendant published were comments made by third parties, it does not matter as long as the same were defamatory. It is no defence to an action for libel that the defendant published it by way of repetition of hearsay since tail-bearers are as bad as tale-makers and every repetition of defamatory words is a new publication and a distinct cause of action. The defence of fair comment cannot succeed where the defendant has failed to prove every allegation. Defamation of a person is taken to be false until it is proved to be true and if a person has stated that which is false and defamatory, malice is also assumed. Accordingly, the publication cannot amount to fair comment on matters of public interest. See Registered Trustees of Catholic Archdiocese of Nyeri and Another vs. Standard Ltd and Others [2003] 1 EA 257.

With respect to the defence of privilege, I have no doubt that the defendant was under a duty to communicate to the plaintiff’s fans, the plaintiff’s sexual orientation. However, for qualified privilege to avail the defendant, it has to be shown that it was published with the honest desire to afford the public information and with no sinister motive. Malice would therefore destroy qualified privilege. As was held in Shah vs. Uganda Argus [1972] EA 80

“However, the protection of such privilege is destroyed if the plaintiff can show that publication was made maliciously. Malice in this connection does not necessarily connote ill-will or spite; it will include any indirect or wrong motive. “A defendant is only entitled to the protection of the privilege if he uses the occasion in accordance with the purpose for which the occasion arose but is not entitled to the protection of the privilege if he uses the occasion for some indirect or wrong motive...Whether or not the alterations done by the editorial staff amounted to sensationalism and use of excessive language as to amount to evidence of malice in the legal sense such as to deprive the respondents of the protection afforded by the occasion being one of qualified privilege is a question of degree, and where the line is to be drawn has to be decided in the light of the facts of each case.”

As stated hereinabove, existence of malice can be evinced by language in that if the language used is utterly beyond or disproportionate to the facts though it does not follow that merely because the words are excessive malice must be inferred. It can also appear from the relations between the parties before or after publication or from the conduct of the defendant in the course of the proceedings themselves, as, for example insisting on the defence of justification while nevertheless making no attempt to prove it, though here again, the mere pleading of justification is not itself evidence of malice even though the plea ultimately fails. In this case there was no attempt to prove that there was justification with respect to the article published by Tony Mochama as he never gave any evidence. Therefore this defence does not avail the defendant.

The next issue is whether the plaintiff’s credibility and reputation has been injured. That the plaintiff had made great strides in the music industry is clear from both the plaintiff’s and the defence evidence. That the insinuations of lesbianism and being bisexual would dent her image also does not require any evidence. In any case this is a case of libel which is actionable per se. Even if the tort was slander, section 4 of the Defamation Act provides:

In any action for slander in respect of words imputing unchastity to any woman or girl, it shall not be necessary to allege or prove special damage.

Whereas I am unable to find the exact financial loss caused to the plaintiff as a result of the subject publication, there is no doubt that the plaintiff’s reputation must have taken a hard beating as a result thereof.

That there was a demand made was admitted by the defence hence no issue arises therefrom.

That now leads me to the issue of the damages the plaintiff is entitled to. The rationale behind awarding of damages in defamation actions is to restore or give back to the party injured what he lost save in exceptional circumstances where punitive or exemplary damages may be awarded. The Court of Appeal inJohnson Evan Gicheru –vs- Andrew Morton and Michael O’mara Books Ltd [2005] 2 KLR 332, held:

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

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

The plaintiff in this case has sought an award of Kshs 5,000,000. 00 in general damages for defamation. In assessing damages in an action for libel one has to consider the particular circumstances of each case, the plaintiff’s position and standing in society, the mode and extent of publication, the apology, if offered and at what time of the proceedings, the conduct of the defendants from the time when libel was published up to the time of judgement. Whereas the freedom of expression enjoyed by the press is recognised, that freedom must be exercised with maturity and it should not be used as a weapon to destroy the names of those they hate; the freedom should not be used to injure the reputation of others unless the one exercising such action is ready to substantiate the injurious allegations.

In this case the publication was in a print media which obviously had wide coverage. However, it is admitted that apart from the publications which are the subject of this suit, there was evidence which was conceded that the plaintiff was also affected by another incident in which her explicit photos were published in the internet. According to DW3 the concert that he promoted was very family based. Whereas there was no evidence that the plaintiff contributed to the said photos being published on the internet, one cannot however state what if any contribution the publication of the same may have had on the plaintiff’s reputation.

Accordingly I find the defendant liable in damages for defaming the plaintiff and I enter judgement for the plaintiff against the defendant.

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

I am therefore of the view that the plaintiff in this case similarly deserves an award of Kshs 4,000,000. 00 in general damages which I hereby award her.

Exemplary damages are awarded where compensatory damages are not sufficient and when the plaintiff proves that the defendant when he made the publication knew that he was committing a tort or was reckless whether his action was tortious or not and decided to publish it because the prospects of material advantages outweighed the prospects of material loss; i.e. the tortious act must be done with guilty knowledge for the motive that the chances of economic advantage outweigh the chances of economic or perhaps physical penalty. I am not satisfied that the publication of the article complained of was done with such a motive. Aggravated damages, on the other hand, are meant to compensate the plaintiff for the additional injury going beyond that which would have flowed from the words complained of but for the presence of the aggravated circumstances and will be ordered against a defendant who acts out of improper motive e.g. where is actuated by malice; insistence on a flimsy defence of justification or failure to apologise. In this case there is evidence that the defendant persisted in publishing defamatory articles. It was also averred and not contradicted that the defendant never offered any apology. In an action for libel the trial court in assessing damages is entitled to look at the whole conduct of the defendant from the time the libel was published down to the time the verdict is given. It may consider what his conduct has been before action, and in court during the trial. See Gicheru vs. Morton & Another [2005] 2 KLR 332.

I find that in the circumstances of this case the plaintiff is entitled to an award under the head of aggravated damages and I award her the sum of Kshs 500,000. 00 thereunder.

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

Judgement read, signed and delivered in Court this 4th day of July 2014.

G V ODUNGA

JUDGE

In the presence of:

Mr Nyaribo for the plaintiff

Mr Mwangi for Mr Ligunya for the Defendant

Cc Kevin