[2024] KEHC 5200 (KLR)

Kariuki v Kugwa (Civil Appeal 164 of 2020) [2024] KEHC 5200 (KLR) (17 May 2024) (Judgment)

Neutral citation: [2024] KEHC 5200 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil Appeal 164 of 2020

HI Ong'udi, J

May 17, 2024

Between

Stephen Njoroge Kariuki

Appellant

and

Wahinya Kugwa

Respondent

(Being an appeal against the Judgment and decree of the Milimani Chief Magistrates Court delivered on 30{{^th}} April, 2020 by Hon. Gesora Chief Magistrate in CMCC No. 7422 of 2009)

Judgment

1. This appeal arises from a judgment and decree entered in Nairobi Chief Magistrate’s Civil Suit No. 7422 of 2009, on 30th April, 2009. In the lower court case vide the plaint dated 19th October, 2019 the respondent sought interalia an order against the appellant, compelling him to tender an apology and to retract the subject letter dated 29th October, 2008 copied to the Chef Justice, Judiciary Rules Committee and the Registrar High Court. The respondent also prayed for an award of aggravated and exemplary damages together with costs and interest in the suit.

2. Cumulatively both in his pleadings and oral testimony in court, the respondent pleaded that he has worked for the Judiciary for the last 10 years as a court assistant and had over the years maintained good truck record.

3. He claimed that on or about the 29th October, 2008, the appellant published a complaint letter addressed to the Chief Justice, the Rules Committee and the Registrar of the High Court, adversely mentioning his name as the person that removed some crucial evidence and documents in Succession cause No. 83 of 2006. Further that the dates in the court file were changed from 14th November, to 21st October, 2008, wherein a grant was confirmed in absence of all beneficiaries and purportedly in line with directions under Rule 44(3).

4. The impugned words, which according to him were false and made by the appellant with malicious intention meant and were understood by ordinary members of the society to mean that the respondent is a corrupt, fraudulent, unscrupulous, unethical, crafty, immoral, dishonest and a crook.

5. As a consequence, he was gravely injured in his character, credit, and reputation i.e. he lost good will from his professional colleagues, employer, supervisors and members of the public in general. As a result, he suffered loss and damage in respect of all of which he claimed the reliefs set out in the plaint.

6. In rebuttal, the appellant in his defence dated 8th December, 2009, denied the allegations and stated that if at all the respondent suffered any loss, then it was a result of his negligence and carelessness at his place of work. He emphasized that the respondent was immoral and dishonest while carrying out his duties and in fact he had exposed himself to risk and harm by carrying out his employment duties carelessly.

7. At the conclusion of the trial, the learned magistrate analyzed the record and confirmed that a complaint had been filed against the respondent by the appellant on allegations of removing certain court documents in High Court Succession Cause No. 83 of 2006, which after investigation was found to be unfounded and the investigations concluded that the complaint was made maliciously. He also found that there was no evidence tendered that showed that the respondent was the one that removed the said documents.

8. It is on this basis, that the trial Magistrate found that the respondent had proved his case to the required standard and awarded him general damages of Kshs 400,000/= and exemplary damages of Kshs 100,000/= for the damage of his reputation. The court also ordered the appellant to tender a written apology to the respondent and retract the letter dated 29th October, 2008 served to the Chef Justice, Rules Committee and the Registrar of the High Court.

9. The appellant was aggrieved by the above decision and filed this appeal raising Six (6) grounds of appeal as follows;-1. That the learned magistrate erred in law and in fact by disregarding the evidence of the appellant which was not shaken.2. That the learned magistrate erred in law and in fact by finding that the respondent had proved his case when clearly he had not.3. That the learned Magistrate erred in law and in fact in disregarding the documents produced by the appellant.4. That the Learned Magistrate erred in law and in fact by disregarding the fact that the respondent did not prove his case as per the threshold required in law.5. That the learned magistrate erred in law and in fact by disregarding the appellant’s submissions and testimonies and authorities, who was acting in persons and verbatim testimonies of the other parties.6. That the learned Magistrate erred in law and in fact by delivering the ruling against the weight of evidence.

10. He prayed for the judgment of the trial Court delivered in favour of the respondent to be vacated, quashed and or set aside, and the respondent’s suit against him to be dismissed with costs to him.

11. The appeal herein was canvassed by written submissions.

Appellant’s submissions 12. These were filed by Stephen Njoroge Kariuki the appellant herein and are dated 9/02/2024. He submitted from the onset that the trial court ignored his evidence and testimony and in doing so infringed on his right to expression guaranteed under the Constitution. He argued that the court ought to have found his complaint as constitutionally privileged as was done in the case of New York Times Vs Sullivan 376 US 254 (1964).

13. He submitted that the complaint letter contains facts that were a true reflection of what transpired in court, before Justice Kubo, as such cannot amount to defamation. Further, that the trial court ignored all these evidence and instead found in favour of the respondent who did not tender any evidence in support of his case nor called any witnesses.

14. He argued that the information was truthful and thus justified, hence the need for the respondent to prove that the letter defamed his character and in effect demonstrate actual malice as stated in the case of Royal Media Services Ltd V Jakoyo Midiwo[2018] eklr.

15. He submitted that the words in the letter were not published and, in any case, did not contain any malice to warrant the grant of the reliefs sought. He thus prayed for this court to set aside the Judgment by the trial Court.

Respondent’s submissions 16. These were filed by Macharia Gakaria & Associates and are dated 9th March, 2024. Counsel submitted that the record of Appeal as filed is incomplete for excluding material evidence adduced before the trial court and failing to also include the statement of defence as is required under Order 42 Rule 13(4)(f) of the Civil Procedure Rules. Thus, the Appeal should be struck out for being incomplete and incompetent.

17. On the substance of the Appeal, counsel submitted that the words complained of, were uttered by the appellant in his letter dated 29th October, 2008, which words were uttered with knowledge that they were slanderous or with reckless regard that they were slanderous.

18. It was submitted that the letter from the Deputy Registrar of the Family Division of the court dated 5th July, 2011, confirmed that no such thing arose during the proceedings of the court on the material day and despite raising the same with the appellant, no apology was rendered. Moreover, that the letter was written in 2008 on account of acts that allegedly transpired in 2007, a clear indication of the malice by the appellant.

19. Counsel argued that the trial court properly addressed its mind to the principles of the law in finding for the respondent and, therefore the Judgement was entered properly and urged this court to refrain from interfering with the said decision.

20. It was submitted for the respondent that the ingredients for defamation are; existence of defamatory statement, publication of the defamatory statement and that the publication must refer to the claimant. This was reiterated by the court in Phinehas Nyagah V Gitobu Imanyara[2013] eklr .

21. Accordingly, that the appellant made the said defamatory words without any basis, as no evidence was tendered to confirm that the respondent interfered with the Succession file No. 83 of 2006.

22. Counsel urged this court to seek guidance of section 78 of the Civil Procedure Act and re-evaluate the evidence tendered by both parties and dismiss the Appeal herein. To buttress its argument, counsel relied on the case of Nation Mdeia Group Limited V Ndegwa [2024] KEHC 21127 (KLR).

Analysis and Determination 23. This being a first appeal, the court is required to re-evaluate and re-analyze the evidence and come to its own conclusion on the issues in controversy as between the rival parties herein, bearing in mind that the trial court had the advantage of seeing and assessing the demeanor of witnesses. See the dictum in Selle & Another vs. Associated Motor Board Co. Ltd [1968] EA 123

24. In Gitobu Imanyara & 2 others v Attorney General [2016] eKLR,the Court of Appeal stated that;-“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect”

25. I have considered the record in light of the above mandate, the grounds of appeal, record of appeal, the rival submissions, legal authorities and principles of law relied upon by the parties herein in support of their respective positions. It is my opinion that the issues falling for determination in the disposal of this appeal are as follows;i.Whether the Appellant has established the necessary ingredients to prove the tort of defamation.ii.Whether there are grounds to interfere or set aside the award of Kshs. 500,000 granted to the Respondent.

26. It is trite that the law of defamation is concerned with the protection of a person’s reputation. Patrick O'Callaghan in the Common Law Series: The Law of Tort at paragraph 25, expressed himself in the following manner:“The law of defamation, or, more accurately, the law of libel and slander, is concerned with the protection of reputation: 'As a general rule, English law gives effect to the ninth commandment that a man shall not speak evil falsely of his neighbour. It supplies a temporal sanction …’ Defamation protects a person's reputation that is the estimation in which he is held by others; it does not protect a person's opinion of himself nor his character. 'The law recognizes in every man a right to have the estimation in which he stands in the opinion of others unaffected by false statements to his discredit' and it affords redress against those who speak such defamatory falsehoods…”

27. It follows therefore that a claimant in a defamation suit has to establish three ingredients as discussed in the case of Nation Media Group & Another vs. Hon. Chirau Mwakwere –Civil Appeal No. 224 of 2010 (ur), These elements are:a.The existence of a defamatory statement;b.The defendant has published or caused the publication of the defamatory statement;c.The publication refers to the claimant.

28. On proof of existence of the impugned defamatory matter, it is common ground that the appellant herein wrote a complaint letter addressed to the Chief Justice, The Rules Committee and the Registrar of the High, complaining about some documents that were removed from their Succession Cause No. 83 of 2006. It is also not in dispute that the appellant suspected the respondent herein and heavily mentioned him in the said complaint letter. What is in contention is whether the said contents were defamatory of the respondent. As succinctly put by the Court of Appeal in S M W vs. Z W M [2015] eKLR:-“A statement is defamatory of the person of whom it is published if it tends to lower him/her in the estimation of right thinking members of society generally or if it exposes him/her to public hatred, contempt or ridicule or if it causes him to be shunned or avoided.”

29. The test for whether a statement is defamatory is an objective one. It is not dependent on the intention of the publisher but on what a reasonable person reading the statement would perceive. In Halsbury’s Laws of England 4th Edition Vol. 28 at page 23 the authors opined:“In deciding whether or not a statement is defamatory, the court must first consider what meaning the words would convey to the ordinary man. Having determined the meaning, the test is whether, under the circumstances in which the words were published, a reasonable man to whom the publication was made would be likely to understand them in a defamatory sense.”

30. Looking at the complaint letter in question, paragraph two in no uncertain terms refers to the respondent Mr. Wahinya Kugwa, as the court clerk that removed evidence and other documents from their Succession Cause No. 83 of 2006. Paragraph 4 stated that;-“The Evidence was therefore certain that the Court file is corruptly tampered with and manipulated by the Court Clerk against myself and in particular attempting to mislead the Honourable Justice Kubo.”

31. The picture painted of the respondent in my view is one that could portray the respondent, as a corrupt individual, unscrupulous and a dishonest employee. It is my view therefore, that the defamatory nature of the letter was clear.

32. The appellant relied on justification as a defence to the said letter and stated that he wrote the said letter as a reflection of exactly what transpired in Court on 17th October, 2007. The letter written by Linda Thuma, Executive officer of the family division addressed to the Chief Court Administrator, states otherwise, that on the on 17th October, 2007, the parties appeared before Justice Kubo and took a date for Ruling of the Summons for Revocation of Grant. In fact, that the said Application, that was purportedly removed from the file was in fact confirmed to be on file on 9th October, 2006, as such the allegations raised in the complaint letter were without any basis. This is corroborated by the letter of T. Ngugi, the Family Division Deputy registrar, dated 5th July, 2011 addressed to the Chief Court Administrator and further reinforced by the proceedings of the Court in Succession Cause No. 83 of 2006 tendered in evidence.

33. Similarly, the trial court found that the appellant herein did not tender any evidence to confirm that the respondent indeed removed the said court documents from the file. Moreover, investigations were carried out and the allegations raised in the complaint letter were found to be baseless and malicious and thus the respondent’s reputation was tainted. It is on this basis, that the trial court awarded the respondent damages for damage to his reputation.

34. Justification, as a defence, calls for the defendant to demonstrate that the defamatory imputation is true and he cannot get away with it by saying that he believed that the matter complained of was true. This Position was reiterated by the court in Hon. Uhuru Muigai Kenyatta v Baraza Limited, where Rawal J (as she then was) observed that the information that causes defamation, will be assumed to be untrue until the defendant proves otherwise. The learned judge stated:-“...While taking defence of justification or qualified privilege in the Defamation Case, the Defendant was required by law to establish the true facts and the Plaintiff has no burden to prove the defence raised by the Defendant…”

35. It is therefore clear that the defence of truth and justification relied upon by the appellant is not applicable in this case.

36. On malice, I find the trial Court’s finding that the appellant’s letter addressed to the three parties, including the Chief Justice was actuated by actual malice. Moreover there is evidence on record demonstrating that the appellant never made any efforts to verify the truthfulness of the contents before publication.

37. In conclusion, I opine that the learned magistrate correctly interpreted and applied the law and arrived at the correct findings, hence the decision by the trial court is upheld.

38. Turning to damages, the law on circumstances under which an appellate court would interfere with an award of damages has been reiterated in numerous authorities and in various jurisdictions throughout the world and the general principle is the same. The Court of Appeal of Nigeria discussing the same issue in the case of Dumez (Nig) Ltd V. Ogboll had this to say:-“It is settled law that ''An Appellate Court will not interfere with an award of general damages by a trial Court unless:- (a) where the trial Court acted under a mistake of law; or (b) where the trial Court acted in disregard of principles; or (c) where the trial Court took into account irrelevant matters or failed to take into account relevant matters: or (d) where the trial Court acted under a misapprehension of facts; or (e) where injustice would result if the Appellate Court does not interfere; or (f) where the amount awarded is either ridiculously low or ridiculously high that it must have been erroneous estimate of the damage.”

39. Accordingly, an award of damages is an exercise of discretion of the trial court but the same should be within limits set out in decided case law and must not be inordinately so low or so high as to reflect an erroneous figure. On that note the respondent herein was awarded Kshs. 400,000/= as general damages and Kshs 100,000/= exemplary damages. Considering that none of the parties made any submissions on the award granted by the trial court, and in view of the fact that the respondent’s character and reputation were damaged. I find no reason to make this court interfere with the awards. The upshot is that the Appeal herein lacks merit and is hereby dismissed with costs. The lower court Judgment is upheld.

40. Orders accordingly.

DELIVERED VIRTUALLY DATED AND SIGNED THIS 17TH DAY OF MAY, 2024 IN OPEN COURT AT NAKURU.********H. I. ONG’UDIJUDGEPage 3 of 3