[2022] KEHC 15311 (KLR)

Kibui v People Limited & another (Civil Case 616 of 2006) [2022] KEHC 15311 (KLR) (Civ) (11 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15311 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Case 616 of 2006

JK Sergon, J

November 11, 2022

Between

Julius Kagema Kibui

Plaintiff

and

The People Limited

1st Defendant

Phylis Maina

2nd Defendant

Judgment

1. The plaintiff herein filed a suit by way of the plaint dated June 14, 2006 and sought for judgment against the defendants jointly and severally in the following manner:i.An injunction restraining the defendants and each of them by themselves, their agents or servants or otherwise howsoever publishing any such libel of and concerning the plaintiff.ii.General damages for the libel.iii.Exemplary damagesiv.Interests on (b) and (c) hereof at court rates.v.Costs of this suit.

2. The plaintiff pleaded in his plaint that on or about July 9, 2005 the defendants jointly composed and published a violent, spiteful, and defamatory statement about the plaintiff in which they accused the plaintiff of being an unreliable, inept, unethical, and unprofessional principal. The following are the words from an article that the defendants published or caused to be published about and concerning the plaintiff:“Scribes save pupil from punishment”Thika based scribes on Thursday ended a one-month torturous punishment of a form IV student of Gaichanjiru Boys Secondary School of Kandara division, Maragua district.The journalist saved Master Christopher G Gitahi from further torment of digging a tree trunk for the better part of 30 days, when the school’s principal Kagema Kibue hurriedly ordered the student to abandon the core and go to class after ascertaining that the press was around.The student has been out of class since February when he was suspended for allegedly patting a female teacher’s behind.After spirited efforts by the student’s mum Margret Wambui to have her son back in class, which saw her go to the area district education officer ,provincial director of education and the ministry of education headquarters ,the student was allowed back on June 6 in school but not in class.The principal meted a stiff punishment to the boy of digging a giant trunk in the compound since then Gitahi has been digging the trunk while other students are in class. Before the student was allowed back in school, his mother had been to the principal’s office he dashed to his nearby house before summoning a drunken administration police officer.Yesterday, Wambui led the journalist to the school only to find her son had been withdrawn from the digging site and sent into class for the first time since February. When the press approached the principal’s office he dashed to his nearby house before summoning a drunken administration police officer.The office alleged he had been summoned and ordered to eject suspicious characters who were in the school precinct intending to cause chaos. The officer became sober after the scribes identified themselves.The school’s deputy principal admitted Gitahi had been on punishment for a month but hastened to add that was solely the decision of the boss.He however, regretted that the principal was meeting draconian punishment to students for petty misdeed a situation that led to last month strike by students who demanded Kibue’s transfer.He said last month seven students were sent parking for allegedly losing books worth Kshs 60,000/=.They were called back after the deputy’s intervention. The press went to the school after Gitahi’s mother disclosed his plight. She claimed that her son was being victimized after she declined sexual advances by the principal.Teachers interviewed said they feared that the school performance may nose dive as their principal was not co-operating. When our reporter contacted the principal hours later on his mobile phone, he declined to comment on the serious allegations."

3. The plaintiff further pleaded in his plaint that the said words meant and were understood to mean that the plaintiff was unethical and a depraved principal who used his position to seek sexual favours from parents and members of the public.

4. The plaintiff avers that the aforementioned words were intended and calculated to seriously harm his reputation, character, and credit, as well as cause him considerable distress and embarrassment. They also lowered his reputation among right-thinking members of society at large, which has led to him being shunned and avoided.

5. The plaintiff further avers the plaintiff has suffered loss and damage as well as injury to his credibility as a professional principal, integrity, professional standing, and his relationships with his professional colleagues and the general public as a result of the aforementioned words being published callously, viciously, recklessly, wantonly, and maliciously.

6. The defendants entered appearance upon service of summons and filed their statement of defence dated July 31, 2006 to deny the plaintiff’s claim.

7. In their statement of defence, the defendants stated that the said words were accurate account of events that took place at the Gaichanjiru Boys Secondary School involving a student Christopher G Gitahi.

8. At the hearing of the suit, the plaintiff testified in support of its cases while the defendant closed its case without summoning any witnesses.

9. The plaintiff who was PW1 adopted his signed witness statement dated March 26, 2015 as her evidence in chief and stated that he is the currently the principal of Karega Secondary School and that he holds a Master’s degree in Education Administration from Kenyatta University.

10. It was his evidencethat he has never made any sexual approaches in any of the schools he has worked at, and that he was still married at the time the story was published.

11. It was also his testimony that he did not ask for sexual favours from the mother of the student who had been punished to remove a tree stamp and that a Parents Teachers Association (PTA) member called him when he read about the story.

12. The plaintiff stated that the boy touched a female teacher on her butt and that he had to be punished.

13. On cross-examination, the plaintiff stated that the student called Geoffrey Gitahi was on punishment but did not know the duration and that he may not recall the number of times the student’s mother visited the school.

14. The plaintiff further stated that the students would be suspended for fourteen days after which the boy was punished.

15. It was the plaintiff’s evidence that he learnt that Geoffrey Gitahi's mother accompanied the journalist when he visited the school and that he was unaware that the boy's mother had also gone to the provincial office of education.

16. It is his testimony that when he arrived at the school for the first time, he discovered that the youngster had been suspended and that he had been present when the boy's mother and reporters from the first defendant visited the school.

17. It is also his testimony that the accusations against him for making sexual approaches genuinely upset him, that he is still married, that he kept his job as principal in spite of the unpleasant publication, and that the present school is almost identical to the one he was at when it was published.

18. In re-examination, the plaintiff stated that it is false that he expelled journalists from the school because he was not present on the relevant day, and that he did not make any sexual advances toward the boy's mother or anyone else. That he has not applied for any employment in a public setting, and that this has caused him to hesitate about seeking career advancement.

19. At the close of the hearing, this court called upon the parties to file and exchange written submissions but at the time of writing this judgment the defendants had not filed their submissions.

20. On their part, the plaintiff through his submissions dated October 26, 2022 submitted that he has demonstrated that the information in the publication that pertained to him and what was written about him were inaccurate and painted him as a morally bankrupt, reckless, and unprofessional principal.

21. The plaintiff further submitted that the defendants did not offer any apology and in their defence pleaded justification and qualified privilege which were not proved.

22. It is the plaintiff’s submissions that the defendant did not call any witness on the hearing date despite being aware of the hearing date which was taken by consent of both lawyers and accordingly, no evidence was produced in support of the defence which was not proved and must be dismissed.

23. The plaintiff submits that an award of Kshs 5,000,000/= as general damages and Kshs 2,000,000/= as aggravated damages will be proportionate with the facts of this case and that it has proven its case on the balance of probability and should be granted the reliefs requested in the plaint.

24. The plaintiff relied on the case John Joseph Kamotho &others v Nation Media Group & 2 others (HCCC No 368 of 2001).Where an award of Kshs 6,000,000/= plus Kshs 1,000,000/= aggravated damages was made in favour of JJ Kamotho.

25. The plaintiff also relied on the case of Paul Mwaniki Gachoka & Raphael Ndrangut/aMwaniki Gachoka & Company Advocates v Nation Media Group Limited (HCCC No 46 of 2019). Where an award of Kshs 10,000,000/= made up of Kshs 8,000,000/= as damages for libel and Kshs 2,000,000/= being aggravated damages were made to Mwaniki Gachoka.

26. I have looked at the pleadings before me, the evidence and the comprehensive submissions by the plaintiff and at the time of writing this judgment the defendants had not filed their submissions.

27. Upon considering the evidence tendered and the plaintiff’s submissions together with authorities relied upon, I find the following to be the issues arising for determination:i.Whether the plaintiff has made a case for defamation against the defendant;ii.Whether the plaintiff are entitled to the reliefs sought.

28. The Court of Appeal in Wycliffe A Swanya v Tunyuta East Africa Limited & Francis Massai Nairobi CA No 70 of 2008 set out the essential components which a plaintiff must prove in order to succeed in an action on defamation. The plaintiff must prove the following;i.That the matter complained of is defamatory in character.ii.That the defamatory utterances or statement was published or communicated to someone other than the person defamed.iii.That it was published maliciously.iv.In slander subject to certain exceptions, that the plaintiff suffered special damages.

29. On the first issue, I borrow from the Black's Law Dictionary, 8th edition definition of the term ‘defamation’ as follows:“The act of harming the reputation of another by making a false statement to a third person.”

30. The ingredients of a defamatory claim were laid out by the Court of Appeal in the case of Raphael Lukale v Elizabeth Mayabi & another [2018] eKLR and are that:i.The statement must be defamatory.ii.The statement must refer to the plaintiff.iii.The statement must be published by the defendant.iv.The statement must be false.

31. In respect to the second and third ingredients which I wish to begin with, from my evaluation of the oral evidence tendered by the plaintiff, I established that the publications in question were made by the defendants and made reference to the plaintiff. In its pleadings, the defendants admitted to making the said publications and did not deny that the same related to the plaintiff herein.

32. I am therefore satisfied that the plaintiff has established the two (2) referenced ingredients on defamation.

33. This brings me to the first ingredient to do with whether the impugned publications are defamatory of the plaintiff.

34. At the heart of a defamatory statement lies its tendency to lower the reputation of the claimant in question. This was the position held by the Court of Appeal in the authority of S M W v Z W M [2015] eKLR and restated in the case of Joseph Njogu Kamunge [2016] eKLR thus:“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.”

35. The legal position is that in order to determine whether a statement or publication is defamatory, one must seek to understand the meaning conveyed by the words in question to an ordinary/reasonable person.

36. On his part, the plaintiff under paragraph 7 of his plaint pleaded that the words complained of in the impugned publications were defamatory of them in the sense that they could be inferred in their ordinary and natural sense to imply that he is inter alia, an irresponsible, incompetent, unethical and unprofessional principal. The plaintiff also pleaded and testified that as a result of the impugned publications, it lowered his reputation, injured his character, credit and caused him considerable distress and embarrassment and caused him to be shunned and avoided.

37. I also note that the defendants on their part did not call any evidence to refute the claim by the plaintiff or raise the failure to set out the defamatory words verbatim or to give specific particulars of the same issue at the preliminary stages of the suit.

38. That notwithstanding, I am satisfied that though the plaintiff did not set out verbatim the words published concerning them, he was able to set out the title of the said publications and describe in fair detail the nature of the publications made, as well as particularize their meaning in the ordinary and natural sense.

39. Upon considering the aforementioned particulars of defamation and innuendo pleaded in the plaint and in the absence of any contrary evidence, I conclude that the words published would ordinary sense be taken to have the meaning pleaded in the plaint.

40. Concerning the reputation of the plaintiff, credible evidence was tendered to support the claim that following the impugned publications, his reputation was negatively affected.

41. Further to the foregoing, I am alive to the existing legal principle that in instances of libel, the law presumes damage so long as a party has shown that the defamatory material was written or printed or in some permanent form. This was the position taken by the court in the case of Peter Maina Ndirangu v Nation Media Group Limited[2014] eKLR cited in the plaintiffs’ submissions, where the court stated that in an action of libel damage suffered need not be proved. Such position was restated in the case of Alnashir Visram v Standard Limited[2016] eKLR.

42. In the premises, I am satisfied that the plaintiffs have shown that the publications in question are defamatory of them.

43. On the ingredient touching on malice, the court in the case of Phinehas Nyagah v Gitobu Imanyara [2013] eKLR was of the view that malice is not restricted to spite or ill will but may extend to reckless actions drawn from the publication in question.

44. Upon considering the nature, frequency and circumstances of the impugned publications coupled with the impact namely the straining in his marriage and family life as well as his profession as a principal, going by the evidence tendered, it is my view that the plaintiff has proved malice against the defendant. It is noteworthy that malice was not refuted by the defendant by way of evidence.

45. In respect to the ingredient to do with whether the publication was false, the court in the case of Joseph Njogu Kamunge 2015 eKLR reasoned that a defamatory statement is presumed to be false unless and until the same is shown to be true by a defendant.

46. In the present instance, I am satisfied that the plaintiff brought credible evidence to demonstrate the false nature of the impugned publications and which evidence was not countered by the defendant at the trial. Furthermore, while I note that the defendants pleaded that they were under a social or moral duty to publish the said words but did not tender any evidence at the trial to support such defence. To my mind therefore, the plaintiff has shown that the impugned publications were untrue.

47. In view of the foregoing, I am satisfied that the plaintiff have established a claim for defamation against the defendants on a balance of probabilities.

48. This brings me to the second issue touching on whether the plaintiff is entitled to the reliefs being sought.

49. On general damages, the plaintiff submitted that he had proved his case on a balance of probabilities and that an award of Kshs 5,000,000/= as general damages would be appropriate with the circumstances.

50. I have considered the professional standing of the plaintiff who going by his testimony and supporting evidence, is a school principal with a well of experience in the education sector. I also took into account his evidence that he has taught in various schools in Kenya.

51. In Raphael Lukale v Elizabeth Mayabi & Royal Media ServicesLtdCivil Appeal No 286 of 2016 [2018] eKLR, the Court of Appeal awarded the appellant who was a head teacher a sum of Kshs 1,500,000/= for defamatory statements aired by an FM station with wide listenership among the Luhya community.

52. After considering comparable awards submitted by both parties, I am convinced that the plaintiff is entitled to be awarded general damages. I award the plaintiff a sum of Kshs 2, 000,000/= for general damages.

53. The plaintiff too sought to be paid aggravated and exemplary damages over and above general damages. This court was beseeched to award on this head a sum of Kshs 3 million. In the case of John =vs= MGN (1997) QB 586 it was held interalia that “........... Exemplary damages on the other hand had gone beyond compensation and are meant to “punish” the defendant. Aggravated damages will be ordered against a defendant who acts out of improper motive e.g where it is attracted by malice, insistence on a flurry defence of justification or failure to apologise.”

54. In this instant case, this court found by inference that the defendants acted maliciously. It is also clear from the pleadings and proceedings that the defendants have not deemed it fit to offer an apology despite the fact that evidence was presented showing that the factual basis of the publication was false.

55. In the circumstances the plaintiff is entitled to a claim for aggravated and exemplary damages. I award the plaintiff a sum of Kshs 1,500,000/= representing both exemplary and aggravated damages.

56. The plaintiff to have costs of the suit. The awards to attract interest at court rates from the date of judgement until full payment.

57. In the end, judgement is entered in favour of the plaintiff and against the defendants with the following awards:i.General damages for defamation Kshs 2,000,000/=ii.Aggravated and exemplary damages Kshs 1,500,000/=iii.Costs of the suit is awarded to the plaintiff.iv.Interest at court rates on the above awards from the date of judgement until full payment.v.An injunction is hereby issued restraining the defendants whether by themselves, agents or servants and/or otherwise howsoever from publishing any such libel of and concerning the plaintiff.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 11TH DAY OF NOVEMBER, 2022. ………………………J. K. SERGONJUDGEIn the presence of:……………………………for the Plaintiff……………………………for the 1st Defendant……………………………for the 2nd Defendant