[2022] KEHC 13529 (KLR)

Kilukumi v Nation Media Group Limited (Civil Case 429 of 2006) [2022] KEHC 13529 (KLR) (Civ) (7 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13529 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Case 429 of 2006

JK Sergon, J

October 7, 2022

Between

Kioko Kilukumi

Plaintiff

and

Nation Media Group Limited

Defendant

Judgment

1. This decision on quantum follows the judgement delivered by Lady Justice C W Githua on May 28, 2020 on HCCC 430 of 2006 which was a test suit on liability in respect of five other suits which had been filed by the plaintiffs in the suits therein. The suits were as follows:i.Kioko Kilukumi v Nation Media Group Limited – HCCC 429 of 2006;ii.Charles Waweru Gatonye v Nation Media Group Limited – HCCC 431 of 2006iii.Fred Ngatia v Nation Media Group Limited – HCCC 432 of 2006iv.Njoroge Regeru v Nation Media Group Limited – HCCC no 433 of 2006; andv.Gibson Kamau Kuria v Nation Media Group Limited – HCCC no 448 of 2006.

2. There were five issues for determination in that judgment, the issues were:i.Whether the amended plaint disclosed a reasonable cause of action;ii.Whether the publications were defamatory of the plaintiff;iii.Whether the defence of fair comment is available to the defendant;iv.Whether the plaintiff is entitled to the reliefs sought;v.If the answer to (iv) above is in the affirmative, whether the East African and the Daily Newspapers have circulation throughout the Republic of Kenya and East Africa as well as globally through the internet.vi.What orders should be made on costs.

3. The upshot of the judgment was that the learned judge did find that there was indeed a reasonable cause of action, that the publications by the defendant were indeed defamatory, that the defence of fair comment was not available to the defendant, that the newspapers indeed had circulation nationally, regionally and globally through the internet. With regards to the reliefs sought, the learned judge found that the plaintiff was not entitled to an order of mandatory injunction in terms sought due to the effluxion of time since the publications were made and considering that there is no evidence that the defendant had since published the defaming articles.

4. The learned judge also declined to award damages in lieu of an apology.

5. With general damages, the judge awarded a sum of Kshs 10,000,000 taking into account the prominence and extent of the publication, the gravity of libel and the manner in which it affected the plaintiff’s reputation and feelings; the plaintiff’s position and standing ion society the defendants conduct after the publication and in the course of the proceedings and apology if offered.

6. As regards exemplary and aggravated damages, the judge chose to award the plaintiff Kshs 2,000,000.

Cost were awarded to the plaintiff. 7. The plaintiff avers that he has successfully proved that the words published by the defendant were defamatory and that in light of the extent of the publication and the seniority of the plaintiff, he ought to recover general damages of Kshs 30,000,000.

8. He cites the case of Johnson Evans Gicheru v Andrew Morton and Another Civil Appeal No 314 of 2000 which highlighted the principles to be considered by the court in awarding damages.

9. He also cites the following cases where the courts awarded damages close to the amount the plaintiff seeks. The cases are:i.Charles Kariuki T/A Kariuki and Co Advocates V the Nation Newspapers Ltd HCCC no 5 of 2000ii.Christopher Ndarathi Murungaru v John Githongo 2019 eklriii.Kipyator Nicholas Kiprono Biwott v Clays Limited & 5 others 200 eklr

10. Concerning aggravated damages, the plaintiff urged the court to award a sum of Kshs 5,000,000 following that the defendant intended to inflict maximum damage on the plaintiff. He cites the case of Francis Xavier Ole Kaparo v Standard Limited and 3 others2010 eklr andKen Odondi & 2 others v James Okoth Ombura T/A Okoth Ombura and Company Advocates 2013 eklr.

11. As regards exemplary damages, the plaintiff seeks a sum of Kshs 3,000,000 and submits that the defamatory words were published deliberately and without regard to the truth. He submits that exemplary damages go way beyond compensation and are meant to punish the defendant as held in the Kipyator Nicholas Kiprono Biwott case (supra). He further submits that the plaintiff to date has not bothered to offer an apology and neither offered to retract the defaming articles. In the same length, the plaintiff also prays for an award of Kshs 2,000,000 as damages in lieu of an apology.

12. Concerning interests and costs, the plaintiff submits that damages should apply at court rates form the judgment until payment in full.

13. The defendant contends that the plaintiff is only entitled to nominal damages as he has not led any additional witness testimony to demonstrate actual damage to reputation and character. It cites the case of Nation Newspapers Ltd v Gilbert Giobendi2002 eklr in support this. It also cites the case of Kenya Tea Development Agency Ltd v Benson Ondimu Masese T/A B O Masese & Co Advocates2008 eklr where the court stated what should be considered in awarding damages.

14. The defendant submits that the amount sought by the plaintiff as general damages is unjustified and manifestly excessive. It submits that the plaintiff in the test suit was awarded Kshs 10,000,000 as general damages and the plaintiff has not justified why he claims a higher reward.

15. The defendant contends that the plaintiff’s averments in his plaint were not supported by additional witness testimony and are therefore untenable.

16. It further submits that it respects the seniority of the plaintiff in HCCC 430 of 2006 and of the instant suit, that the plaintiff in this suit was admitted to the roll of advocates in 1986 (P 105/2051/90) and that the plaintiff in the test suit was admitted five years prior. The defendant submits that should the court be persuaded to consider the seniority of the plaintiff’s in both suits as a basis for the award of damages, the defendant submits that there is no basis why the plaintiff in this case should be awarded higher damages.

17. The defendant further submits that there has not been any demonstration of the destruction of the plaintiff’s personal life and that the plaintiff is still practicing as an advocate of the high court of Kenya to date and his professional career has not been destroyed.

18. The defendant urges the court to award general dames of Kshs 2,000,000.

19. On aggravated damages, the defendant submits that an award of Kshs 5,000,000 as sought by the plaintiff is excessive and unjustified. It submits that and award of Kshs 500,000 would be a fair award for aggravated damages.

20. Concerning exemplary damages, the defendant submits that an award of Kshs 3,000,000 is unjustified and the plaintiff has not demonstrated any entitlement to the exemplary damages and urge the court to completely disregard the prayer in its entirety.

21. As regards damages in lieu of a suitable apology and retraction, the defendant submits that Kshs 300, 000 would suffice.

22. Finally, concerning the costs of the suits and interest, the defendant submits that the court ought not to award any interest on damages as submitted by the plaintiff because the plaintiff is not entitled to the damages it seeks.

23. The plaintiff submitted that the issues of whether the publications were defamatory, whether they caused reputational damage and whether they had wide coverage were already determined in the test suit. The plaintiff submits that the defendant also did not call any witnesses or witness statements to challenge the plaintiff’s case in any way.

24. He further submits that the test suit was limited to the question of liability and thus the Honorable court is not bound by the damages awarded therein. The plaintiff submits that he is entitled to the damages as provided in his primary submissions.

25. The issues for determination can be summed up to one issue: Whether the plaintiff is entitled to the damages (general, aggravated, exemplary, in lieu of an apology) he seeks.

26. HCCC 430 of 2006 was a test suit for liability and it was found that the defendant was indeed liable for defamation. The court will therefore only touch on the issue of damages.

27. The plaintiff seeks an award of Kshs 30,000,000 for general damages on grounds that the plaintiff is a senior advocate and that the defamatory publication was circulated widely nationally, regionally and globally through the internet. The defendant on the other hand submitted than an award of Kshs 2,000,000 would suffice as general damages for defamation in this suit. It also submitted that the plaintiff did not justify the award of Kshs 30,000,000.

28. Damages are awarded at the discretion of the court and to quote the learned judge in HCCC 430 of 2006, the court is guided by several factors which includes the prominence given to the publication, the extent of its publication, the gravity of the libel and the manner in which it affected the plaintiff’s reputation and feelings; the plaintiff’s position and standing in society; the defendant’s conduct after the publication and in the course of the proceedings and any apology if offered.

29. It was indeed found that the publication was given great prominence and that it did enjoy a wide circulation in Kenya, east Africa and globally through the internet. This is not in dispute. However, I find myself agreeing with the defendant that the amount of damages sought by the plaintiff are unjustified bearing in mind that the plaintiffs in the rest of the suits are also senior counsels with great reputation. In my view, relying on the fact that the plaintiff is a senior counsel, the should show how much more his reputation was damaged that he is entitled to Kshs 20,000,000 more than the plaintiff in HCCC 430 of 2006.

30. The defendant stated that the plaintiff is only entitled to nominal damages and cited the case of Nation Newspapers Ltd v Gilbert Gibendi 2002 eklr where the court held that:“Posing only the defamation per se is not sufficient, to merit a substantial award of damages. Such a plaintiff would probably get only nominal damages. In the instant case, the respondent did not lead evidence to show what damage to his character and reputation he may have suffered. There was no basis for the award of 100,000/=. I would award him 40,000/=”

31. I disagree with the defendant bearing in mind that it is not in dispute that the plaintiff is a senior counsel and a highly regarded member of the legal profession. In addition to this, the defendant failed to prove that the articles were published in good faith or that they consisted of facts which were true or substantially true. Without a distinction of opinion from facts, it was found that anyone who read the publications would have deemed them as facts. This in my view outrightly damages the plaintiff’s reputation bearing in mind his standing in the legal profession.

32. In light of the above, I find that the plaintiff has failed to justify the amount of Kshs 30,000,000 as an award for damages and find that the Kshs 10,000,000 as held in the test suit is fair and sufficient as general damages for the plaintiff.

33. The case of John v MG Ltd [1996] I ALL ER 35 was cited in the case of Ken Odondi & 2 Others v James Okoth Omburah T/A Okoth Ombura & Company Advocates 2013 eklr where it was held that:“In the English Court of Appeal decision in the case of John v MG Ltd.[1996] I ALL ER 35 the Court held:“The successful plaintiff in a defamation action is entitled to recover, the general compensatory damages such sum as will compensate him for the wrong he has suffered. That must compensate him for damages to his reputation, vindicate his name, and taken account of the distress, hurt and humiliation which the defamatory publication caused........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 apologize”.

34. It was found that the defendant had acted in malice when it published the defaming articles with the intention of inflicting maximum damage to the plaintiffs’ reputation. In the case of James Evans Gicheru v Andrew Morton & Another [2005] eKLR, the court in highlighting the principles of awarding damages in defamation held thus:“I would think that in the instant case to arrive at what could have been said to be a fair and reasonable awards the learned trial Judge could have drawn considerable support in the guidelines in Jones V Pollard[1997] Emlr233. 243 and where a checklist of compensable factors in libel actions were enumerated as: -1. The objective features of the libel itself, such as its gravity, its province, the circulation of the medium in which it is published, and any repetition.2. The subjective effect on the plaintiff’s feelings not only from the prominence itself but from the defendant’s conduct thereafter both up to and including the trial itself.3. Matters tending to mitigate damages, such as the publication of an apology.4. Matters tending to reduce damages.5. Vindication of the plaintiff’s reputation past and future.”

35. The defendant has neither apologized nor retracted the defaming articles for 14 years. An apology or retraction would serve as a mitigating factor for the defendant and reduce it’s ‘punishment’. It has in the course of proceedings not demonstrated any remorse in defaming the plaintiffs and this in my view deserves punishment. However, an apology would have no effect on the damage to the plaintiffs’ reputation being that the articles were published more than 14 years ago and have not been republished since. Nevertheless, it does not cancel out the defendant’s wrongs. Moreover, the defendant proposed a sum of Kshs 300,000 as damages in lieu of an apology and Kshs 500,000 for aggravated damages. In light of the circumstances, under this head, I award the following amounts as damages:i.Aggravated damages – Kshs 1,000,000/=ii.Exemplary damages – Kshs 1,200,000/=iii.Damages in lieu of an apology – Kshs 1,000,000/=

36. In the end, the total sum of damages awarded are as follows:i.General damages Kshs 10,000,000/=ii.Aggravated damages Kshs 1,000,000/=iii.Exemplary damages Kshs 1,200,000/=iv.Damages in lieu of an apology Kshs 1,000,000/Total Kshs 13,200,000/=v.The damages will attract interest at court rates from the date of judgment until payment in full.vi.Since liability was already decided, the costs shall follow the event and are awarded to the plaintiff.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 7TH DAY OF OCTOBER, 2022. ………….…………….J. K. SERGONJUDGEIn the presence of:……………………………. for the Plaintiff……………………………. for the Defendant