[2022] KEHC 596 (KLR)

Kutima v Royal Media Services Ltd & another (Civil Case E001 of 2021) [2022] KEHC 596 (KLR) (10 June 2022) (Judgment)

Neutral citation: [2022] KEHC 596 (KLR)

Republic of Kenya

In the High Court at Kakamega

Civil Case E001 of 2021

WM Musyoka, J

June 10, 2022

Between

Philip M. Kutima

Plaintiff

and

Royal Media Services Ltd

1st Defendant

Fred Akali

2nd Defendant

Judgment

1. At the time of the filing of the instant suit, and the writing of this judgment, the plaintiff was, and is, the Deputy Governor for Kakamega County. He initiated the suit herein by a plaint, dated 16th February 2021. He avers that the defendants defamed him through a news bulletin aired on Mulembe FM, on 29th December 2020. He seeks general damages, exemplary and aggravated damages, a retraction and apology, costs and interests.

2. The suit is defended. It is denied that the alleged defamatory statements or reports were published, and, in the alternative, if they were, then they must have been made in good faith, in public interest and without malice. It is contended that the publication was privileged, and amounted to fair comment, and the defendants set up the defences of qualified privilege and fair comment. They pray for dismissal of the suit.

3. The case was heard viva voce, on 29th September 2021. The plaintiff presented three witnesses, who testified virtually; while the defendants called one witness, the 2nd defendant, who testified in person.

4. Prisca Mbeyo, PW1, was the first witness for the plaintiff. She was an employee of Real Analytics. She testified on how she provided an audio clip to Mulembe FM, which they had captured, and saved in their servers. The clip was shared in MP4 Form, and saved in a flask disc. The same was played in court. She prepared a certificate on what she had done. She produced both the audio clip and the certificate as exhibits. She stated that the audio clip was in Luhya language, but she did not translate it, saying that that was done by someone else.

5. Philip Museve Kutima, the plaintiff, testified as PW2. He stated that 2nd defendant had called him on 29th December 2020 to ask him if he had been involved in an accident at Malava, where his vehicle had killed a Baraza Lufwalula. After that he received several calls from various persons, enquiring whether his vehicle had killed someone. At 9. 00 PM he heard the audio clip, whose byline was that his vehicle had been involved in a vehicle, and his bodyguards had pushed a person, who was hanging on the vehicle, he fell and was ran over by the vehicle. He explained that on that material day, he had attended a funeral in the Malava area. He lingered at the venue for a while, talking to the people. As he was leaving, he found people wailing, and when he got closer, he saw someone lying unconscious. The person was then rushed to the Malava Sub-County Hospital by his chase car. He stated that he learnt that the person responsible for the incident had made a report at the Malava Police Station.

6. During cross-examination, he stated that he first got information about the clip at 7. 00 PM, but he did not see the broadcast then, and that he listened to it at 9. 00 PM. He stated that the report said that he owned the accident vehicle. He asserted that he refuted the claim when the 2nd defendant telephoned him, stating that he gave him an account of what had actually transpired, but the 2nd defendant still went ahead to broadcast that his vehicle had killed someone. He stated that in the clip he had refuted that allegation, but the defendants still went ahead to broadcast. He stated that the conversation with the 2nd defendant was not aired, and said that it should be relied on. He asserted that he did not know how the deceased got injured, for he, the plaintiff, was at the home of the person being buried, when the deceased got injured outside that compound. He said that the report had cast him as callous and corrupt, and that it had injured his reputation. It portrayed him as a Deputy Governor who had no regard for the people. He stated that he was elected by the people, and that they trusted him, and that when it was broadcast that he had killed a voter, that affected him and his reputation. According to him, that showed him as someone who could not be trusted. He added that he had served as a professor, and his students must have viewed him as a killer.

7. Luka Shikanga Otipo,PW3, was the person who translated the video clip. He stated that he had signed a certificate of translation. He had also attended the burial on 29th December 2020, with the plaintiff, and was part of the plaintiff’s convoy, as he was the Deputy Director of Communication, Office of the Deputy Governor. He testified that after the burial was over, the plaintiff took some time to talk to mourners. On their way out of the compound, they came by a crowd of people. They stopped and stepped out of their vehicles. They saw a young man lying on the ground. The plaintiff, then instructed his staff to pick him up and rush him to hospital in his chase car. He was taken to a hospital at Malava, where he died while undergoing treatment. He said he heard of the video clip, when some people called him, to confirm if the plaintiff had been involved in an accident. He later heard the broadcast at 9. 00 PM. He stated that none of the vehicles belonging to the plaintiff hit the deceased. He said that he translated what was aired in the broadcast, but he could not recall whether the plaintiff also talked in the clip.

8. Fred Akali, the 2nd defendant, DW1, conceded that he aired the clips that were put in evidence. He stated that in the broadcast he had stated that the vehicle involved belonged to the plaintiff. He said that they had gotten news from the ground, and what was broadcast was based on the sources. He stated that it was after they got the details, that they contacted the plaintiff. He said that the broadcast talked of the plaintiff’s car, but the sources did not mention the plaintiff’s car. He said that they had details of the accident, but those details were not placed before the court as evidence. He said that his sources were protected. He said that they did not do a follow up, after the plaintiff informed them that his vehicle was not involved, and they did not do so on account of pressure of work.

9. At the close of oral hearings, the parties filed written submissions. The plaintiff’s written submissions are dated 25th October 2021 and 26th November 2021; while those by the defendants are dated 1st November 2021.

10. In the submissions of 25th October 2021, the plaintiff has framed six issues: whether the statements broadcast by the defendants were defamatory of him whether the broadcast was malicious; what was the effect of the defamatory statement; what was the effect of the defendants failure to call a witness to adduce evidence; whether he was entitled to the damages he has sought; and quantum. He has gone on to make arguments on these issues, and cited case law. He submits that the defendants are liable, and asks the court to award Kshs. 10, 000, 000. 00 for general damages, Kshs. 2, 000, 000. 00 for aggravated damages and Kshs. 1, 000, 000. 00 exemplary damages. In their written submissions of 1st November 2021, the defendants argue their case under four subdivisions. The first is introductory. They submit that there was no evidence of the publication; no documents were produced by the plaintiff at the trial; and there were problems with the dating of the plaint and the verifying affidavit, which suggested at the time the affidavit was being sworn, there was no plaint in existence to be verified. The second subdivision identified the prayers sought in the plaint, and the defences advanced by the defence. The third summarizes the evidence. The fourth subdivision discusses the law. The last part concludes that the plaintiff had not proved his case, and the same ought to be dismissed; and that, should the court find in favour of the plaintiff, an award ofKshs. 500, 000. 00 would suffice. There is citation of case law and statutory provisions. The plaintiff’s submissions of 26th November 2021 are a rejoinder to those by the defendants. He addresses three issues. The first is about production of documents, that is to say of the audio clip and the certificate of translation, and the adoption of the witness statements. The second is about the dates on the plaint, the verifying affidavit and the witness statements. The third is on quantum. He has cited case law to support the arguments made in his rejoinder.

11. I will address first the technical issues raised by the defendants, for they call into question the validity and authenticity of the suit. Before I can consider the suit on its merits, I should determine whether I have before me a valid suit in the first place.

12. The issue relates to the plaint and the affidavit verifying it. The plaint is dated 16th February 2021, and the affidavit verifying it was sworn on 11th February 2021. The contention is that the affidavit was verifying a plaint which was not in existence on 11th February 2021, and, therefore, there is no valid suit for me to determine. The plaintiff concedes to the anomaly. He was cross-examined on it, and explained that it was probably an error on the part his Advocates, and his Advocates appear to take the same position, in the written submissions they have filed on his behalf. They submit that the plaintiff confirmed that he filed the suit, at the oral hearing. The provisions of the Civil Procedure Act, Cap 21, Laws of Kenya, and Rules are clear, that a plaint ought to be verified by an affidavit of the persons purported to be the plaintiff. This is intended to have the plaintiff owns the case, to obviate instances of a suit being initiated without the knowledge and concurrence of the alleged plaintiff. An affidavit can only verify an existing plaint. In other words, the plaint must precede the verifying affidavit. For, by the affidavit, the plaintiff would be confirming that they had authorized the drawing of the plaint, they had read the plaint and they were authenticating the same by way of the affidavit of verification. An affidavit ceases to be a verifying affidavit if it purports to verify a plaint, or other pleading, which is not in existence as at the date of the purported swearing of the so called verifying affidavit. The conclusion to draw on this case is that the plaintiff swore the verifying affidavit of 11th February 2021, when the plaint of 16th February 2021, was not in existence, for it could only have come into existence on the date it was signed and dated by its drawer, which was the 16th February 2021. Secondly, it would mean that the plaintiff had not seen and read the plaint of 16th February 2021, and he was verifying contents that were non-existent. To that end, it would mean that the affidavit, of 11th February 2021, was false. It was a lie, to the extent that it was verifying what was not in existence. A valid plaint is that which is signed and dated. To lie on oath is an offence, for which the offender can be prosecuted. A suit whose foundation is a lie or a false statement cannot be possibly be valid, for an illegality cannot provide foundation for validity.

13. Similar arguments were advanced with respect to the witness statements. They were dated 11th February 2021. The dating of witness statements is not so critical to the validity of the suit, as they are not meant to verify the plaint. They are statements of the facts that the parties propose to place before the court by way of oral evidence or testimony, essentially an advance disclosure of what the witnesses would be coming to tell the court. They can bear dates prior to or after that on the plaint. Witness statements can be prepared at any time prior to the oral hearing of the matter, including at the time the plaintiff gives instructions to the Advocate, and they may bear a date prior to that of the plaint and verifying affidavit for that reason. The dating of the witness statements in this case, therefore, was of no consequence to the validity of the suit.

14. The defendants argue that the defect in filing an affidavit which verifies a plaint that did not exist, at the time of the swearing of the affidavit, was not one of the technicalities of procedure that Article 159 of the Constitution of Kenya, 2010, can cure. It is asserted that rules of procedure are handmaidens of justice, and that Order 4 Rule 2 of the Civil Procedure Rules, which requires the filing of such affidavit, is in mandatory terms. It is submitted that the suit should be dismissed, as the plaint of 16th February 2021 was not verified. The plaintiff insists that his affidavit of 11th February 2021 verified the plaint of 16th February 2021. The correct provision is actually Order 4 Rule 1(2) of the Civil Procedure Rules, and not Order 4 Rule 2.

15. Article 159 of the Constitution can only protect a process that is incorrect or improper or irregular, but not one with a tinge of illegality or even criminality. An affidavit is a document that is made before a Commissioner for Oaths, under oath, and statements made under oath are in solemn form. Making of false or untrue statements on oath attracts criminal sanctions. That would mean that anyone appending a signature to an affidavit must be certain that what they are committing themselves to is true and correct. I have seen the impugned verifying affidavit. It is clear that it was sworn a date way ahead of the date of execution of the plaint. The plaint on record was signed by the Advocate who drew it on 16th February 2021. That is when it is deemed to have come into existence. It is the date when it became authentic and valid. It could only be verified by an affidavit executed on the same date or thereafter. In addition, I note that it was purported to have been sworn at Nairobi, before a Commissioner for Oaths, whose address was Kakamega. The address of the Commissioner for Oaths, as appears in the official stamp embossed on the affidavit, may suggest that the commissioning was done at the address indicated, in this case Kakamega. The plaintiff herein was categorical, at the oral hearing, that he executed the affidavit before an Advocate in Kakamega. The affidavit, no doubt, then states a lie about itself, that it was executed in Nairobi, when the reality was that it was commissioned at Kakamega. See Regina Munyiva Nthenge vs. Kenya Commercial Bank Limited [2005] eKLR (Wendo J), Peter Ndeya & others vs. Samuel Nyoike t/a Same Agencies[2006] eKLR (Kasango J), CMC Motors Group Limited vs. Bengeria Arap Korir Trading Marben School & another [2013]eKLR (Kasango J).

16. An affidavit is a document in solemn form. It is not in the same league with the plaint. An error in an affidavit, unlike in a plaint, cannot be corrected by mere amendment. It has to be withdrawn, and substituted with a compliant one. It is that solemn. The affidavit should be taken with the seriousness it should carry, it is a statement on oath. It is not just some pleading. There is more weight to it. Irregularities about its contents or form or around where it was executed go to the core of it. If it was executed at a place other than where it purports, then it becomes a false statement on oath, which cannot provide any validity to the pleading or process it is intended to verify. I am surprised that the plaintiff is still insistent that the said affidavit is a proper affidavit, which breathes life to the plaint herein in the circumstances. Once the issue of the execution of the affidavit was raised, the most prudent thing for the plaintiff to have done was to ask for adjournment, to regularize the situation, which could only be achieved by withdrawing the impugned affidavit, and substituting it with a proper affidavit, verifying the plaint of 16th February 2021. See Solomon Software (EA) Ltd & another vs. Microsoft Corporation t/aGreat Plains Business Solutions[2002] eKLR (Khaminwa CA), Peter Kipyegon Kirui vs. Agricultural Dev. Corporation & 2 others[2007] eKLR (Ochieng J) and Flystar Limited vs. The Delphis Bank Limited [2015] eKLR(Githinji, Musinga & J. MohammedJJA). The consequences of having a false or defective verifying affidavit is that the same exposes the plaint to the risk of being struck out, under Order 4 Rule 1(6) of the Civil Procedure Rules, for failure to comply with Order 4 Rule 1(2). The plaintiff appears to treat the matter rather casually, yet the consequences are dire. Where a party fails or neglects to take advantage of the option to correct the anomaly, the court would have no option but to invoke Order 4 Rule 1(6) of theCivil Procedure Rules, and strike out the pleading. The plaintiff opted not to exercise that option at the trial, of offering to withdraw the offending affidavit, and replacing it with a compliant one. I shall have no option but to strike out the plaint.

17. The document is on oath, and an oath is about trust and honesty. It ought to be the plaintiff’s bond concerning his honesty and sincerity. To lie on oath or tell untruths on oath invites criminal sanctions. The Black’s Law Dictionary, Tenth Edition, Thomson Reuters, 2014, St. Paul, defines an oath as follows:“A solemn declaration accompanied by a swearing to God or a revered person or thing, that one’s statement is true or that one will be bound to a promise. The person making the oath implicitly invites punishment if the statement is untrue or promise is broken. The legal effect of the oath is to subject the person to penalties for perjury if the testimony is false.”

18. The other argument by the plaintiff is that, when he took to the witness stand, he did what the verifying affidavit was meant to do, and that was to confirm that the plaint had been filed on his instructions. Could that cure the defect? I do not think so. The suit became incompetent the moment the plaintiff lodged a plaint at the registry, which was not accompanied by a verifying affidavit, for the purported verifying affidavit of 11th February 2021 was a nullity, for the reasons that I have given above. The suit was dead from the date of its filing. It could only be resuscitated through full compliance with Order 4 Rule 1(2) of the Civil Procedure Rules, by the filing of a proper verifying affidavit. The suit was filed through a process that was mired in unlawfulness, to the extent that the purported verifying affidavit of 11th February 2021 made false statements on oath. The statement by the plaintiff on oath, in open court on 29th September 2021, could not sanitize the situation, and cure the defect, so long as the affidavit, of 11th February 2021, remained on record, and continued to stain the process.

19. The finding and the holding that I make, with respect to compliance with Order 4 Rule 1(2) of the Civil Procedure Rules, is that the suit herein was incompetent from inception, to the extent that it was verified by a false affidavit. That should lay the matter to rest. As determination of the other issues would be merely academic, and, due to resource constraints, I shall not venture to determine them. In the circumstances, I shall dismiss the suit, with costs to the defendants.

DELIVERED DATED AND SIGNED IN OPEN COURT AT KAKAKMEGA THIS 10thDAY OF JUNE 2022. W. M MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Mr. Wabuko, instructed by PL Natwati & Company, Advocates for the plaintiff.Mr. Munyori, instructed by Kamau Kuria & Company, Advocates for the defendants.