[2023] KEHC 27239 (KLR)

Long Island Limited (Tapas Cielo Bar & Restaurant) v Mediamax Network Ltd & another (Civil Suit 79 of 2022) [2023] KEHC 27239 (KLR) (14 December 2023) (Judgment)

Neutral citation: [2023] KEHC 27239 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Suit 79 of 2022

DKN Magare, J

December 14, 2023

Between

Long Island Limited (Tapas Cielo Bar & Restaurant)

Plaintiff

and

Mediamax Network Ltd

1st Defendant

Sophie Njoka

2nd Defendant

Judgment

1. The Plaintiff filed suit on 19/7/2019 against the Defendant claiming for general damages for libel and aggravated damages.

2. The Plaintiff averred that on 25th July 2022, the 2nd Defendant published a report on digital media online under the bold heading being;Mombasa: Man Battered To Death For Urinating On Grass At TapasDavid Wokabi Kamau, a middle aged man allegedly murdered by guards at Nyali Centre, Mombasa in 2018, was battered to death for urinating on the grass, a Mombasa Court was told on Monday 25th July.Prosecution witness Yvette Adhiambo told Mombasa High Court that the Deceased was badly beaten by security guards outside TAPAS CLUB, an entertainment joint located inside Nyali Centre.Two guards, Hamisi Hare Karisa and Said Mwamuye are charged with Kamau’s murder. The court heard that on the day he was killed, the deceased was in the company of the witness and other friends.They had just left Tapas Club on January 7, 2018 after merry making when Kamau excused himself to answer a call of of nature near the joint’s parking lot where confrontation ensued after one of the guards tried to stop him from urinating, Adhiambo recounted.The witness who broke down severally as she recounted the events of the night said the victim thereafter came back to the car and began to drive out of the premises. However, he was unable to leave as the guard and seven others barricaded the gate and when he got out of the car to inquire why they were blocking him from leaving, they attacked him using rungus, kicks and blows.Immediately, he left the club’s premises, about 7 guards armed withy rungus descended on him. I was unable to come to his aid since they also threatened me that the same fate would befall me in case I tried to intervene. By now, a huge crown had gathered as the Deceased lay unconscious, a teary Adhambo narrated.Adhiambo told the court that she was advised by a stranger to rush the Deceased to a nearby hospital as he was in a bad condition.I rushed him to Jocham Hospital whwere he was receied by medics and attened to the following day we were advised to report the matter to the police. By now he was in a coma and the hospital informed his relatives that he needed to be transferred to Mombasa Hospital where he was admitted in the intensive care unit (ICU), Adhiambo narrated.

3. The Plaintiff averred that the bold title depicted the garden and grass at Tapas Restaurant where the man was brutally murdered and thus was defamatory as was calculated to injure the good reputation of Tapas Cielo by exposing it to hatred, contempt and ridicule.

4. The Defendants entered appearance and filed their Defence dated 29th November 2022.

5. It was averred in the Defence that the alleged publication was a fair comment, a matter of public interest and privileged. Further that the information constituted court proceedings in a pending Criminal Case.

6. The 1st and 2nd Defendants stated that the Plaintiff has materially misstated and misrepresented the facts giving rise to this claim against the 1" and 2'd Defendant and in particular, the evidence adduced did not give rise to the particulars of defamation as alleged and set out particulars of misstatement and misrepresentation as doth: -a)The Plaintiff has failed to obtain sufficient, reliable data and information to enable them to draw reasonable conclusions from there.b)The Plaintiffs averment that the publication allegedly written and published by the 1st and 2nd Defendants was intended and calculated to injure the good reputation of Tapas Cielo.c)The Plaintiff has failed to show how the 1st and 2nd Defendants have caused it to lose business.

7. The issues were joined.

Evidence 8. The Plaintiff called PW1, Rabatia Sailesh Jadavi who relied on his witness statement and a bundle of documents dated 22nd August 2022 and produced in court. He stated that he learnt from someone that there was an online publication.

9. On cross-examination, it was his case that he was the co-director of the Plaintiff.

10. He testified that she did not know the 2nd Defendant and had no grudge with her. The witness testified that the publication was intended to damage their reputation by portraying that their employees had beaten up and caused the death of a banker at their doorsteps.

11. According to him, the Defendants declined to correct the story by retracting the caption and publishing the true facts within their newspaper. He also testified that he got feedback on the publication from their ten clients.

12. It was his evidence that he knew someone lost his life but whoever was responsible was not their employees. To sum up, it was his case that he had not highlighted the differences between the publication and the court proceedings. The Plaintiff indicated that the impugned letter in its natural and ordinary meaning, the words used, and as an innuendo, meant that Plaintiff was a common criminal. He set out 10 meanings associated with the words.

13. The Defendants called PW1, Sophie Njoki, the 2ND defendant who adopted her witness statement and produced a bundle of documents as evidence. It was her case that the publication ran on 25th July 2022 at 19. 50hrs for two minutes and was submitted to the editorial team in Nairobi following court proceedings in Mombasa High Court Criminal Case Number 2 of 2018.

14. The witness testified that they had attended the court session and witnessed Yvette Adhiambo testifying in the said criminal case. They reported her evidence. She denied that any reasonable person would receive the words to be defamatory.

15. It was her case that she knew the 1st Defendant ran no e-paper on any platforms. She stated that any the caption was of absolute privilege and justification as a matter of public interest and any correction would be irrelevant. She stated that the words did not give the impression that there grass at Tapas.

16. On his part, DW2, Chrispine Magak testified relying on his witness statement that he was the lead editor of the 1st Defendant. It was his case that the publication only meant that the two accused persons had been charged with murder following the death of the victim at Tapas Club within Nyali Centre and had denied the charges.

17. That the court proceedings were captured truly as was stated in court. He stated that it was not true that the 1st Defendant runs any e-paper and the two minute publication was only run on K24 Website on 25th July 2022 and was absolutely privileged, fair and accurate and was without any malice.

18. The Defendants relied on the court proceedings in Mombasa HCCRC No. 2 of 2018 to plead justification and privilege as their defence.

Submissions 19. Parties filed respective submissions. On the part of the Plaintiff, it was submitted that the Plaintiff had on a balance of probabilities proved defamation against the Defendants.

20. Counsel submitted that bold title depicted the garden and grass at Tapas Restaurant where the man was brutally murdered and thus was defamatory as was calculated to injure the good reputation of Tapas Cielo by exposing it to hatred, contempt and ridicule.

21. It was thus submitted that the Defendants breached the Plaintiff had the opportunity to correct the publication but declined to do so and were malicious in publishing the content in the media. Reliance was placed on the cases of Samuel Ndungu Mukunya v National Media Group Limited (2015) eKLR, where it was held as doth: -“The defendants had a duty to protect the plaintiff’s inherent dignity. They had an opportunity, upon the clarification provided by the plaintiff and Chief Justice to correct or delete the obviously untrue and misleading information published of and concerning him, which no doubt affected him. see article 35(2) of The Constitution “every person has the right to correction or deletion of untrue or misleading information that affects the person.”

22. The Plaintiff relied on J.P Machira T/A Machira & Company Advocates v Wangethi Mwangi & another [1998] eKLR. The quotes are note contextualised.

23. They submitted that the reporting was unfair and false and was painted to demean the Plaintiff. It was submitted that the Plaintiff was entitled to the damages as prayed in the Plaint. They argued that the story talked of outside Tapas which is on the first floor while there are other businesses, which they named. They were naming them for the first time in submissions. We must remember that submissions will never take the place of evidence. At least it is not denied that the plaintiff’s business is at the point where the defendant is alleged to have had a killing take place. In the case of Robert Ngande Kathathi v Francis Kivuva Kitonde [2020] eKLR, the court, Odunga J as then he was stated as doth: -“Consequently, in legal proceedings, evidence ought not to be introduced by way of submissions. As was held by Mwera, J (as he then was) in Erastus Wade Opande vs. Kenya Revenue Authority & Another Kisumu HCCA No. 46 of 2007:“Submissions simply concretise and focus on each side’s case with a view to win the court’s decision that way. Submissions are not evidence on which a case is decided.”19. The same Judge in Nancy Wambui Gatheru vs. Peter W Wanjere Ngugi Nairobi HCCC No. 36 of 1993 expressed himself as follows:“Indeed and strictly speaking submissions are not part of the evidence in a case. Submissions, to this court’s view, are a course by which counsel or able litigants focus the court’s attention on those points of the case that should be given the closest scrutiny in order to firmly establish a claim/charge or disprove it. Once the case is closed a court may well proceed to give its judgement. There are many cases especially where parties act in person where submissions are not heard. Even some counsel may opt not to submit. So submissions are not necessarily the case.”

24. The Court proceeded in the above case by quoting a decision in the case of Ngang’a & Another vs. Owiti & Another [2008] 1KLR (EP) 749, the Court held that:“As the practice has it and especially where counsel appears, a Court may hear final submissions from them. This, strictly speaking, is not part of the case, the absence of which may do prejudice to a party. A final submission is a way by which counsel or sometimes (enlightened) parties themselves, crystallise the substance of the case, the evidence and the law relating to that case. It is, as it were, a way by which the Court’s focus is sought to be concentrated on the main aspects of the case which affect its outcome. Final submissions are not evidence. Final submissions may be heard or even dispensed with. But the main basis of a decision in a case, we can say are: the claim properly laid, evidence fully presented and the law applicable.”21. As stated by the Court of Appeal in Daniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi & Another [2014] eKLR:“Submissions cannot take the place of evidence. The 1st respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed there are many cases decided without hearing submissions but based only on evidence presented.”

25. On the part of the Defendants, it was submitted that there was only one publication of the court proceedings and the article constituted fair and accurate news report published in good faith and without intent to damage the Plaintiff’s reputation. They relied on Sections 7 (1),(2)&(3) of the Defamation Act to support the assertion that the publication was subject to qualified privilege as it pertained to reporting before a court exercising jurisdiction and without malice. The said sections provide as doth: -“Qualified privilege of newspapers(1)Subject to the provisions of this section, the publication in a newspaper of any such report or other matter as is mentioned in the Schedule to this Act shall be privileged unless such publication is proved to be made with malice.(2)In an action for libel in respect of the publication of any such report or matter as is mentioned in Part II of the Schedule to this Act, the provisions of this section shall not be a defence if it is proved that the defendant has been requested by the plaintiff to publish, in the newspaper in which the original publication was made, a reasonable letter or statement by way of explanation or contradiction, and has refused or neglected to do so, or has done so in a manner not adequate or not reasonable having regard to all the circumstances.(3)Nothing in this section shall be construed as protecting the publication of any matter the publication of which is prohibited by law, or of any matter which is not of public concern and the publication of which is not for the public benefit.

26. It was also submitted that the freedom of the media was guaranteed under Article 34 of the Constitution and there was no proof that the information was misleading because, according to the Defendants, it was true and a fair comment.

27. They relied on the defence of justification to submit that the allegations complained of were true. Reliance was placed inter alia on the case of Ernest Omondi Owino v Felix Olick & 2 Others (2021)e KLR to anchor the defence of Justification.

28. It was submitted that the Plaintiff was not entitled to damages and the suit should be dismissed with costs.

Analysis 29. I have considered the pleadings and evidence in support and opposition of the respective cases.

30. The issue before me for determination is whether the impugned publication by the Defendants, in the circumstances of this case, was defamatory to the Plaintiff.

31. As succinctly put by this Court 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.”

32. Similarly, Windeyer J. In Uren John Fair Fax & Sons Pty Ltd 117 CLC 115 at 115 stated.“Defamation is the publication of a statement which tends to lower a person in the estimation of right thinking members of society generally, or which tend to make them shun or avoid that person.’’

33. The words leading to the controversy in this case were stated as follows:Mombasa: Man Battered To Death For Urinating On Grass At TapasDavid Wokabi Kamau, a middle aged man allegedly murdered by guards at Nyali Centre, Mombasa in 2018, was battered to death for urinating on the grass, a Mombasa Court was told on Monday 25th July.Prosecution witness Yvette Adhiambo told Mombasa High Court that the Deceased was badly beaten by security guards outside TAPAS CLUB, an entertainment joint located inside Nyali Centre.Two guards, Hamisi Hare Karisa and Said Mwamuye are charged with Kamau’s murder. The court heard that on the day he was killed, the deceased was in the company of the witness and other friends.They had just left Tapas Club on January 7, 2018 after merry making when Kamau excused himself to answer a call of of nature near the joint’s parking lot where confrontation ensued after one of the guards tried to stop him from urinating, Adhiambo recounted.The witness who broke down severally as she recounted the events of the night said the victim thereafter came back to the car and began to drive out of the premises. However, he was unable to leave as the guard and seven others barricaded the gate and when he got out of the car to inquire why they were blocking him from leaving, they attacked him using rungus, kicks and blows.Immediately, he left the club’s premises, about 7 guards armed withy rungus descended on him. I was unable to come to his aid since they also threatened me that the same fate would befall me in case I tried to intervene. By now, a huge crown had gathered as the Deceased lay unconscious, a teary Adhambo narrated.Adhiambo told the court that she was advised by a stranger to rush the Deceased to a nearby hospital as he was in a bad condition.I rushed him to Jocham Hospital where he was received by medics and attended to the following day we were advised to report the matter to the police. By now he was in a coma and the hospital informed his relatives that he needed to be transferred to Mombasa Hospital where he was admitted in the intensive care unit (ICU), Adhiambo narrated

34. I have perused the words side by side with the court proceedings in Mombasa High Court Criminal Case No. 2 of 2018. I note that the words replicated the testimony by one Yvette Adhiambo on 25th July 2022, a Prosecution witness in the murder case. Indeed, it was the testimony of the 2nd Defendant that she was in court during the testimony following the court proceedings.

35. Before delving into the details of the law in this case, I note the Plaintiff contending under paragraph 6 of the Plaint that the publication directly linked the Plaintiff to the death of the victim which was false since the incident did not occur within the doorsteps of the Plaintiff’s premises but in the parking lot of Nyali Centre.

36. To this, the Defendants’ response is that the publication was to the effect that the Accused persons were charged in the criminal case for the murder of one David Wokabi Kamau as reported in Court by a witness in that case on 25th July 2022 that the injuries leading to demise were inflicted by security guards stationed at Nyali Centre on the night of 7th January 2018 as the deceased exited the Centre after merry making at Tapas Club within the Nyali Centre.

37. In this case, there is no dispute as to publication. The dispute related to who published. They state that the publication was on an online platform but not K-24 epaper. The words were published but not as pleaded. But whether the publication was defamatory to the Plaintiff is highly contested.

38. 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.

39. To my mind, the source of the information was proceedings of a court of law. The Court of Appeal in Nation Media Group & Another vs. Hon. Chirau Mwakwere –Civil Appeal No. 224 of 2010 stated that a claimant in a defamation suit ought to principally establish in no particular order:i.The existence of a Defamatory Statement;ii.The Defendant has published or caused the publication of the defamatory statement;iii.The Publication refers to the Claimant.

40. As stated elsewhere in this Judgement, the circumstance of this case bestow upon this court the task of determining whether, in fact the words as published were defamatory to the Defendant.

41. Looking at the broadcast in question the ordinary meaning of the words uttered therein is that on 25th July 2022, the Mombasa High Court Criminal Court was told that a man was allegedly murdered by Security Guards in 2018 at Nyali Centre for urinating on grass at Tapas Club.

42. Reading the whole caption, I cannot find any reference to the alleged murderers as being employees or people acting on behalf or instructions of Tapas Club, the Plaintiff. In my view, the Defendants tendered uncontroverted evidence of how that story was merely a publication by the reporter confined to what transpired in the court and lacked malice. The court proceedings in the criminal case mirror the publication. The incident occurred while a reveller was leaving Tapas pub. He was killed by guards on the grass at Nyali Centre. There is splitting of hairs whether that was outside Tapas bar. I find and hold that it will be tautological to imagine that the grass outside Tapas was inside the bar while the publication is clear that it is outside. Only a moron will imagine that there is grass growing inside the building, outside the bar in first floor.

43. The story was a continuation of the narration that the deceased had left the bar and was killed just outside. I find absolutely no untruths in the statement. The Publication has not attributed any wrongdoing to the Plaintiff. If for any reason a crime is committed outside the court, can the court be in any way responsible or feel the heat?

44. The second aspect is the matter relates to the reporting of the proceedings in court. I have read the entire proceedings and the impugned act. I cannot get any difference other than semantics. The story was factual in every respect. There was no malice. Having analysed the impugned statement vis vis the court proceedings produced in this court emanating from the hearing in Mombasa High Court Criminal Case No. 2 of 2018, I find, in the first place that the words were not defamatory to the Plaintiff Club in any way.

45. I now turn to determine whether the Defence of qualified privilege is available to the Defendants. The Defence is espoused under Section 7 of the Defamation Act.

46. As was stated in the case of Kagwiria Mutwiri Kioga & another vs. Standard Limited & 3 others [2015] eKLR, the essence of this defence is an attempt to balance two competing but vital interests in society; the individual’s right to have their character and reputation protected and safeguarded from false, unwarranted and malicious or scurrilous attacks on the one hand, and the public’s right to know as exercised and fed by freedom of expression, which is an indispensable feature of a free and democratic society as well as a major tool for public accountability.

47. Further, in Reynolds vs. Times Newspapers [1999] 4 ALL ER 609 the House of Lords went on further to set out a criteria for determining whether a publication is subject to qualified privileged as herein under:“Depending on the circumstances, the matters to be taken into account include the following. The comments are illustrative only. (1) The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true. (2) The nature of the information, and the extent to which the subject matter is a matter of public concern. (3) The source of the information. Some informants have direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories. (4) The steps taken to verify the information. (5) The status of the information. The allegation may already have been the subject of an investigation which commands respect. (6) The urgency of the matter. News is often a perishable commodity. (7) Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed..(8) Whether the article contained the gist of the plaintiff’s side of the story. (9) The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact. (10) The circumstances of the publication including the timing.”

48. It is beyond peradventure that the published information was sourced from the proceedings in the Criminal Case at the High Court and had been subject to investigations. It did not contain the Plaintiff’s side of the story as it merely referred to: man battered to death for urinating on grass at Tapas Club, and… security guards outside Tapas Club. This cannot be interpreted to mean that the grass was property of Tapas Club and the security guards were employees, or agents of and acting under instructions of Tapas Club. This would be taking the meaning of the general words too far. I do not agree with the Plaintiff’s case in this regard.

49. In my view, the truth or otherwise of the statement was a matter before the High Court subject to the determination of that Court and was not in hands of the Defendants.

50. Similarly, I find no material that the Plaintiff placed before this court to impute the Defendant as having skewed or altered the information as presented by a witness in the Criminal Court as to establish the words as meaning to damage the reputation of the Plaintiff.

51. In the circumstances the Plaintiff has not established its case on a balance of probabilities. The case fails and is accordingly dismissed with costs of Ksh. 195,000/=.

Damages 52. The Court is obligated to assess damages even where a suit is dismissed. In the case of Lei Masaku versus Kalpama Builders Ltd [2014] eKLR, the court stated as doth:“It has been held time and again by the Court of Appeal that the court of first instance assess damages even if it finds that liability has not been established. To have casually dismissed the suit and failed to address the issue of damages in this case is a serious indictment on the part of the trial court. Both the trial court and this court must assess damages as they are not courts of last resort. Their decisions are appealable and the appellate court needs to know the view by the Court of first instance on the issue of quantum. To the extent that the trial court failed to assess damages, its judgment was a serious flaw and cannot stand. It therefore behooves this court to assess quantum.”

53. The plaintiff could not point to any tangible loss he did suffer. No right-thinking member shunned the plaintiff. If the plaintiff had succeeded on liability, an award of nominal damages would have sufficed.

54. In Halsbury’s Laws of England 4th Edition Vol 28 paragraph 1 the learned authors point out that:“In English Law, speaking generally, every person is entitled to his good name and to the esteem in which he is held by others, and has a right to claim that his reputation shall not be disparaged by defamatory statements made about him to a third person or persons without lawful justification or excuse. If a defamatory statement is made in writing or printing or in some other permanent form, the tort of libel is committed and the law presumes damage.”18:“if a person has been libeled without any lawful justification or excuse, the law presumes that some damage will flow in the ordinary course of events from the mere invasion of his right to his reputation, and such damage is known as general damages. Thus, a plaintiff in a libel action is not required to prove his reputation, nor to prove that he has suffered any actual loss or damage. The plaintiff is not obliged to testify, although is it a customary for him to do so, but, having proved a statement is defamatory of him and not excused by any available defence, he is always entitled to at least nominal damages. However, it is open to a plaintiff in a libel action to plead and prove special damage which he is entitled to recover in addition to general damages. In appropriate circumstances, he may also seek aggravated or exemplary damages.”

55. In the case of Jack J.A. Onong’no & another v Joseph Oyoo & another [2020] eKLR, the court, Justice Cherere stated as doth: -26. The principles guiding an award of damages in an action for libel were stated in the case of Johnson Evan Gicheru V Andrew Morton & Another 2005] eKLR where the Court of Appeal, adopted the guidelines given in Jones v Pollard [1997] EMLR 233-242 that no case is like the other. In the exercise of discretion to award damages for defamation the court has a wide latitude. The court must look at the whole conduct of the defendant from the time the libel was published down to the time the verdict is given. The court may also consider what the conduct of the defendant has been before action, after action, and in court during the trial.“27. Damages should be fairly compensatory in the light of the nature of the injury to reputation and should also appear realistic in all the circumstances. The English Court of Appeal decision in the case of John v MG Ltd [1996] I ALL E.R. 35 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.........”

56. I will have thus granted nominal damages of 500,000/= has the plaintiff been successful. Nevertheless, the suit stands dismissed with costs.

Determination 57. In the circumstances I make the following determination: -a.The Plaintiff’s suit lacks merit and is dismissed with costs of Kshs. 195,000/= to the Defendants.b.The costs be payable within 30 days.c.In default execution to issue.d.The file is closed.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 14TH DAY OF DECEMBER, 2023. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:Miss Muyaa for the DefendantMr. Tindi for the PlaintiffCourt Assistant - Brian