[2022] KEHC 1351 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL CASE NO. 142 OF 2011

HON. BISHOP MARGARET WANJIRU KARIUKI ......PLAINTIFF

VERSUS

CAROLINE MUTOKO..............................................1ST DEFENDANT

NAIROBI STAR LIMITED......................................2ND DEFENDANT

JUDGMENT

By a plaint dated 15th April 2011, the Plaintiff, Hon. Bishop Margaret Wanjiru Kariuki, brought an action against the defendants, Caroline Mutoko and Nairobi Star Limited, regarding an article in a newspaper written by the first defendant and published by the second defendant. The Plaintiff is seeking the following reliefs:-

a) General, aggravated and/or exemplary damages for libel.

b) An injunction restraining the defendants either by themselves, their servants or agents from further publishing or causing to be published words defamatory of the plaintiff.

c) An order that the defendants do make a full and unqualified apology, and such apology to be given the widest possible circulation and publication, in the two leading newspapers namely; the Standard and the Daily Nation.

d) Costs of the suit.

e) Interest on (a) above at court rates.

The cause of action arose from the publication published on Monday, 19th April, 2010, through an Article in The Star Newspaper titled “DID THE GLORY LEAVE”, which according to the plaintiff was false, malicious and defamatory. Given that the Plaintiff's claim is predicated on that article, it is necessary to reproduce it in its entirety:

“DID THE GLORY LEAVE?

I have watched with shock and embarrassment as the re-count of votes for Starehe has taken place over the past few weeks. I was in denial for weeks that this woman, this Bishop, this mother, this self-proclaimed “better-than-all-of-you” Christian was as flawed as anyone else. Margaret Wanjiru (pictured left) should be ashamed.

All that fuss and celebration and arrogance about how wonderful she is, and yet, all along she knew she never won that election fairly and I say she knew because there was no other reason she went looking for Maina Njenga and his followers.

She wasn't bringing souls to Jesus, it was a calculated move to ensure her political survival.

She knew she was due for a by-election and knowing that her so-called love for Jesus didn't win her sufficient votes in 2007, she went looking for a partner and a force that would spread fear in her favour.

Let's cut the crap, Margaret Wanjiru is a businesswoman first, a politician second and she uses the name of Jesus to advance the two interests. Simple.

But why am I surprised? Hasn't she lied about most everything leading up to this election and beyond.

She lied that she got pregnant with a boyfriend she didn't know, yet now we know she was married and was married until the day Kamangu died.

We even cheered and clapped when she reduced that man to a jigger infested joke (me included) but are those the actions of a Christian?

Her entire life story is a perfected lie. The witchcraft, the washing toilets, the trips to heaven like to see (how Jeff Koinange sits there and listens to this madness, I'll never know); her victorious win of the prosper Starehe election- it's all lies.

Her lies are typical of people who perfect lies for self-aggrandisement. She wants to appear to be more than she really is.

Margaret Wanjiru has a right to do whatever she wants, go into business, appoint her son the boss at the ministry she serves, tell us she went to heaven for a few hours, join ranks with the Mungiki, but the truth should still be told so we know who she really is and not who she wants us to believe she is. So far, all she’s done is fabricate half-truths and sadly (and I am sad because I expected so much more from her) we now get to see her for what she really is. Power hungry and money hungry all cloaked in the name of Jesus.

I'm embarrassed because I'm one of those women who like to see another strong woman prosper, but, I also want her to be honest about her prosperity and the utterances she makes in public. I secretly admired Margret Wanjiru, now I feel sold-out.

I'm told that according to the law, Maina Kamanda can be declared winner without a by-election, so we wait to see what the judges will rule this week - I hope see another they rule in his favour.

And now that it's clear Margaret Wanjiru didn't win that election, I'd like her to do the honorable Christian thing and refund to the people of Kenya the salary she has earned since 2008 and stop telling us how to vote.

Given the fact that she doesn't respect our wishes or our vote, she shouldn't be sticking her neck out, telling us what to do. Shame, Margaret, shame on you.

I'm as fallible as the next person, I'm no saint, but I really looked up to you and today you've let down many women and many of your followers.

Looks like Kamanda had the last laugh after all.”

The plaintiff contends that the defendants in publishing the article, were actuated by extreme malice, contempt, spite and the publication was calculated to injure, discredit, humiliate and destroy the Plaintiff's personal image. The plaintiff pleaded the following particulars of the defendants’ falsehood, malice and spite:

i. The said article in its entirety was deliberately and well calculated to inflict the greatest possible harm, damage, injury, embarrassment, ridicule, contempt and hatred on the Plaintiff's personal image.

ii. The Defendants deliberately, maliciously and callously employed false facts and used strong emotive and libelous language calculated to maximize the injury and hatred on the Plaintiff's standing in the society.

iii. The Defendants knowing the extent of their coverage, maliciously and spitefully circulated the impression to the effect that the plaintiff is dishonest, immoral, a liar, a hypocrite, purely for the sake of maligning and destroying the plaintiff's image.

iv. The said article was meant to demonstrate to the society that the plaintiff is a cheat, a thief, a dishonest and corrupt individual, who is unfit to hold any public office.

v. The said malicious and false publication was meant to tarnish the plaintiff's name and also to discredit the plaintiff to the extreme so as to diminish the plaintiff’s credibility.

vi. The defendants were motivated not only by extreme malice but also by other ulterior motives knowing very well that the Plaintiff would probably contest future elections.

vii. The defendants knew and/or ought to have known that by writing, publishing and disseminating the said false and malicious libellous article, the same would cause extreme and grave suffering, embarrassment, ridicule, hatred, pain and agony to the plaintiff, her family, friends, peers and her congregation.

viii. That the said article was calculated to injure the religious sentiments of the plaintiff and her congregation and indeed, the same infringed and injured the plaintiff's freedom of association and worship with her congregation.

ix. That the defendants were not motivated by the desire to communicate the truth and/or good journalism but by extreme malice and hatred all calculated to injure the plaintiff's personal image and otherwise good character.

x. The defendants deliberately failed to adhere to and/or practice the responsibility that comes with free press but opted for gutter journalist in their quest to "say what they like" without caring the consequences thereof to the plaintiff's reputation.

xi. The aforesaid article was given unnecessary wide and extensive prominence so as to destroy the Plaintiff’s personal image.

xii. The defendants knowingly and maliciously published the article complained of as they must have believed that that economic gain from the said libellous article would far much outweigh the damages that may ultimately be awarded to the plaintiff against the defendants in an action such as the present one.

The plaintiff contends that by reason of the said publication of the said article her reputation, integrity, personality and credibility has been greatly and irreparably injured, and as a consequence thereof, the plaintiff has suffered considerable distress, humiliation, public ridicule and embarrassment, loss and damage.

The claim is denied by the defendants. Through their joint statement of defence dated 18th May 2011 and filed on 19th May 2011, the defendants admit publication of the said article but deny that the content was libellous and malicious or highly defamatory of the Plaintiff’s repute, personality, credibility and standing in the society. The defendants contended that the words complained of were fair comment, and relied on the following facts:

i. There was an election petition filed against the Plaintiff as one of the Respondents, questioning the validity of the Plaintiffs election as the Member of Parliament for Starehe Constituency;

ii. The election court ordered a recount of all votes cast in the said election;

iii. The results of the vote recount indicated that, despite being declared the duly elected Member of Parliament for Starehe, the Plaintiff herein did not have the majority votes. On recount it was found that the Plaintiff had 34,874 votes whilst her opponent Maina Kamanda had 49,310 votes;

iv. The Plaintiff was at all material times, a Bishop and head of the church known as the Jesus is Alive Ministries (JIAM) and a politician; Maina Njenga, the former head of the outlawed Mungiki Sect and other former members of the said sect, were at all material times members of the Plaintiff's church, JIAM.

The defendants further pleaded that the 1st defendant apologized to the plaintiff during an open court hearing of Election Petition No. 5 of 2008 and the plaintiff unconditionally accepted the same and that the 1st defendant made a subsequent apology published in her column on 3rd May, 2010.

Plaintiff’s evidence

At trial, the plaintiff relied on her witness statement dated 15th April 2011 and produced as exhibits, five 5 documents filed in support of her case. Counsel for the defendant objected to the production of the fifth document, on the ground that the it was marked “WITHOUT PREJUDICE” hence inadmissible as evidence, whose objection was upheld by the ruling of Lady Justice L. Njuguna of 5th July, 2018. Therefore, the documents produced as exhibits were: Excerpt of The Star tabloid newspaper of 19th April 2010 as P.EXH 1, Excerpt of The Star tabloid newspaper of Monday 3rd May 2010 as P. EXH 2, Excerpt of proceedings in Nairobi High Court Election Petition No. 5 of 2008 as P. EXH 3 and a copy of the demand letter before action dated 19th October 2010 by the Plaintiff’s advocates to the defendant as P. EXH 4.

The testimony by the plaintiff, PW1, largely adopted the written statement with additional testimony that she was neither a member nor had any connections to the Mungiki Sect. Also, the oral apology tendered, during the election proceedings, was to the Judge and to the Court but not to the Plaintiff. Moreover, the apology printed on the 1st defendant’s column on 3rd May 2010 was not directed toward her, the plaintiff.

The plaintiff maintained that the article, subject to the suit, touched on the proceedings of the ongoing Election Petition. She complained to the Election Court, through her then advocate, Mr. Chacha Odera, about the article. The 1st defendant apologised to the court but did not apologise to her. PW1 stated that at the time of publishing the article, there was an order given for scrutiny and recount of votes which had not yet been finalized. Also, PW1 testified that though she had heard of Mr. Maina Njenga, who attends her church and had baptized him, she was neither aware he was a self-confessed member of the Mungiki nor that Mungiki was a proscribed sect. She also could not recall when she had baptized Mr. Maina Njenga.

PW1 maintained that though the record of the election court proceedings indicate the first defendant apologized to the court and the parties to the proceedings, PW1 did not inform the election court that she was disappointed by the first defendant's failure to apologize. Further, the 1st defendant was ordered to publish an apology by the court but PW1 did not report to the court that the first defendant failed to publish a suitable apology.

The plaintiff further testified that she had to check the church records to confirm whether Mr. Maina Njenga was a member of her church. Also, the Elections were nullified because some forms were missing and for unaccountability of non-used ballot papers hence there was discrepancy of papers. The Judge, therefore, ordered a by-election. PW1 testified that no one was accused of rigging the election. Also, the outcome of the by-election was that she won by a land slide. PW1 maintained that the article was on her reputation as a bishop and that there was no apology made to her neither was there an indication that she had accepted the apology made to her in court.

Elizabeth Njeri Kariuki testified as PW2. She testified that she was a business lady. She also adopted her witness statement dated 30th April 2018 as her evidence in chief with a little amendment to paragraph 15 of her witness statement to read “... survival and not for winning souls”.

On cross examination, PW2 informed the court that she was the Plaintiff’s sister and worked in the Plaintiff’s church. Though she was aware of the then ongoing election petition, she did not know whether the article arose from the proceedings. Further, she knew the plaintiff was declared the winner of the 2007 Election but was unaware that the court had declared that the plaintiff was not validly elected. PW2 testified that she had never seen the judgment of the election petition delivered in 2010. PW2 confirmed that Mr Maina Njenga had been baptized by the Plaintiff and was a member of the church, but she was not aware whether he was associated with the Mungiki sect.

Defence evidence

The 1st defendant, Caroline Ndinda Mutoko, testified in support of the defence case as DW1. She adopted her witness statement dated 3rd February 2012 as her evidence in chief and produced as exhibits, two documents filed in support of the defence’s case. There are the Judgment of Justice P. M. Kihara delivered on 30th July 2010 in Election Petition 5 of 2008, William Maina Kamanda v Margaret Wanjiru Kariuki and 2 othersas D. EXH1 and article titled “Radio Presenters Apologise to Wanjiru in Court” published by the Daily Nation on 26th April 2010 asD. EXH2.

DW2 further testified stated that though she had some influence, she could not gauge the level. DW2 stated that she didn’t seek clarification from the plaintiff before writing the article. She confirmed that she was summoned to Justice Kihara’s chambers where she apologised to both the judge and the plaintiff. DW2 also testified that she apologised in three forums: she apologised on air, she printed an apology on the star a week later, and three days later she apologised on air. DW2 stated that she did not receive a demand letter. It is her evidence that the article was due to the court proceedings. She was summoned to the court and the plaintiff was in court when she apologised. The plaintiff nodded after Justice Kihara asked her to accept the apology.

SUBMISSIONS

Parties agreed to file written submission. The Plaintiff had earlier filed a statement of Issues dated 26th October 2012 on 29th January 2012 which listed the following issues:

1. Whether the words complained of as stated in paragraphs 6 of the Plaint were falsely, spitefully, contemptuously and/or maliciously published by the Defendants.

2. Whether the said words complained of are defamatory or were capable in their true ordinary meaning, by innuendo or otherwise of bringing or terms pleaded in paragraphs 7 and 8 of the Plaint or at all.

3. Whether as a result of the words complained of and appearing in paragraph 6 of the Plaint, the Plaintiff has suffered damage to her reputation, been ridiculed and her character and standing lowered as stated in the Plaint or at all.

4. Whether the Plaintiff has suffered damage as a result of the publication complained of.

5. Whether the Plaintiff is entitled to general damages for libel against the Defendants and if so, what is the quantum thereof.

6. Whether the Plaintiff is entitled to Aggravated and/or Exemplary damages for libel against the Defendants and if so, what is the quantum thereof.

7. Whether the Plaintiff is entitled to an injunction against the Defendants as prayed in prayer (b) of the Plaint or at all.

8. Whether the Plaintiff is entitled to an apology as prayed in prayer (c) of the Plaint or at all.

Counsel for the plaintiff filed written submissions in support of their position. It was submitted that the plaintiff proved her case on a balance of probabilities. The published statements in the article were defamatory. Counsel referred to the book Gartley on Libel and Slander, 11th Edition at page 38that defines a defamatory statement as: -

“one which is to the claimant’s discredit; or which tends to lower him in the estimation of others or causes him to be shunned or avoided; or exposes him to hatred, contempt or ridicule ….”

Counsel further submitted that for a plaintiff to prove defamation, the courts will have to be satisfied to the elements of defamation which include: the statement was malicious, it was published and finally it lowered one’s reputation before right thinking members of the society.

Malice can be inferred from the publication. The words written by the 1st defendant were disproportionate with the facts. The 1st defendant herself admitted that the publication was bad and that she was very apologetic to the plaintiff in so publishing. There was no truth in the 1st defendant’s publication. Counsel referred to the case of J.P MACHIRA T/A MACHIRA & CO. ADVOCATES VERSUS WANGETHI MWANGI & ANOTHER (1998) eKLR where the Court of Appeal stated that malice can be inferred from a deliberate or reckless or even negligent ignoring of facts. Counsel also referred to the case of PHINEAS NYAGA V. GITOBU IMANYARA [2013] eKLR where the court stated: -

“Evidence of malice may be found in the publication itself if the language used is utterly beyond or disproportionate to the facts. That may lead to an inference of malice but the law does not weigh in a fair balance and it does not follow merely because the words are excessive, there is therefore malice. Malice may also be inferred from the relations between the parties before or after publication or in the conduct of the defendant in the course of the proceedings.”

Counsel for the plaintiff further submitted that there is no dispute that on 19th April 2010 the 1st defendant published the alleged defamatory statement in the Star Newspaper. This publication has millions of readers with both hard copy version and softcopy version available online. Further, the 1st defendant admitted that she published the defamatory statement.

Counsel also submitted that the said publication injured the plaintiff’s reputation. It destroyed her reputation as a religious figure and leader. It also led to some of the believers failing to trust her teachings and boycotting or leaving her church. It demonstrated the plaintiff as a cheat, a dishonest and corrupt individual who is unfit to lead any congregation. Most of her fellow worshippers in her church boycotted her church services and her church feared that she was working with the Mungiki sect. In the political arena, the publication led to the plaintiff’s political competitors using it as a tool to discredit her and ultimately, she lost her Starehe Constituency seat in the general elections that followed since she had been elected on the platform of her good and sound religious background. The witness called by the Plaintiff buttressed the above and added that many believers in the Plaintiff's church thought she was not fit to lead them and left the church altogether.

On the issue of damages, counsel for the plaintiff submitted that the court, in libel matters, has the discretion to award damages. Counsel was guided by the provisions of Section 16 A of the Defamation Act of Kenya which states that for the award of damages in any action. for libel, the court shall assess the amount of damages payable in such amount as it may deem just.

Counsel referred to the case of Johnson Evan Gicheru v Andrew Morton & another [2005] eKLRwhere the court was guided by the checklist on libel given in the case of Jones v Pollard (1997) EMLR 233 which include:

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.

On the issue of quantum, counsel invited the court to consider the position held by the person and the extent to which their reputation was damaged. Counsel relies on the case of Heziekiel Oira v Standard Limited & another [2016] eKLRwhich involved the defamation of Heziekiel Oira, a former Corporation Secretary of the Kenya Broadcasting Corporation (KBC), former legal advisor to the African Union of Broadcasters. The court held that it would have awarded the plaintiff Kshs 6,000,000 general damages and Kshs 1,000,000 aggravated damages had malice been proved. Counsel urged the court to award the sum of Kshs.10 million as damages for the injury, damage and harm suffered by the plaintiff.

Submissions by The Defence

Counsel for the defendant submitted that the issues for determination include:

a. Whether the Plaintiff has proved her case on a balance of probabilities.

b. In the event the answer to (a) above is in the affirmative, whether the defence of fair comment is available for the Defendants.

c. Whether the Plaintiff is entitled to the reliefs sought.

d. Who should bear the costs of this suit?

On the issue of the Plaintiff proving her case on a balance of probabilities, it was submitted that the plaintiff had the duty to establish the essential elements of defamation as stated in the Court of Appeal Case of SELINA PATANI AND ANOTHER V DHIRANJI V. PATANI [2019] EKLR which are:

(i)the article complained of was defamatory,

(ii) it referred to the plaintiff, it was published by the defendant, and

(iii) that the statement was false.

Counsel submitted that whereas the article referred to the plaintiff and was published by the 2nd defendant, the article was neither defamatory nor actuated by malice. Regarding the impugned article, counsel submitted that in its ordinary meaning, it is not defamatory as it revolves around true facts. When the article was published, there was an ongoing election recount and the results were that the Plaintiff was not validly elected as the Starehe Constituency Member of Parliament. The Defendants produced as evidence a Judgement by P. M. Kariuki J, (as he then was), delivered on 30 July 2010 in Election Petition No. 5 of 2008; William Maina Kamanda vs Margaret Wanjiru and 2 others where the Court held that the plaintiff garnered 34,874 votes while the opponent had 49,310 votes. Therefore, to an ordinary reasonable person, the article is not defamatory.

Counsel was guided by the cases of SMW v ZWM [2015] EKLRand MUSIKARI KOMBO V ROYAL MEDIA SERVICES LLIMITED [2018] EKLR which outlined that the test of whether a statement is defamatory is dependent on what a reasonable ordinary person reading the statement would perceive.

On who a ‘reasonable’ or ‘ordinary’ person is, counsel referred to the holding in the case of MIGUNA V STANDARD GROUP LIMITED & 4 OTHERS [2017] EKLR:

“The answer is the reasonable man. This rules out on the one hand persons who are so lax or so cynical that they would think none the worse of a man whatever was imputed to him, and on the other hand those who are so censorious as to regard even trivial accusations (if they were true) as lowering another's reputation or who are so hasty as to infer the worst meaning from any ambiguous statement. It is not these, but the ordinary citizen, whose judgment must be taken as the standard”.

Regarding malice, it was counsel’s submission that the language of the article does not exhibit any malicious intention to damage the reputation of the Plaintiff. The article was a fair comment made by the 1st Defendant as it regarded a vote recount that resulted to the holding that the plaintiff did not emerge victorious in the 2007 elections. Further the conduct of the defendant does not show malice as shown through the apology made in court and a published apology made in their daily publication. Counsel cited the case of PHINEHAS NYOGAH V GITBU IMANYARA [2013 EKLR where it was held:

“Malice here does not necessarily mean spite or ill-will but recklessness itself may be evidence of malice. Evidence of malice may be found in the publication itself if the language used is utterly beyond or disproportionate to the facts. That may lead to an inference of malice but the law does not weigh in a hair balance and it does not follow merely because the words are excessive, there is therefore malice.Malice may also be inferred from the relations between the parties before or after publication or in the conduct of the defendant in the course of the proceedings. Malice can be founded in the publication itself if the language used is utterly beyond the facts”.

According to counsel, the defendants’ publication qualified to be defence of fair comment. Guided by cases of NTAGBOGA V EDITOR-IN-CHIEF THE NEWVISION NEWSPAPER AND ANOTHER [2004] 2 EA 234 and NATION MEDIA GROUP LIMITED & ANOTHER V ALFRED N. MUTUA [2017] eKLR, it was submitted that for the defendants to succeed in the defence, they need to prove the following requirements:

1. The comment must be on a matter of public interest

2. The comment must be recognizable as comment, distinct from an imputation of fact

3. The comment must be based on facts, which are true or protected by privilege

4. The comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made.

5. The comment must be one which could have been made by an honest person, however prejudiced he might be, and however exaggerated or obstinate his view

Counsel submitted that the vote recount of the Starehe Constituency Parliamentary Seat was a matter of great public interest. Therefore, the 1st defendant was justified to comment on the ongoing recount whose results, the opponent emerged the winner. The comment was made on the basis of facts. Counsel submitted that there was an ongoing election petition questioning the validity of the Plaintiff’s election as the Member of Parliament for Starehe Constituency. The election court ordered a vote recount. The result of the vote recount revealed that the Plaintiff had gathered 34,874 votes while the opponent had 49,310 votes. Justice Kihara Kariuki (as he then was) held that the plaintiff was not validly elected as the Member of Parliament for Starehe Constituency. This is what formed the context of the publication. Also, the plaintiff was at all times a Bishop and head of the church known as Jesus is Alive Ministries (JIAM) as well as a politician. Moreover, it was also a fact and a matter of public notoriety that Maina Njenga was the head of the outlawed Mungiki Sect and former members of the Mungiki Sect were members of the Plaintiff’s church. The article, though harsh, was a fair comment contextualized around true facts and any person who knew the plaintiff would have made a similar comment, perhaps even harsher.

On the issue of damages, counsel for the defendants submitted that the Plaintiff failed to prove her case therefore the suit should be dismissed. However, if the plaintiff is entitled to any damages, then the same should be to vindicate on to the society and console one for the wrong done and should not appear to subdue the freedom of expression and the press. Counsel was guided by the cases of HENSON NIGEL GRAHAM V STANDARD GROUP LIMITED [2020] EKLRandKOIGI WAMWERE V ATTORNEY GENERAL [2015] EKLR.In the event the plaintiff ought to be entitled to any damages, counsel proposed the court to exercise its own discretion as per section 16A of the Defamation Act. Counsel proposed an award of between Kshs 2,500,000 and Kshs. 2,700,000 to be sufficient as general damages. However, there was no vexing circumstances to warrant the award of aggravated damages.

Analysis and Determination

Analysing the evidence on record, the issues for determination are

1. Whether the Plaintiff has proved her case on a balance of probabilities.

2. Whether the defence of fair comment is available to the defendant

3. Whether the plaintiff is entitled to the reliefs sought.

1. Whether the Plaintiff has proved her case on a balance of probabilities

Defamation consists of publication to a third party of matter which in all circumstances would likely affect that person adversely in the estimation of reasonable members of the public generally. Defamation law is concerned with the protection of an individual's reputation. InScott v Sampson (1882) 8 QBD 491, Cave J while elucidating the nature of the right at stake in a defamation action observed:

“Speaking generally 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 if such false statements are made without lawful excuse, and damage results to the person of whom they are made, he has a right of action.”

Section 79 of the preceding constitution stated:

“(1) Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information without interference (whether the communication be to the public generally or to any person or class of persons) and freedom from interference with his correspondence.

(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision -

(b) that is reasonably required for the purpose of protecting the reputations, rights and freedoms of other persons or the private lives of persons concerned in legal proceedings, preventing the disclosure of information received in confidence, maintaining the authority and independence of the courts or regulating the technical administration or the technical operation of telephony, telegraphy, posts, wireless broadcasting or television;”

Further, the protection of one’s reputation is also enshrined in the Constitution under Article 33 (1) (a) as read together with Clause (3) thereof both of which provides as follows: -

“33(1) (a) Every person has a right to freedom of expression, which include freedom to seek, receive or impact information or idea.

33(3) in exercise of the right to freedom of expression every person shall respect the rights and reputation of others.”

As a result, a claimant bringing a defamation action must satisfy the court on the following elements:

1. the defendant published the words complained of;

2. the words complained of referred to the claimant;

3. the words complained of must be defamatory to the claimant

4. the words complained of is false and/or malicious;

According to the Court record, it is undisputed that the defendants wrote and published the article in question. Additionally, it is not disputed that the article referred to the plaintiff. What is in dispute is whether the words complained of are defamatory and malice can be inferred therefrom.

So then, what is a defamatory statement? As expressed in the Court of Appeal case of S M W v Z W M [2015] eKLR, a defamatory statement is a statement which tends to lower a person in the estimation of right thinking members of society generally or one which cause him to be shunned or avoided.

The test whether the words are defamatory and whether they refer to the plaintiff is objective. According to Halsbury’s Laws of England 4th Edition Volume 28at Page 23;

“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.”

Counsel for the Plaintiff argues in their submission that the defendant's publication used words that were disproportionate to the facts. DW1 admitted that the publication was erroneous and expressed her regret to the plaintiff. Nothing in what the first defendant wrote was true. In response to the plaintiff's submissions, counsel for the defendant argued that the article is not defamatory in the ordinary sense because it is based on true facts. When the article was published, an election recount was in progress, with the outcome that the Plaintiff had not been validly elected as the Starehe Constituency Member of Parliament.

In a case of libel, such as this one under determination, this Court must consider the entire publication under consideration and attempt to view it through the eyes of a reasonable, right-thinking member of society acting as a third party. Unless innuendo has been pleaded in the pleadings, a Court must give the words used in a publication their ordinary and natural meaning when determining whether the publication is harmful to the Plaintiff's reputation.

The standard for determining who a reasonable person is in a libel case was illustrated in JEYNES V NEWS MAGAZINES LTD [2008] EWCA CIV 130:

“The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available.”

In RICHARD OTIENO KWACH v STANDARD LIMITED & ANOTHER [2007] eKLRthe court observed that “words are defamatory if they involve a reflection upon the personal character or official …. reputation of the Plaintiff.”

In light of the disputed article and the undisputed facts in this case, the following issues can be resolved as true: there was an ongoing election petition at the time of publication of the article. The judge, on the application of the Petitioner, ordered for vote scrutiny and/or vote recount which was done over a period of seven weeks. At the conclusion of the exercise, among other findings from the report of the then Chief Magistrate and Deputy Registrar of the court, the Petitioner had 49,310 votes and the plaintiff (respondent in the election petition) had 34,874 votes. The judge nullified the election.

I have read the article in question. When compared to the undisputed facts in the case, the following can be said about the plaintiff in the eyes of a reasonable and right thinking person at the time the publication was made: the plaintiff is flawed and should be ashamed because she knew she lost the election therefore seeking out Maina Njenga and his supporters; she uses the name of Jesus to advance her business and political interests; she also conspired with someone to instill fear in the populace and garner additional votes; additionally, the plaintiff is a liar who fabricates half-truths; she is a power-hungry and money-hungry woman masquerading as a follower of Jesus; She should return the money she has earned since 2008.

By reading the article, it becomes clear that the plaintiff is painted as flawed, a liar, hypocrite, power-hungry, and money-hungry individual. True, the article begins with a reaction to the vote recount. The author, however, continues to attack the plaintiff’s conduct and morals. Further, the article implies that the plaintiff is working with the Mungiki. It was the defense's responsibility, if they truly believed the words were true, to justify their publication. According to PW2, the publication resulted in the church losing members and funding. PW1 testified that she suffered loss of respect from her constituents and flock. Without doubt, the 1st defendant’s words were defamatory. I am satisfied that the plaintiff has established that she was defamed.

The next issue is whether the defence acted with malice. It was observed in the case of Phineas Nyaga vs Gitobu Imanyara (2013) eKLR that: -

“The words must be maliciously published and malice can be inferred from a deliberate or reckless or even negligently ignoring of facts. See J P Machira Vs. Wangethi Mwangi and Nation Newspapers Civil Appeal No. 179 of 1997…

… Malice here does not necessarily mean spite or ill-will but recklessness itself may be evidence of malice. Evidence of malice may be found in the publication itself if the language used is utterly beyond or disproportionate to the facts. That may lead to an inference of malice but the law does not weigh in a hair balance and it does not follow merely because the words are excessive, there is therefore malice. Malice may also be inferred from the relations between the parties before or after publication or in the conduct of the defendant in the course of the proceedings. Malice can be founded in the publication itself if the language used is utterly beyond the facts. The failure to inquire into the facts is a fact from which inference of malice may properly be drawn. Any evidence, which shows that the defendant knows the statement was false or did not care whether it be true or false will be evidence of malice. See Godwin Wachira vs. Okoth [1977] KLR 24; J P Machira vs. Wangethi Mwangi (supra).”

Additionally, I am guided by Lord Nicholls of Birkenhead's pronouncement in Albert Cheng and Another v Tse Wai Chun Paul [2000] 10 BHRC 525 at 530:

“MALICE

That is not the end of the matter. Even when a defendant has brought his case within these limits, he will not necessarily succeed. The plaintiff may still defeat (rebut) the defence by proving that when he made his comment the defendant was, in the time-hallowed expression, ‘actuated by malice’.

It is here that the storm clouds begin to appear. In ordinary usage malice carries connotations of spite and ill-will. This is not always so in legal usage. In legal usage malice sometimes bears its popular meaning, sometimes not. It is an imprecise term. Historically, even within the bounds of the law of defamation, malice has borne more than one meaning. Historically, defamation lay in publishing the words complained of 'falsely and maliciously'. In this context malice meant merely that publication had been a wrongful act, done intentionally and without lawful excuse: see Bayley J in Bromage v Prosser (1825) 4 B & C 247 at 255. ”

Counsel for the defendants contended that the impugned article's language does not imply malice because it was a fair comment made by the first defendant regarding an ongoing vote recount. Additionally, the defendants' conduct does not demonstrate malice, as they apologised in court and even published an apology in their daily publication. I take a contrary position to that argument. By reading the publication, it appears as though the first defendant was mocking the plaintiff. Beyond commenting on the vote recount, the publication casts doubt on the plaintiff's conduct. Additionally, the failure to conduct due diligence prior to publishing implies malice. I read the published apology; it was addressed to Justice Kihara. The apology makes no reference to the Plaintiff. The High court case, Phineas Nyaga Vs Gitobu Imanyara (2013) Eklr, quoted by both parties, outlines circumstances in which malice can be inferred or drawn. The 1st defendant did not make a simple comment on the result of the vote count. The article seems to suggest that the plaintiff stole the votes and influence the election organizing body to inflate her votes. This is not fair comment.

There is no evidence on record to establish that the defence contacted the plaintiff prior to publishing the article, nor is there any evidence to support the article's allegations. Failure to inquire into the facts is a fact from which malice can be properly inferred. Malice can be deduced from the publication's language. There is a lot of reference to the plaintiff and her church. The plaintiff church or moral standing was not the subject of the election petition.

2. Whether the defence of fair comment is available to the defendant

The defendants invoked the fair comment defence in their pleadings. It was asserted that the ongoing vote recount was a matter of great public interest. As a result, the first defendant was justified in commenting on the ongoing results of the recount in which the plaintiff's opponent had more votes. It is well established law that once a plaintiff has satisfied his or her burden of proving a defamatory claim, the burden of proof shifts to the defendant to prove the words complained of were fair comment.

To establish a successful defence of fair comment, it must be established that the subject of the comment is a legitimate matter of public interest; that the facts upon which the comment is based are true; and that the comment is fair in the sense that it is relevant to the facts and expresses the writer's honest opinion. A writer may not exceed those bounds and ascribe sinister motives that are unsupported by the facts.

The plaintiff may defeat the fair comment defence, however, by demonstrating that the comment was not made honestly or was motivated by malice. Lord Nicholls of Birkenhead noted in Albert Cheng and Another v Tse Wai Chun Paul (supra) that the plaintiff may still rebut the defence of fair comment by establishing that the defendant's comment was motivated by malice. Lord Phillips also affirmed this in JOSEPH AND OTHERS V SPILLER AND OTHERS [2010] UKSC 53 AT 952:where he stated: -“These five propositions relate to elements of the defence of fair comment in respect of which the burden of proof is on the defendant. Cheng’s case was primarily concerned with a sixth element—absence of malice. A defendant is not entitled to rely on the defence of fair comment if the comment was made maliciously. The onus of proving malice lies on the claimant”

In this instance, the law governing fair comment is as follows: For comment to be justified as fair, it must appear as commentary and not be mingled with the facts to the point where the reader is unable to discern between report and commentary. In this case, the defendants have failed to establish the fair comment made in the aforementioned article and the facts upon which the fair comment is based. Though the defendants contended in their defence that the issues raised were of public interest in light of the ongoing vote recount ordered by Justice Kihara, the comment/opinion went beyond that. They used the platform to unjustifiably attack the plaintiff's reputation. Additionally, because malice has been established, the defence of fair comment fails, as the plaintiff has established malice on the part of the defendants.

Nothing is more critical than allowing writers to discuss any public subject freely and openly. However, a writer may not overstep those bounds and impute disreputable motives that are not justified. Regarding the then vote recount, the defendant was not to proceed further than giving the outcome of the recount. Any interpretation of the results of the recount or scrutiny were to be done by the court.

3. Whether the plaintiff is entitled to the reliefs sought

After concluding that the plaintiff has established her case on a balance of probability, the plaintiff is entitled to relief.

The record indicates that the defendant was served with a demand letter but no apology was extended to the plaintiff. The apology on record that was published was solely addressed to Justice Kihara. According to the Daily Nation's article titled "Radio Presenters Apologize to Wanjiru in Court," published on 26th April 2010, though the first defendant apologised to the plaintiff, the record demonstrates the judge advised the presenters to publish an appropriate apology for their misconduct. The article, however, was addressed to the judge, not the plaintiff. The court seems to have felt offended by the publication.

Regarding, the quantum of damages payable to the plaintiff, I am guided by the case of KIPYATOR NICHOLAS KIPRONO BIWOTT –V- CLAYS LIMITED & 3 OTHERS (HCCC 1067 of 1999), where the court stated: -

“In assessing damages the court must look at the whole conduct of the plaintiff and the defendant from the time of the publication until the time of judgment; the court will look at the conduct of the parties before action, after action and in court during trial; and that malicious and insulting conduct on the part of the defendant will aggravate the damages to be awarded.”

Also, In the English case of JOHN –V- MGN LTD (1996) 2 ALL E.R, 35 the court stated as follows: -

“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.”

The Court of Appeal in the Raphael Lukale v Elizabeth Mayabi & another [2018] eKLR,held that “the test is to maintain a similar level of awards in similar cases, bearing in mind inflationary trends.”

Given the foregoing guidelines and authorities, and in light of the plaintiff's award of Kshs. 3,000,000 inHCCC No. 445 of 2012 Margaret Wanjiru Kariuki v Nairobi Star Publications Limited [2016] eKLR and Kshs. 2,500,000 in HCCC 446 OF 2012 Margaret Wanjiru Kariuki (MP) v Nation Media Group Limited [2021] eKLRwhich cases relate to the same facts, I believe that an award of Kshs. 3,500,000 in general damages and Ksh. 500,000 aggravated damages is adequate compensation. The defendants herein were the main source of the defamatory information.

I am cognizant of the fact that the publication date was 19th April, 2010, which is more than ten (10) years ago, and in my opinion, an injunction or apology would be belated and insignificant. The two prayers are hereby denied.

As a result, judgment is entered for the plaintiff against the defendant as follows: -

a) General damages - Kshs. 3,500,000

b) Aggravated damages - Kshs. 500,000

Total - Kshs. 4,000,000

c) Costs of the suit

d) Interest from date of judgment at court rates.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 16TH DAY OF MARCH, 2022

S.CHITEMBWE

JUDGE