[2016] KEHC 6847 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL SUIT NO. 196 OF 2013

MIGUNA MIGUNA.................................................PLAINTIFF

VERSUS

THE STANDARD GROUP LIMITED................1ST DEFENDANT

THE STANDARD LIMITED..........................2ND DEFENDANT

JAMES SMART...........................................3RD DEFENDANT

CYRUS OMBATI........................................4TH DEFENDANT

THE KENYA TELEVISION

NETWORK (KTN)...........................................5TH DEFENDANT

JUDGMENT

Cause of action: Defamation

This suit is founded on the tort of defamation. The plaintiff Mr Miguna Miguna representing himself claims that he was defamed in his character and reputation by the 1st, 2nd and 5th Defendants which are Media Houses/entities and the 3rd and 4th Defendants who were at all material times to this suit the employees, agents and or servants of the 1st, 2nd and 5th Defendants.

By his plaint dated 28th May, 2013 and filed in court on the same date, the Plaintiff averred that the Defendants published and broadcast false and defamatory words concerning him. It was particularly pleaded that; the 1st 3rd and 5th Defendants in the 9 pm and 11pm news broadcast on the Kenya Television Network-(KTN)as follows:-

"The controversial writer and political activist Miguna Miguna is back in the news once again. Miguna has been questioned by the police in the city for allegedly assaulting his house help. Miguna's house help told the police she was assaulted and later chased away from the controversial former civil servants' Runda residence. Miguna on his part claims the house help was not a victim of assault but an agent of powerful forces out to have him killed. Miguna who is a former aide to Prime Minister Raila Odinga told journalists in his compound, he had learnt that the woman had been paid one million Kenyan Shillings by two bodyguards of two ministers to poison him."

The plaintiff averred that although he had issued an unequivocal denial and refutation of the false allegations and provided the gathered media at his Runda home with a coherent explanation of what had transpired, the Defendants only published and aired the following words of and concerning the Plaintiff during a separate broadcast by the 5th Defendant:-

"I called the police at 7. 45 am this morning after I had terminated her and reported the allegations that were given to me by my nephew. As a citizen I am entitled to that. I am not just entitled to protection by the police, I am also protected by law to be able to protect myself and I am appealing to the government, to not work for merchants of impunity. My life is in danger and I am requesting protection."

The plaintiff further pleaded that in the Standard Newspaper, Standard Online, Standard Digital and the Standard Mobile all owned, published, printed and distributed to hundreds of millions of readers and viewers globally by the 1st and 2nd Defendants, and published on 19th February, 2013 and which publications he alleged were still accessible to readers and viewers worldwide, the 4th Defendant authored and published in the print, electronic, online and mobile versions of the 1st and 2nd Defendants' news publication an article titled:

"Miguna in assault drama with house girl" the following words:-

"Police have questioned Miguna Miguna after his house girl claimed he had assaulted and dramatically chased her from his Runda home in Nairobi. However, Miguna outrageously claimed he kicked out the girl after learning she was planning to poison him. He also claimed his life is in danger and asked police to provide him with 24-hour security. Miguna...told journalists he learnt the house help had been paid Sh. 1 million by bodyguards of two ministers to poison him. Miguna has written two books in which he has made unsubstantiated accusations against the Prime Minister. The woman walked to Runda Police Station yesterday morning and claimed Miguna has assaulted and chased her out of his compound. She said the former aide had even refused to allow her to pick her clothes. It was then that a team of CID officers was sent to the compound to establish the truth of the matter...Police were reluctant in seeking his statement regarding the house girl's claims until when journalists, who had been tipped off the report, decided to go to Miguna's house, few kilometres away from the station. And after he recorded his statement with CID officers, Miguna gained confidence and invited journalists into his compound saying he has used his hard-earned money to build it."

The plaintiff claimed in his pleading that the said words were understood to mean and were capable of meaning that the Plaintiff is a criminal, violent, irrational and outrageous, dishonest, had been accused of physical assault, was being investigated by police for physical assault, manipulates the justice system and has no regard for the rule of law, is corrupt, is a coward and is boastful and arrogant. The Plaintiff averred that the said words were false, scandalous and disparaging to him professionally, politically and socially.

It was further alleged that the said statements were full of falsehood since it is in fact the Plaintiff who reported the conspiracy to kill him involving his house help to the Officer Commanding Police Division (OCPD), Gigiri, Patrick Mwakio and that it is him who invited the OCPD to his home to conduct investigations into the matter.

The Plaintiff alleged that as a result of the aforesaid publications and broadcasting, his character and reputation had been injured; that he had been exposed to public scandal, opprobrium, odium, contempt and he had experienced diminution of his stature and character as an advocate of repute in the legal profession, an author and in the estimation of the right thinking person’s generally. That he has suffered a general loss in his business and calling, and serious injury to his dignity and self confidence.

For the said allegations, the Plaintiff in his plaint sought General damages to the tune of KShs. 10,000,000/=, Special damages, Compensatory damages, Exemplary damages, Aggravated damages, costs of the suit, pre-judgment and post-judgment interest at court rates, an unequivocal retraction and an apology acceptable to him in such conspicuous manner as the offending publications and in terms to be approved by the Plaintiff, deletion and/or removal of all posts; publications and broadcasts of the offending statements that are still published in the Defendants' website, in the facebook; and in twitter accounts or walls and any other or further relief this court may deem fit to grant in the circumstances.

The Defendants filed a statement of defence denying the plaintiff’s claim that they falsely defamed him or at all. They contended that it was the plaintiff who made a press statement which he read out to journalists at his residence and later on sent to the Media Houses detailing an account that was reported as set out at his paragraph 8 of the plaint. further, that the plaintiff by his own pleadings expressly admitted having voluntarily given an oral and written press statement to the media on the subject account of his house help being offered money to poison him; that Raila Odinga was trying to kill him; that the house help made a report of assault to Runda Police station and that the plaintiff as well as Hesborn Otieno and Vincent Mwanga had recorded statements with police.

The plaintiff called Mr. Hesborn Otieno Elisha who testified on oath in dholuo language as (PW1) under the interpretation of Mr Adika, a Court Assistant, adopting his witness statement dated and signed 28th May, 2013 as his evidence in chief. The witness testified to the effect that he had known Millicent Atieno for more than three (3) years and that the said Millicent had worked for the Plaintiff for four (4) years. He stated that he was not aware of any problems that Millicent had had with the Plaintiff. Hesborn denied there being any physical contact between the Plaintiff and Millicent on 18th February, 2013 and or Millicent being chased by anyone. He stated that he was at the Plaintiff's residence the whole of that day and never witnessed any incident involving Millicent being chased. He added that Millicent mentioned to him Odhiambo and Anyul, the former bodyguards of the plaintiff as the people who told her that the plaintiff was being watched and that she told him that the agents of Raila Odinga were monitoring the Plaintiff and that they would ensure they defame the Plaintiff in the press. He stated that he was present in the plaintiff's homestead the whole day and had not witnessed any incident involving Millicent and any other person.

On cross-examination, PW1 acknowledged that in his statement to the police, he stated that Millicent refused to be escorted and ran away. He stated that Millicent ran away when the Plaintiff was calling the police and thought she was to be arrested. That he had been instructed to escort her and the policemen who were in the house who came along with Millicent did not tell him which police station they came from.

On being re-examined by the plaintiff, PW1 stated that Millicent came back to the Plaintiff's home with two police officers, Fida people and a journalist. That one of the police officers claimed that Millicent had not been paid her salary for 4 months but that the Plaintiff produced Co-operative Bank slips showing that he had deposited Millicent's salary in the Bank. That the police then went away after Millicent took off using a motor cycle. The witness denied that the police arrested the plaintiff and also stated that the police did not return to the plaintiff's residence.

The Plaintiff who was a pro se litigant testified on oath in English as (PW2) He relied on his self recorded typed statement dated 28th May, 2013 and also a handwritten statement which he stated he had also given it to the police as a complainant. The court adopted the plaintiff’s witness statement as his evidence in chief. In addition, the plaintiff testified that he was admitted to the Bar in 2008 and was in good standing. That he was also admitted as a Barrister at Law in Canada in February 1995. He has a Bachelor of Arts Degree in Political Science from the University of Nairobi in 1990, a Juris Doctor in Law from Osgood Law School in 1993 and in 2001 where he obtained a Masters Degree in Law. He is a Certified Mediator, Publisher and Commentator and eked a living from writing, offering consultancy services to clients in Kenya and abroad. That he was employed as a senior advisor to the former Prime Minister Hon Raila A. Odinga and left in 2011after he was suspended and that on being recalled he declined to take the job back. that he had recently written two books-"Peeling Back the Mask A Quest for Justice in Kenya" which he launched on 14/7/2012 and "Kidneys for the King: Deforming Status Quo in Kenya" which he launched on 16/12/2013.

The plaintiff lamented that from 2010 to date, the 1st and 2nd defendants had engaged in a consistent persistent orchestrated planned and deliberate defamation of him. That editors and reporters of the two defendants had published more than 50 separate articles disparaging and attacking the plaintiff and his character and reputation, integrity, while calling him names without provocation or justification whatsoever. That they had also concocted and falsely claimed what he had said to the contrary which prompted him to report them to the Media Council in 2010. That his complaint was heard and they were found culpable and fined 2 million Kenya Shillings which they refused to pay and also refused to apologise to him. That the first, 2nd and 4th defendants had engaged in deliberate orchestrated effort to attack his integrity so as to blur the effect of his just launched book. That the editors of the 1st and 2nd defendants, Mr Kipkoech Tanui and Mr Okech Kendo the Managing Editor of Quality Assurance continued attacking the plaintiff by writing things about him and that whenever he exercised his right of reply they refused to publish it.

The plaintiff testified that immediately he launched his book on 16th February, 2013, on 17/2/2013 he had an interview with Jeff Koinange of K24. That he had his Dinner that evening prepared by his house help as his family was abroad because of threats. That Millicent who had worked for him for 4 years (not 3 years- through a correction to his statement) lived in a detached servant's quarter while PW1 and a gardener lived with the plaintiff. That after the interview, he returned after 9 o'clock and Otieno PW1 opened for him the gate. The plaintiff checked his emails and slept without seeing Millicent because she was already in bed.

The plaintiff further testified that the following morning at 6. 45 am he heard a buzz on his phone and on checking he saw Otieno (PW1)had send him a message saying there was something he wished to tell the plaintiff before leaving as he was scheduled to travel. That that is when Otieno revealed to the plaintiff that he-the plaintiff was in danger and that the said Millicent had told the witness that she had been hired to kill the plaintiff. That following those revelations, the plaintiff terminated Millicent's services and retained her phone and called the police and the OCPD who went to his house and checked the phone and saw calls from the former Prime Minister’s Office.

That later, the plaintiff received a call from the 3rd defendant telling him that the latter had been informed that the plaintiff had been arrested and was at Gigiri Police Station. that the plaintiff then switched on the Television and saw news on KTN being broadcast by the 3rd defendant to the effect that the plaintiff had been arrested for assaulting his house help. The plaintiff produced as an exhibit the CD for the broad cast which the court has had the opportunity to view the content. That the plaintiff then called the anchor Mr James Smart and told him that he (the plaintiff) was in his house and had no idea what it was all about but that for the next 24 hours the same news continued to be aired. Further, that the 4th defendant neither called back nor text the plaintiff to verify the facts. That despite speaking to the 3rd defendant anchor; the latter continued to read the false news. The plaintiff testified that when he called David Ohito the Editor for the Standard Digital Newspaper, Mr Ohito responded that the newsroom had turned into a den of vipers and had made up all manner of allegations against the plaintiff. That the defendants also published the falsehoods in the national news section of its paper the Standard. That the following day the plaintiff on his own accord wrote a statement and issued it to the police denying the allegations and contending that he was the complainant against Millicent for plotting to poison him and gave to the press the same statement but instead the press went on to publish what they called a "saga" which story no other Media House ever published. The plaintiff therefore felt aggrieved and issued a libel notice which was never responded to by the defendants except that Abel Wanjala wrote saying they were investigating the matter and to date they had not reverted. He produced as an exhibit a copy of the statement he wrote and send to the media. The plaintiff produced the impugned publication and the libel notice and his statements as contained in his bundle and supplementary record of documents filed, as exhibits in support of his case. He prayed for general damages, exemplary damages and aggravated damages, costs and an apology and deletion of the information. He also produced a video broadcast of the alleged defamation and another video broadcast for events in 2012 showing demonstrators in Nyando lifting placards and burning his effigy as broadcast by the 1st defendant.

The Defence case was supported by the testimony tendered by DW1 Mr Cyrus Ombati who is also the 4th defendant a journalist working with the Standard Media Group. Mr Ombati testified that he had worked for the said Media House since 2003 and knew the plaintiff in this case. That as journalist, his role was to write a story on crime and investigations. That on the material day one police officer from Runda Police Station called the newsroom and reported that the plaintiff herein had assaulted his house help. The witness allegedly called the OCPD Mr. Patrick Mwakio of Gigiri who confirmed to him that the plaintiff had indeed called them saying that there was a problem at his house. DW1 then left the newsroom in a team of other reporters/journalists for Runda and congregated at the plaintiff's house where they found a Criminal Investigation Department (CID) car as the gate was closed. That the journalists tried to gain entry into the plaintiff’s compound but the gate remained closed and so he called his colleague James Smart of KTN an anchor who had the plaintiff's phone number and the anchor called the plaintiff. that the team remained at the plaintiff's compound until the police were leaving is when the plaintiff came out and told them that he knew they were send by Raila to malign his name. DW1 testified that the plaintiff told the journalists who were gathered in his home that his maid had been send to poison him and that he had thrown her out. That the plaintiff then gave the media team an interview and after that he roughed them up to leave the compound. DW1 clarified that the interview was being conducted at the plaintiff's compound after he opened the gate for the media. The 4th defendant stated that he called the Officer Commanding Police Division(OCPD) to clarify what the CID were doing at Mr Miguna’a home and the OCPD replied that they had gone to clarify the allegations by the maid. That they found 3 police officers with their driver at the plaintiff’s home and that the police had a bundle of papers of statements given to them by the plaintiff and that the plaintiff later send the media the statement through his email saying Raila was trying to kill him.

According to DW1, when they arrived at the plaintiff's gate the guards refused to open the gate and that it was not until they called James Smart who spoke to the plaintiff on phone that they were allowed in. That the following day the plaintiff called the media questioning them as to why they had not published his statement. The 4th defendant produced the statement dated 18th February, 2013 written by the plaintiff titled “RAILA ODINGA IS TRYING TO KILL ME “as send to the media as DEX1. He added that they were more than 10 journalists at the plaintiff’s house from different media houses. He also stated that the plaintiff Mr Miguna Miguna at that time was a household name.

Under cross examination by the plaintiff, DW1 confirmed that he was the 4th defendant and his date of birth was 14th April, 1980. That he studied at the University of Nairobi (UON)- Kenya Institute of Mass Communication from 2004-2007. That he has a Masters Degree in Communications and Sociology and graduated as a journalist in 2003 and as such he was a qualified journalist with 13 years experience having previously worked with the People Daily in 2001. The 4th defendant informed the court on being questioned by the plaintiff that he knew that he was governed by the Media Act and Code of Conduct for journalists. He confirmed that his employer was the Standard Group Ltd and therefore he writes in the the Standard Newspaper. He also confirmed that the Standard Ltd belonged to the Standard Group and that Kenya Television Network (KTN) was also owned by the Standard Group Ltd. he stated that he was a reporter and not a manager and that neither was he an editor. He denied belonging to the management or executive of the Standard Group. He stated that he did not decide what to publish or not since he did not hold any executive position and neither was he a member of the Management Board. He admitted going to the plaintiff's house and writing the story. He denied managing the incoming phone calls at the Standard Ltd but clarified that he received the call through his extension. He declined to disclose the name of the police officer who called him and further added that he did not know the telephone number that was used to call him at that time which was at about 10. 00am. He stated that he was given instructions to make the Runda visit by his editor whom he briefed after the visit. He stated that he went to Runda in a car provided by the said news editor and he realized that other KTN crew were also enroute to Runda to cover the same story so he went with them but that he did not know how they received the information and that even after calling the OCPD he did not know how the OCPD got the information although he gave the 4th defendant the name of Millicent a lady who was a complainant but that he did not know or talk to her. He also denied knowing his informer personally. Shown the witness statement by the plaintiff, DW1 stated that the statement confirmed that the plaintiff was the complainant against the woman who wanted to kill the plaintiff. He also confirmed that the publication was reading "saga"and in red saying it was written by the editor. He stated that the plaintiff's statement illustrated that there was drama although it did not state assault drama. DW1 restated that he understood the Media Act and Code of Conduct for journalists but that a heading of the publication was supposed to draw people's attention to the story. He confirmed finding the OCPD and the DCIO at the plaintiff's house and stated that they left in a huff.

DW1 further responded to the plaintiff’s questioning by stating that he also got information from social media that the plaintiff had been arrested but that he did not verify the arrest. He confirmed finding the plaintiff at his house. He also denied that the plaintiff had been arrested. He stated that he had not apologised to the plaintiff over the publication. He denied that his statement mentioned the arrest or that the maid had complained against the plaintiff. He denied calling DCIO but confirmed calling the OCPD. He denied being one of the hirelings propagating the negative reporting against the plaintiff. He stated that he believed the tip to be true. He denied that he knew the plaintiff personally. He stated that he wrote the term "outrageously" because the plaintiff was furious saying the girl had been paid a million shillings by Raila to poison him-the plaintiff. DW1 denied reviewing the plaintiff's two books.

At the close of the oral testimonies as taken by the court, the parties herein tendered written submissions in support of their respective positions. They also filed authorities in support of their rival arguments.

plaintiff's submissions

The plaintiff proposed the following as issues for determination and submitted on the same:-

Did the defendants publish the statements and words complained of?

What was the extent of the publication?

Did the statements and words mention the plaintiff by name or through innuendo?

Are the publications and broadcasts complained of defamatory?

Did the defendants admit liability, apologize and retract?

Are there any aggravating factors?

Is the plaintiff entitled to general damages and if so, how much?

Is the plaintiff entitled to compensatory or aggravated damages and if so, how much?

Is the plaintiff entitled to exemplary or punitive damages and if so, how much?

Should costs be taxed or fixed? if fixed, how much would be appropriate under the circumstances?

Is the plaintiff entitled to both pre-judgment and post-judgment interest on the awards?

What other orders are just under the circumstances (e.g. a general prohibition and/or injunction against the defendants from publishing and/or repeating the defamatory statements; publication of an unequivocal apology in prominent places in three national circulating newspapers as well as through two TV and radio stations at prime time)?

In settling the issues as framed above, It was the Plaintiff's submissions that; it is common ground that the Defendants published the words and statements complained of; the words specifically referred to him by name, occupation and other descriptions; the publications were by all the five Defendants; the 1st Defendant is the holding or parent company that owns the 2nd and 5th Defendants; the 2nd defendant owns and operates The Standard Newspaper including The Standard Digital, which published and widely disseminated in electronic, digital and hard copy versions all the words complained of including the aggravating factors pleaded; the 5th defendant is owned by the 2nd defendant; the 3rd defendant was at all material times employed and working for the 5th defendant while the 4th defendant was employed by and working for the 2nd defendant. He contended that the fact that all the defendants retained and instructed the same advocates in this case and presented the 4th defendant as their witness demonstrates the fact that the 1st, 2nd and 5th defendants while technically legally separate entities are practically owned, managed and operated as a joint enterprise. It was therefore argued that consequently, the issue of publication by the Defendants has been established through credible evidence and that it is also so admitted by the Defendants through their evidence and actions throughout these proceedings.

It was argued that the libel was archived and remains published in a permanent retrievable form. That the 4th Defendant was at all material times an employee of the 2nd Defendant. That, however, because he is simply a reporter who holds no managerial or executive position with the 2nd defendant, the latter is more responsible for the editorial decisions made and is therefore ultimately responsible for the publication’s posting, wide dissemination and archiving in retrievable forms on its websites and continued electronic dissemination. That the 2nd Defendant was said to be also responsible for the numerous defamatory publications before and after the libel and the broadcast complained of.

The 3rd Defendant’s responsibility was said to be two-fold. First, that he had contacted the Plaintiff and enquired about the allegations that formed the substance of his broadcast on February 18, 2013 and secondly, that despite the fact that the plaintiff had informed him that the “rumours” about his arrest and detention were false; the 3rd defendant went ahead and read/broadcast the allegations on prime time news on 18th February, 2013. It was also submitted by the plaintiff that the 3rd Defendant has never published an apology and/or retraction of the offending words. It was argued however, that the 3rd Defendant was a news reader and not the managing editor of the 5th defendant therefore the latter bears the greatest responsibility for the impugned broadcast.

It was submitted by the plaintiff that it is the 5th Defendant that had broadcasted the offending statement on 18th February, 2013 as headline news on its prime time news program, which program it was submitted, millions of viewers must have watched. He submitted that the story remains permanently cached and archived by the 5th Defendant and other third parties. That just like the other Defendants, the 5th Defendant had not published an apology to the Plaintiff.

The plaintiff submitted that the offending publications and broadcasts mentioned him by name and carried his images or pictures. That they also described him in detail; disclosing, sensationalizing and distorting information about his profession (falsely referred to him as a “controversial political activist” and a “former civil servant”) instead of correctly referring to him as an advocate, writer, author or former advisor to the (former) Prime Minister.

Mr Miguna Miguna further submitted that the offending words were published and disseminated to tens of millions of people around the world. That theStandard Newspaper has a daily hard copy circulation of more than 350,000; the KTN TV station has a viewership of millions of people daily; both in Kenya and abroad; That both The Standard and the KTN TV station are published digitally and are accessible to hundreds of millions of people around the world. He contended that the offending words are permanently archived, accessible and retrievable to millions of people around the world. That furthermore, the 1st Defendant owns and operates a dozen other large media subsidiaries or outlets such as The Standard on Saturday, The Sunday Standard, The Nairobian, Radio Jambo, Baraza Ltd., Agency Sales and Services Ltd, and many other magazine periodicals where the offending words were repeated, published and disseminated. That the Defendants were capable of disseminating - and indeed disseminated – the offending words or statements to hundreds of millions of people around the world thereby inflicting unimaginable injury to the plaintiff’s reputation and name.

The Plaintiff contended that the Defendants had not admitted liability or even retracted the offending words or statements despite having been served with a Libel Notice and the pleadings in this matter. That based on the evidence before this court, the 1st, 2nd, 4th and 5th Defendants bear the greatest responsibility for the offending publications for reasons that:-

The 4th Defendant had admitted being the one who concocted, wrote and presented the false story that ended up being broadcast and published. Had he not done so, it is conceivable that at least the libel in The Standard Newspaper would not have been published and the injuries to the Plaintiff’s name, character and reputation would have been avoided. The fact that he has refused to admit liability, offer apology and a retraction demonstrates express malice on his part;

The 1st, 2nd and 5th Defendants were at all material times well-established media houses with human and material resources to conduct due diligence, make enquiries and cross-check the truthfulness of stories prior to publishing them;

The 1st, 2nd and 5th Defendants were at all material times well-established media houses with positive duties to ensure that all stories it publishes are accurate, fair, balanced, impartial and professional. Their consistent and flagrant failure to do so demonstrates malice aforethought;

The 1st, 2nd and 5th Defendants had positive duties to ensure that the plaintiff was treated with respect, dignity and was not subjected to vilification, attacks and unfairly accused of having committed criminal offences that they knew or ought to have known he had not committed;

The 1st, 2nd and 5th Defendants were at all material times well-established media houses with positive duties to accord the plaintiff a fair, unbiased and balanced reporting as well as accord him a right of reply and a correction, retraction and apology where deserved;

Accordingly, the 1st, 2nd, 4th and 5th Defendants should bear at least ninety percent of responsibility for the defamatory publications.

The 1st, 2nd and 5th Defendants had the ultimate responsibility of setting editorial policies; hiring, training and supervising their reporters and/or journalists; and deciding what gets published, where they get published, how many times they get published and with what prominence and when they get published. They were also ultimately responsible for defending this action; the failure or refusal to apologize and/or retract the impugned publications.

The 3rd Defendant was responsible for reading the portion of the broadcast that unfairly and misleadingly characterized the plaintiff as violent, abusive and a criminal even though he had earlier spoken with the plaintiff who advised him that the allegations were not true. However, as a news reader or anchor only, with no editorial role in the writing, editing or decision-making as to the content of the news to be published or broadcast on KTN TV, he should only be responsible for proceeding to read what he knew to have been false. It is submitted that a ten percent responsibility would be just under the circumstances.

On general damages, it was submitted by the plaintiff that they are awarded at large and cannot be capped. That the said damages are awarded as solatium and vindication for the loss of reputation, for injured feelings, for outraged morality, for having had to suffer the insults, the indignities, the humiliation and the like, and to enable the plaintiff to protect himself against future calumny or outrage of a similar kind. The Plaintiff sought Kshs. 50,000,000. 00 in general damages against all the Defendants, jointly and severally, due to the alleged wide, repeated and persistent publication and dissemination of the vilest criminal allegations against him. With regard to general damages the Plaintiff cited a vast number of cases. Among them, Hill v. Scientology (1995) 2 SCR 1130 (Supreme Court of Canada) where the Supreme Court of Canada held that, “No cap should be placed on general damages for defamation.” It was submitted that in the Hill (supra) case, the court held that the award of $300,000 (which the Plaintiff approximated to Kshs. 25,800,000) for general damages was justified in 1995. The Plaintiff argued that after twenty years, that amount would be about $720,000 (approximately KShs. 60,320,000), without indexing the figure in consideration of the effects of inflation.

Secondly, the decision of Hon. Henry Obwocha v. Headlink Publishing Ltd (2014) (HCK) was also cited where Ougo J. awarded the plaintiff KShs. 15,000,000 in general damages in a case against The Weekly Citizen. It was submitted that The Weekly Citizen has a national circulation of less than 45,000 copies and with less egregious conduct on the part of the defendants than the case at bar and that therefore, considering the sophistication, size and conduct of the Defendants the Plaintiff is entitled to an amount higher than awarded in the Obwocha decision (supra). It was submitted that in addition, the 1st, 2nd and 5th Defendants are more than capable of paying the amount of damages sought.

It was submitted that there are also aggravating factors in this case and compensatory damages should be awarded. It was argued that the alleged defamatory words were concocted, published, repeated, and widely disseminated to millions of people around the world via both hard copy and electronic versions of The Standard, The Standard Digital, KTN, The Standard on Saturday, The Sunday Standard and various websites owned and operated by The Standard Group Ltd. That the Standard Group Ltd. is the oldest media house in Kenya and the second largest. That The Standard Limited publishes The Standard newspapers, which have the second largest national circulating newspapers in Kenya with a daily circulation of more than 350,000 hard copies. That the newspaper is accessible electronically to hundreds of millions of people around the world. Thereby, the alleged published libel and broadcast complained of must have been disseminated to hundreds of millions of people. The Plaintiff argued that the alleged libel continues to be published on an electronic platform owned by the 2nd and 5th Defendants as well as those belonging to third party electronic platforms or carriers or websites which continue to archive the offending words in retrievable forms.

The plaintiff contended that even though other media houses or publications like The Daily Nation and The Star had attended at the Plaintiff’s home on 18th February, 2013, it was only the Defendants that published and disseminated false allegations about the Plaintiff. That based on the emails from Mr. David Ohito, the editor of The Standard Digital Newspaper; there was a deliberate and coordinated editorial decision to portray the Plaintiff as a criminal and a person unworthy of dignity, respect, humane and fair treatment. The Plaintiff argued that the aforegoing proves that the Defendants’ actions were actuated by malice.

It was further submitted that the Defendants published the offending words without having made reasonable and diligent enquiries as to their accuracy and truthfulness and without mentioning that the Plaintiff had not been arrested or charged with any offences and that the allegations had not been proven before any court of competent jurisdiction. That they also refused to publish the Plaintiff’s written statement which was submitted as his Right of Reply.

The plaintiff further submitted that the Defendants had also deliberately distorted, misrepresented and attributed manufactured information purportedly from the Plaintiff, the DPP, the Kenya Police and the NCIC so as to depict the Plaintiff as person facing serious criminal allegations, charges or prosecution when they either knew or ought to have known that this was false. That before and after publishing the offending words, the Defendants continued to manufacture, manipulate, concoct, distort stories and publicly hurl serious allegations of criminality that have irreparably injured the Plaintiff’s reputation and lowered his esteem, standing and reputation to right thinking members of the society.

The Plaintiff, in addition, extensively submitted that on 16th July, 2012, the 1st, 2nd and 5th Defendants sensationally reported, published and broadcast Nyando MP, Frederick Outa’s inflammatory, epithet-filled and warlike demonstration against the plaintiff at Ahero Township in Nyando constituency, where:-

Mr. Outa – as the Member of Parliament and a self-confessed “leader of the mob” – led thousands of people wielding huge crude weapons and defamatory placards against the plaintiff;

The violent mob carried defamatory caricatures and images of the plaintiff;

The more than 10,000 people were incited to violence against the plaintiff and publicly castigated and assassinated the plaintiff’s character;

The violent mob held a mock funeral procession of the plaintiff;

The mob publicly burnt the plaintiff’s effigy;

The riotous mob publicly buried the plaintiff in a mock funeral;

Mr. Outa called the plaintiff an “evil spirit,” a “fugitive from justice;” “called on the Canadian authorities to deport Miguna so that he can answer to charges of defamation.”

Mr. Outa stated that he had “a damaging dossier ‘already prepared’ against the plaintiff” regarding “scandals he had been involved in;” and issued ultimatums to the Plaintiff in similar language and words published in The Standard newspaperof July 17, 2012.

It was submitted that the alleged false and sensational reference to “scandals the Plaintiff had been involved in” meant, was capable of meaning and implied criminal and moral wrongdoing; criminality; immorality; moral corruption; lack of moral probity; lack of integrity; dishonesty; untrustworthiness; unscrupulous conduct; and all manner of character, personal and professional blight and blemish recklessly and unfairly hurled at and attributed to the Plaintiff. That significantly, as well-established media houses, the 1st, 2nd and 5th defendants were aware, at all material times, of the Plaintiff’s constitutional right to think, write books he chose to write and hold and express his opinions lawfully as well as his right not to be subjected to propaganda, hatred, hate speech or incitement to hatred and violence, or of having his reputation subjected to unwarranted attacks like the ones the defendants have repeatedly and maliciously perpetrated against him, especially their unfettered publication and broadcast of the warlike demonstrations at the Ahero Township.

That the court should note that the Friends of Raila (Fora), Evans Kidero, Gitobu Imanyara, Frederick Otieno Outa, the late Senator Otieno Kajwang’ and other third parties that the Defendants repeatedly published their defamatory utterances also allegedly sought the Plaintiff’s prosecution, yet the Defendants have never telephoned or written to the Plaintiff for his reaction over the impugned statements; never apologized and/or retracted the impugned words or statements; never delivered a copy of any Libel Notice regarding the alleged lawsuits against the Plaintiff; never delivered evidence of any lawsuits against the Plaintiff as alleged; never written or published a book in response to the alleged falsehoods in the Plaintiff’s books; never written or published a rebuttal in any newspaper or blog on the Plaintiff’s books; never written or published a review or critique of the Plaintiff’s books; never written or published an analysis of the Plaintiff’s books; never sought or obtained an injunctive order against the Plaintiff or the Plaintiff’s books; no power or legal authority to conduct criminal investigations; no power or legal authority to charge anyone with criminal offences; and no power or legal authority to order anyone deported.

The Plaintiff submitted that he served a Libel Notice dated 18th March, 2012 on all the Defendants named. That the Libel Notice specified the terms upon which the matter could be resolved but that despite the said service, the Defendants refused and/or failed to comply with any of the terms. It was stated that the Defendants responded to the Libel Notice through their advocate, Mr. Wanjala, who promised to respond after “conducting investigations.” that other than their pleadings before this court, the Defendants have never responded to the Libel Notice, they have never apologized to the Plaintiff and/or retracted the offending words.

The Plaintiff submitted that the wilful and deliberate manufacture, publication and dissemination of false allegations or accusations against an innocent person like himself distorts and undermines the free flow of information and ultimately subverts the democratic process. In support to his case, the Plaintiff cited Hill v. Scientology (supra) where it was held that:-

"Freedom of expression has never been recognized as absolute. Duff C.J. emphasized this point in Reference re Alberta Statutes, supra, at p. 133: “The right of public discussion is, of course, subject to legal restrictions; those based upon considerations of decency and public order, and others conceived for the protection of various private and public interests with which, for example, the laws of defamation and sedition are concerned. In a word, freedom of discussion means… “freedom governed by law."

It was further submitted that the court in the latter case underlined the harm and injury the spread of falsehoods and hate propaganda inflicts on the democratic process and innocent victims, thus:-

"Certainly, defamatory statements are very tenuously related to the core values…They are inimical to the search for truth. False and injurious statements cannot enhance development. Nor can it ever be said that they lead to healthy participation in the affairs of the community. Indeed, they are detrimental to the advancement of these values and harmful to the interest of a free and democratic society...To make false statements which are likely to injure the reputation of another has always been regarded as a serious offence."

MR Miguna Miguna further cited Fraed v. Graham, 24 QBD 53, 55, as quoted in the Onyancha case (supra) where it was held that, “in an action for libel, the whole conduct of the defendant from the time the libel was published down to the time of the verdict is given” must be considered. The court “may consider where his [the defendant’s] conduct has been before action, after action and in court during trial.”

He submitted that the Onyancha case has established that in an action for libel, the whole conduct of the defendant from the time the libel was published down to the time the verdict is given should be assessed. That the court may consider where his conduct has been before action, after action and in court during trial in determining malice and appropriate damages. The more confrontational, outrageous, offensive, vindictive and spiteful the defendant’s conduct has been before, during or after the case was commenced, the more the court may award in general, compensatory/aggravated and punitive damages against the Defendant(s). That compensatory/aggravated damages are awarded to reflect what the plaintiff has suffered materially or in wounded feelings while punitive damages conveys social disapproval or the court’s sense of disgust at the defendant’s outrageous, malicious, oppressive or spiteful conduct.

The Plaintiff further cited Young v. Toronto Star Ltd et al, (2005) Court of Appeal of Ontario at pp. 27-28, para 108 which he stated is an analogous case to this case. He submitted that the court therein considered the Defendants’ conduct after publication of the defamatory article to be an aggravating factor that justified awards of substantial sums as compensatory/aggravated and punitive damages. That the said court held that, “Despite their [defendants’] knowledge that the plaintiff had done nothing improper, there was no bona fide attempt to correct the wrong that had been done to him. Even the second article, while giving a balanced picture, did not acknowledge that an error had been made in the first article…”

The Plaintiff submitted that the Supreme Court of Canada in Hill case (supra) similarly ruled that the continued attack against the Plaintiff, a lawyer, throughout the trial of the action more than once during which time the Defendants reiterated the libel even though they knew that those allegations were false was considered a repeated attack on the Plaintiff’s moral character, was considered high-handed and careless and amounted to actual malice.

He argued that more significantly, that the foregoing article contained falsehoods and it was published recklessly in complete disregard to whether the words published were true or not. That in the recent High Court decision in the Hon. Obwocha v. Head Link Publishers Ltd (supra), Lady Justice Ougo, relying on Manson v. Associated Newspaper Ltd, [1965] 2 All E.R. 954, ruled that, the plaintiff is entitled to exemplary damages for such recklessness whether the words published are tortuous or not. That the Manson v. Associated Newspaper decision held that exemplary damages may be awarded in a case in which a newspaper quite deliberately published a statement which it either knows to be false or which it publishes recklessly, carelessly whether it be true or false.

He argued that aggravated/compensatory damages are awarded in circumstances like in this case where the Plaintiff alleges that the Defendants’ conduct have been particularly malicious, high-handed, oppressive, spiteful, dishonest, malevolent and contumelious and therefore greatly injurious to the plaintiff materially and/or emotionally and/or psychologically. He argued that like in the Hill case, the Defendants’ presentation of “justification” as a defence, their refusal to publish a genuine and acceptable apology and retraction, their lack of remorse, their repeated and/or subsequent alleged publication of defamatory allegations against the Plaintiff without any investigations or inquiries and without even placing a call to the Plaintiff; and their aggressive, demeaning and egregiously hostile attitude against the Plaintiff throughout these proceedings thereby increasing the plaintiff’s humiliation, anxiety and emotional or psychological stress or trauma should entitle this court to award high compensatory/aggravated damages against them.

It was the Plaintiff's submissions that aggravated damages are an additional sum needed to vindicate the strength of the law and act as a supplement to its penal provisions. That it would express the court’s indignation at the wanton and unjustified injury on the Plaintiff’s reputation and name and would be a reasonable compensation to him and requital to the wrongdoer. The Plaintiff was of the opinion that compensatory/aggravated damages are awarded in addition to general damages; the latter meant principally as a solatium and vindication to the Plaintiff. He urged that this court should award significant aggravated or compensatory damages against the Defendants as the evidence before the court shows that their conduct have been malicious, oppressive and high-handed to the extreme, thereby increasing the plaintiff’s humiliation and anxiety arising from the libelous statement.

On the common law concept of malice and why punitive damages ought to be awarded, it was submitted that it is now settled that the common law concept of malice involves an assessment of different factors, such as animosity, hostility, ill will and spite. That 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 and further that malice may also be inferred from the relations between parties. That the failure to inquire in the facts is a fact from which inference of malice may properly be drawn. The Plaintiff on this facet cited Hill v. Scientology,supra, at p. 41, para 55, lines 1-5; CFC Stanbic Bank Limited v. Consumer Federation of Kenya (COFEK) et al, HCCC # 315 of 2014, per A. Mabeya J. and D.A. Onyancha J, quoting Odunga J. in Phineas Nyagah v. Gitobu Imanyara (2013) eKLR. He argued that it is significant to note that the recent High Court decision in the Henry Obwocha case, supra, affirmed the long-held view in libel law that:-

"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 used are excessive, there is therefore malice...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."

The Plaintiff submitted that the law on exemplary/punitive damages was long settled by Widgery J. in the celebrated case of Manson v. Associated Newspapers Ltd. [1965] 1 W.L.R. 1038, 1-40, at pp. 1040-1041, where he held:

“that in a case in which a newspaper quite deliberately publishes a statement it either knows to be false or which it publishes recklessly, careless whether it be true or false, and on the calculated basis that any damages likely to be paid as a result of litigation will be less than the profits which the publication of that matter will give, then...exemplary damages are permissible.”

Further, that Widgery J. went on to state that a jury or tribunal or court is entitled to consider awarding exemplary damages:-

"…if having considered what material there is before them, they are driven to the inference that this was an article published by the defendants conscious of the fact it had no solid foundation and with the cynical and calculated intention to use it for what it was worth, on the footing that it would produce more profit than any possible penalty in damages was likely to be."

That in other words, if the defendant behaved in a high-handed, malicious, insulting or oppressive manner in committing the tort or he or his counsel may have aggravated the injury at the trial by what they said as the defendants are alleged to have done in this case, the court would be justified to award as damages the largest sum that could fairly be regarded as exemplary or punitive damages. He submitted further that as is often said in libel law, a person is liable to pay damages on a punitive basis if s/he willfully and knowingly, or recklessly peddles untruths for profit. That in this case, the Defendants did far worse: they peddled falsehoods, concocted non-existent evidence, distorted facts and attempted to destroy the Plaintiff’s reputation for both political and financial gain.

It was submitted by the plaintiff that the Defendants’ repeated publication and wide dissemination of false and unverified serious criminal allegations against the plaintiff without making reasonable enquiries as to whether or not the allegations were true or false; their consistent refusal to publish genuine apologies and retractions; their refusal to express genuine remorse; their refusal to delete all the offending words from their websites; their belligerent pursuit of this case throughout; and their cynical disregard for the plaintiff’s rights and reputation with the belief that the advantage or money or profit they stood to make out of the sale of newspapers containing the sensational publications (wrongdoings) or simply due to their malicious intent, would exceed the damages that might be obtained by the plaintiff, warrants this court to show them that the plaintiff’s rights cannot be infringed upon and the law broken with impunity without consequences. That accordingly, exemplary damages are properly awarded in a case like this in order to teach the defendants that tort does not pay and in order to vindicate the Plaintiff’s reputation.

It was further argued by the plaintiff that the evidence on record suggests that while it was the 4th Defendant who initially conspired with unknown parties and jointly manufactured, published and widely disseminated the false and highly offensive story in The Standard of February 19, 2013 and on KTN TV on February 18, 2013, it was actually the 1st, 2nd and 5th Defendants as major media houses who could and should have prevented the repetition and subsequent widest dissemination of the egregiously offensive stories from reaching millions of people around the world by ensuring high journalistic standards that met the requirements of the Media Act were adhered to. That they are also the ones who could and should have ensured that they established stringent editorial policies that required unverified allegations of the kind that were repeatedly published against the Plaintiff to be cross-checked, investigated and substantiated through credible evidence before publication; that the Plaintiff was not repeatedly subjected to demeaning, humiliating and degrading treatment as he was throughput these proceedings; that they published genuine apologies and retractions satisfactory to the Plaintiff; and that they exhibited genuine remorse during these proceedings.

It was submitted that once the impugned words and statements had been published and widely disseminated by the defendants and each one of them, it was impossible to track the scandal, to know the quarters the poison may have reached or may reach. As long as the offending words have not been fully and unconditionally withdrawn and apologized for and such withdrawal and apology have not been communicated to all those whom it/they has/have reached, it/they may continue to spread especially given the fact that it/they are permanently posted in the Internet. That moreover, the persistence by each one of the defendants on the baseless plea of justification and a repetition of the original or subsequent libel by them at the trial thus giving it/them further publicity should increase the damages awarded to the Plaintiff. That this is because exemplary damages are awarded to express indignation at the defendant’s wrong rather than a value set upon the plaintiff’s loss. That the kinds of wrongs to which they are applicable are those which, besides the violation of a right or the actual damage, import insult or outrage. Exemplary or punitive damages are intended to teach the Defendants and others that “tort does not pay” by demonstrating what consequences the law inflicts rather than simply to make the defendants suffer an extra penalty for what they have done. In other words, tort law allows an aspect of a “fine” on the egregious offender.

The Plaintiff urged this court to punish the Defendants for their alleged outrageous conduct to mark the court’s disapproval of such conduct. That the court ought to order punitive damages in the amount KShs 25,000,000 against the Defendants in order to demonstrate that the malicious, oppressive and high-handed conduct offends the court’s sense of decency; and in order to deter them from repeating the offending words or allegations, or similar allegations, by awarding substantial exemplary or punitive damages.

The Plaintiff further referred to the Hill (supra) decision, to illustrate the special treatment given or that ought to be given to the significance of reputation to a lawyer who had been falsely criticized at a press conference held and addressed by the Defendants. The said court held as follows with that regard:-

"In the present case, consideration must be given to the particular significance reputation has for a lawyer. The reputation of a lawyer is of paramount importance to clients, to other members of the profession and to the judiciary. A lawyer’s practice is founded and maintained upon the basis of a reputation for professional integrity and trustworthiness. It is the cornerstone of a lawyer’s professional life. Even if endowed with outstanding talent and indefatigable diligence, a lawyer cannot survive without a good reputation…Judges rely upon commitments and undertakings given to them by counsel. Our whole system of administration of justice depends upon counsel’s reputation for integrity. Anything that leads to the tarnishing of a professional reputation can be disastrous for a lawyer …”

He argued that in the instant case, the Defendants have produced no evidence showing that the allegations they published against the plaintiff were true or justified. That their failure to adduce relevant, reliable and credible evidence in their defence ought to be inferred as an admission that they published the defamatory and slanderous statements or words knowing that they were false. That none of the defendants has admitted liability and/or offered genuine apologies and retractions. That instead, the Defendants have purported that they were “justified” to publish and broadcast what they knew were egregious falsehoods, concoctions and distortions. It was argued that for the aforegoing, the Plaintiff has on a balance of probabilities established malice on the part of each one of the Defendants.

The Plaintiff submitted that due to the publication and broadcast, feeling of humiliation, embarrassment and odium had been compounded by the fact that his young children and wife and their friends have also read and been scandalized by the publication of the words complained of.

He further submitted that he asserted in evidence that he has no criminal record and there is no evidence that he has ever been sought or summoned by the Kenya Police, the DPP and the NCIC over any criminal allegations as falsely and repeatedly asserted or published by the Defendants. That as such, the publications and broadcasts were false in substance and in fact. He further submitted that he had legally booked his flight and that of his family with whom he had travelled to Canada through the Jomo Kenyatta International Airport (the “JKIA”) on July 16, 2012 – two whole days after having publicly launched his Book at the Intercontinental Hotel in Nairobi on July 14, 2012. That he and his family checked in, cleared both immigration and customs before departing for Canada on July 16, 2012 at a busy International Airport with hundreds of security officers including members of the regular Kenya Police Service, the Department of Criminal Investigations (DCI), the National Intelligence Service (“NIS”), the International Criminal Police (Interpol), Immigration and Customs officers. Yet, none of them had stopped, questioned or apprehended him. That the Defendants have not produced any evidence from these bodies to substantiate their allegations. That for the 1st, 2nd and 5th Defendants to have deployed numerous journalists to monitor and videotape the plaintiff’s Nairobi home and to harass his employees and relatives; and to have followed him to the airport under the guise of “covering” his “escape” to Canada was the height of impunity.

The Plaintiff submitted that at all material times there was no law requiring him to seek or obtain permission from anyone, including the Defendants, before he could travel abroad for any number of reasons and he never violated any laws before, during or after his travel at all material times and submitted that it was therefore malicious, blatantly false, a fabrication and a deliberate and complete distortion of known facts for the 1st and 2nd Defendants, through their senior editors like Okech Kendo, Kipkoech Tanui and other surrogates to publish and widely disseminate defamatory statements which besmirched the Plaintiff’s character and claimed that he had “betrayed his comrades;” “fled to Canada at the first burst of teargas;” and that he lived there for twenty years as “an economic refugee.” That as detailed in the preceding paragraphs, virtually all allegations the Defendants made against him in their media outlets were false and deliberate concoctions.

It was submitted that the Plaintiff having proven his case for defamation he is entitled to substantial awards in general damages of fifty million shillings (Kshs. 50,000,000/=), jointly and severally or ten million shillings (Kshs. 10,000,000/=) from each one of the defendants; compensatory or aggravated damages of ten million shillings (Kshs. 10,000,000/=); and punitive damages of twenty-five million shillings (Kshs. 25,000,000/=), all totaling Kshs 85,000,000/= plus both pre-judgment interest from the date this action was filed on May 28, 2013 to the date when judgment is granted herein, and post-judgment interest from the date of this judgment is issued until the defendants pay all the sum awarded. That he is entitled to his costs on a substantial indemnity basis, fixed at fifteen million shillings (Kshs. 15,060,500/=), payable forthwith. This excludes costs that were awarded to the plaintiff during the pre-trial hearing and also when the defendants sought and obtained adjournment of the proceedings on October 21, 2015.

He further urged the court to order the defendants to publish an unequivocal retraction and an acceptable apology in prominent places in at least two national circulating daily newspapers, two national television stations and three national radio stations in the form and content approved by the plaintiff and to have the said apology and retraction read on three consecutive days during prime time on the KTN TV at 7am and 9pm within two weeks from the date of judgment. He also seeks an Order requiring the defendants to purge and remove all posts, publications and broadcasts of the offending words or statements from the defendants’ archives, websites, YouTube feeds and in both the Facebook and Twitter accounts or walls. He finally prayed for an Order allowing him to report to the trial judge on the conclusion of the terms of these Orders within fourteen days from the date of the Order if the judgment is not appealed.

DEFENDANTS' SUBMISSIONS

Prior to making substantive submissions the Defendants sought this court's reliance only on the witnesses who took oath i.e. the Plaintiff and his witness (PW1) and that the Plaintiffs' other witnesses, Peter Mugai, Mr Mwakio and Vincent K. Mwanga whose statements were merely filed be disregarded.

The other facet of the Plaintiff's submissions that the Defendant took issue with is that the claim pleaded focuses on the broadcast made on 18. 02. 2013 and an article published on 19. 02. 2013. The Defendants submitted that the case before this court is restricted to what the plaintiff has pleaded in the plaint and what is contained in the defence. That it is a requirement of Order 2 Rule 7(1) of the Civil Procedure Rules, 2010 that in an action for libel or slander particulars ought to be given of the facts and matters relied on by a plaintiff in support of the sense in which he/ she attributes to the words or matters complained of. The Defendants therefore took the earliest possible opportunity to bring to the courts attention the fact that the plaintiff has introduced in this case extraneous material that is not relevant to the facts in issue. For instance in his submissions at the table of contents the plaintiff lists a series of what appears to be publications i.e. from pages 19 through to 39. The defendants urged the court to observe that those publications are not pleaded in the plaint so as to form the subject matter of the complaint. The Defendants urged that the said publication should accordingly be rejected. It was submitted that further to that, the plaintiff has supplied to the court two broadcasted recordings. These were marked as exhibits 3 and 4. One of the recordings features the broadcast made on 18th February 2013, this one is duly pleaded and is directly relevant to the subject matter before the court. That however the recording that features a broadcast made on 17th July 2012 is irrelevant in as far as the cause of action pleaded before the court is concerned. It was argued that the cause of action pleaded by the plaintiff is one of libel over the broadcast made on 18. 02. 2013 and an article published on 19. 02. 2013 and that it was impermissible for the plaintiff to introduce otherwise than by an amendment to the pleadings grievances that he may have had on either publications or broadcasts that are not part and parcel of the cause of action pleaded.

The court's take on the above submission is that it is noted that the Plaintiff has made reference and substantially submitted on several other publications which have not been pleaded in his plaint. Particularly, the publication alleged to have been made on 16th July, 2012, by the 1st, 2nd and 5th Defendants. These are matters that I would wish to dispose of preliminarily. It is important to note that it is not how much one brings before the court that makes his or her case stronger, but how relevant that evidence is before the court to the facts as presented in the pleadings and evidence adduced in support of the pleadings. Further, submissions are not and have never been evidence supporting a party’s case. Iam fortified on this point by the case of Douglas Odhiambo Apel&another v Telkom Kenya Ltd CA 115 OF 2006 [2014]eKLR where the Court of Appeal

“...... a Plaintiff is under a duty to present evidence to prove his claim. Such proof cannot be supplied by the pleadings or the submissions. Cases are decided on actual evidence that is tendered before the court................ unless a consent is entered into for a specific sum, then it behoves the claiming party to produce evidence to prove the special damages claimed.........

Submissions, as he correctly observed, are not evidence....”

In the instant case, the plaintiff submitted at length of the events of 2012 as if they formed part of the transaction giving rise to this cause of action and therefore asking the court to make a finding on them. A plaintiff is under a duty to present evidence to prove his claim. Such proof cannot be supplied by the pleadings or the submissions. Cases are decided on actual evidence that is tendered before the court. It is not enough to merely point to the plaint or to repeat the claim in submissions. Accordingly, I agree with the defendant’s submissions and objection that the submissions by the plaintiff relating to some other events in 2012 where Fred Outa led mass demonstrations and burning of the plaintiff’s effigy in Nyando are farfetched and irrelevant to this case as they are not in support of the pleadings filed herein. The court is therefore not inclined to allude to the said submissions in as far as proof of the alleged defamation is concerned. Pre defamation events can only be relevant if they are referred to in further proof of malice and no more. In addition, issues for determination cannot therefore be raised by way of evidence or at submissions level unless there were amendments to the pleadings to that effect. Order 2 Rule 4 (1) of the Civil Procedure Rules enacts that:-

“A party shall in any pleading subsequent to a plaint plead specifically any matter, for example performance, release, payment,fraud, inevitable accident, act of God, any relevant statute of limitation or any fact showing illegality;

a) which he alleges makes any claim or defence of the oppositeparty not maintainable;

b) which, if not specifically pleaded, might take the oppositeparty by surprise; or

c) which raises issues of fact not arising out of the precedingpleading?”

In the case of Achola & Another v. Hongo & Another LLR No. 4007 [CAK]the Court citing with approval Halsburys Laws of England, Fourth Edition, Volume 36 at paragraph 48 page 38 headed; “Matters which must be specifically pleaded” stated;

“The defendant must in his defence plead specifically any matter which he alleges makes the action not maintainable or which, if not specifically pleaded might take the plaintiff by surprise or which raises issues of fact not arising out of the statement of claim..."

The words of the Court in the case of Gandy v. Caspair[1956] EACA 139 are equally instructive that:-

"Unless pleadings are amended, parties must be confined to their pleadings. Otherwise, to decide against a party on matters which do not come within the issues arising from the dispute clearly amounts to an error on the face of the record."

For the above reasons, substantial reference to events of 2012 alleging that the 5th defendant herein aired demonstrations led by Fred Outa or publishing defamatory matters made by Friends of Raila and dragging other people’s names in this case are not well founded and deserve to be rejected as being totally irrelevant and unnecessary.

On the issue of witnesses whose statements were filed but who did not give evidence on oath, I find and hold that a statement not made on oath or by affirmation and which is not subjected to test by cross-examination has no probative and or evidentiary value. Such statements therefore remain just that, statements with no evidentiary value.

In view of the above preliminary findings, I shall confine myself to the pleaded publications and broadcasts which I had earlier on in this judgment outlined while giving a summary of the Plaintiff's pleadings and the oral evidence by the Plaintiff, PW1 and the 4th defendant DW1. The elaborate reference to events in 2012 and statements of other persons who were listed as witnesses but who were never called to testify are, as far as this court is concerned, not of any evidential value and must be rejected.

The Defendants did not frame any list of issues for determination. They only submitted generally, while generating issues for determination from those general submissions. It was the defendants' contention that the burden of proof in this case lay upon the plaintiff through his witnesses to show on a balance of probabilities that the words pleaded would convey in their ordinary meaning or would be understood in light of the attributes he has alleged. That on the basis of the cause of action founded by the plaintiff which is libel, then the main issue for determination before the court is: Whether the meanings attributed to the publication are defamatory as a matter of fact. The Defendants submitted that the mere fact that an allegation made against one by the other is false does not necessarily make it defamatory, and that therefore if the allegation is not defamatory in nature, there can be no claim in defamation.

On the broadcast of 18. 02. 2013. It was submitted that the said broadcast was accompanied by a recording of the broadcast that shows the plaintiff himself addressing the journalists. That from the words pleaded the court will note that there is the use of the word allegedly (in bold). That in common parlance relating to the use of the word allegedly it means that:- Allegedly [adverb] used to convey that something is claimed to be the case or to have taken place, although there is no proof.

It was submitted by the defendants that the obvious implication of this is that the report made by the defendants was not a reporting of facts or conclusions. The report was merely with regard to information that the journalists had received. That the defence witness Mr. Ombati confirmed on oath that a call was received at the media house with giving the details of the allegation made. That this is what prompted the journalist to proceed to the plaintiff’s residence. It was argued that the court will observe from the video recording the plaintiff addressing the media. Further that the defence witness produced an exhibit of the press statement sent by the plaintiff which the plaintiff during his cross-examination conceded that that was his statement. It was submitted that the plaintiff also confirmed that policemen went to his residence and that he gave the police a statement. That in substance there is no falsity in the broadcast made by the defendants on 18th February 2013. It was argued that the broadcast report was on the series of events that took place on the material day and the plaintiff was accorded sufficient opportunity to comment (on air) with regard to those events and that the meanings set out by the Plaintiff bore no such meanings as alleged. It was submitted that by the use of the word allegedlythe report did not report as a fact that the plaintiff had assaulted his house help. Therefore it is not possible for a discerning audience to get it from the news report that the defendants had reported as an established fact that the plaintiff had assaulted his house help.

It was further submitted that from the actual report and the broadcast made, no adverse inference could be inflicted upon the plaintiff’s reputation. That caution was exercised in the reporting so as not to report that these were established facts but allegations that had been made. Secondly, that the journalist sought the comments and the plaintiff’s side of the story which he provided through the press statement and address to the press which was sufficiently broadcast for balance. It was submitted that on the basis of what has been pleaded and the testimony on the record there is no outright statement in the publication that indelibly states as a fact that the plaintiff did assault his house help. That the plaintiff has failed to show that the broadcast was false and or that it tends to lower the plaintiff in the estimation of right thinking members of the society generally or that it exposed him to hatred, contempt or ridicule.

On the other limb of the plaintiff’s claim, that is the publication made on 19th February 2013, the Defendants submitted that it is a report on events that were said to have happened. It is not a report that conclusively sets out matters as though they have been proved or that they are conclusions. It was argued that the defence witness confirmed that indeed the lady in question had made a report at the police station. He received this confirmation from officer Mwakio. That the article does not state that the plaintiff did assault the house help but merely reports that a report was made by that house help at the police station. It was submitted that the aforegoing has not been controverted.

It was further argued that it was also stated that the plaintiff recorded a statement with the police. The Defendants contended that the plaintiff himself confirmed this fact and indeed produced a copy of the statement that he recorded as part of his evidence and that it therefore cannot be said to be false. On the claim that his books contained unsubstantiated accusations against the prime minister, it was submitted that this had absolutely no bearing to the cause of action presented in court.

The Defendants argued that on a balance of probabilities the plaintiff had not discharged his burden of proving the defamatory element of the article. That the plaintiff called one witness who only testified concerning the events in relation to the house help and the things that she is said to have done. This court was urged to note that PW1 did not give any evidence as to the impact of the broadcast or the publication with respect to his perception of the plaintiff. It was argued that it is axiomatic at this point to address this court on a crucial point in light of this witness’s testimony, which the Defendants stated begs the question: Whether it has been shown that the broadcast/publication lowered the plaintiff in the estimation of right thinking members of society? It was argued that the plaintiff’s independent witness gave no testimony in that respect. Therefore there is no evidence on record showing the actual effect of the publication and broadcast on any person. That indeed the witness presented did not tell the court whether or not he read the published article or watched the broadcast. That the crucial aspect of the cause of action has not been proved as the alleged impact of the article/ broadcast has not been demonstrated. The Defendants referred this court to the provisions of section 3(4) of the Evidence Act, Cap. 80 Laws of Kenya which provides that:-

A fact is not proved when it is neither proved nor disproved.

The defendants argued that what the court was left with was only the testimony of the plaintiff. It was argued that the cause of action is for defamation and for the Plaintiff to succeed, he must adduce evidence to show that the subject publication made people think worse of him and that it lowered him in the estimation of a section of society whose values do not reflect those of ‘right thinking’ people. It was argued that the said was not achieved by the plaintiff and he could not therefore on his own be his own witness on the perception had by third parties on his claimed character, reputation and profession.

The Defendants cited the holding of by the Court of Appeal in the case of Daniel N. Ngunia v. KGGCU Limited Civil Appeal No. 281 of 1998:-

‘Leaving Aside any questions of privilege upon which the Learned Judge dismissed that aspect of the appellant's claim, we note from the record that the appellant was the only person who testified in support of his claim. In those circumstances, we cannot see how a claim based on defamation could have possibly succeeded even in the absence of the defence of qualified privilege."

The above decision was emphasized by Justice Aganyanya (as he then was) in the case of George Mukuru Muchai v. The Standard Limited HCCC No. 2539 of 1997 where the learned judge held:-

‘In my view the most important ingredient in a defamation case is the effect of the spoken or written words in the mind of third parties about the complaint and not how he/she himself/herself feels the words portray about him/her.’

The Defendants were of the opinion that the plaintiff had failed to establish the claim against any and all of the defendants on a balance of probability and his claim should be dismissed as against the defendants.

The Defendants addressed the issue of quantum strictly on a without prejudice basis to their foregoing submissions on liability. It was submitted that the law and practice is very clear that interest on general damages is always awarded from the date of the judgment. They contended that the claim for pre-judgment interest on general damages has no basis in Kenyan law.

On the claim for costs, the defendants urged the court to disregard the same for the simple reason that party and party costs are assessed by the taxing officer/ deputy registrar of the High Court after the delivery of the judgement. It was argued that this is not the function of the trial court. That it was irregular for the plaintiff (an advocate) to claim unspecified costs within submissions. The Defendants cited an excerpt from Windeyer J in Uren-vs-John Fair fax & Sons PTY Limited 117 CLC 115 pg 50 duly approved and adopted as juridical guideline by the Court of Appeal of Kenya in Gicheru-vs-Morton & another [2005] 2 KLR where it was stated:-

‘It seems to me that properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was publicly defamed. For this reason, compensation by damages operates in two ways-as a vindication of the Plaintiff to the public and as a consideration to him for a wrong done. Compensation is here a solatium rather than harm measurable in money.’

It was argued by the defendants that first; no basis had been laid with respect to the awards claimed by the plaintiff. That the award of damages for defamation by the courts are made on the basis of juridical assessment that takes into account comparative awards of seemingly similar personalities as well as the mitigating and aggravating factors attendant to the circumstances. That the plaintiff had not supplied the court with justification or any plausible, rational account of the basis for his claims under the various heads of damages. The Defendants argued that the court cannot simply adopt figures plucked from the twilight zone into its judgment. That courts are required to rationalize and give reasons for the assessment of the awards they hand down. That on that score the court should disregard the unsubstantiated proposition by the plaintiff and proceed to objectively considers the charted guidelines established by the courts in assessment of general damages. It was argued that in keeping with the revered doctrine of precedent the court should be guided by the fairly recent decisions of the Court of Appeal Eric Gor Sungu v.George Oraro Odinga [2014] eKLRdelivered in January 2014 and Kenya Tea Development Agency Limited-vs-Benson Ondimu Masese t/a B.O.Masese & Co. Advocates CA No. 95 of 2006 (Unreported) delivered on 11. 07. 2008 wherein the Learned Judges of Appeal proclaimed the principles to be considered by a trial court in determining the amount of damages to be awarded to a plaintiff, the court endorsed the principles that were drawn from an English decisionJones-vs-Pollard [1997] EMLR 233,243 thus:-

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;

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;

Matters tending to mitigate damages, such as the publication of an apology;

Matters tending to reduce damages;

Vindication of the Plaintiff’s reputation past and future.

The Defendants also relied on the case of Gicheru v. Morton & Another [2005] 2 KLR 332 where the judges made reference to the following decisions and awards for libel by the High Court:-

Joshua Kulei-vs-Kalamka LtdHCCC No. 375 of 1997-General Damages 10,000,000. 00;

Nicholas Biwott-vs-Clays limitedHCCC No, 41068 of 1999-General damages Kshs. 30,000,000. 00;

Charles Kariuki t/a Charles Kariuki & Co. AdvocatesHCCC No. 5 of 2000(Meru)-General damages Kshs. 20,000,000. 00;

Daniel Musinga t/a Musinga & Co. AdvocatesHCCC No. 102 of 2000 General Damages Kshs.10,000,000. 00;

Obure-vs-Tom Alwaka & OthersHCCC No.956 of 2003 General damages Kshs. 17,000,000. 00.

It was argued that the Learned Judges in a terse concurring indictment of these awards stated that:-

‘The common denominator in the first six aforementioned cases and awards are that, first: they mostly concern prominent political elite the majority of them being politicians of considerable clout, or high ranking civil servants and advocates…Thirdly, the Defendants in almost all cases did not defend the suits. Finally, for unknown reasons, no appeals have been preferred, and if lodged not yet heard by this court, at least so far. My considered opinion of the awards so made is that they lack juridical basis, they may be found to be manifestly excessive and should not at all be taken as persuasive or guidelines of the awards to be followed by the trial courts, since the trial judges concerned appeared to have ignored basic fundamental principles of awarding damages in libel cases.’ Per Tunoi JA (emphasis applied).

‘…I agree with him that the High Court cases cited to us concerning quantum of damages in matters of libel do not appear to have a solid juridical grounding and like Tunoi,JA, I would find it very difficult to base my decision on them…’ Per Omolo JA (emphasis applied).

Whichsentiments are also shared by Learned Judges of the High Court in the decision of Chirau Ali Makwere-vs-Royal Media Services Limited [2005] eKLR where Hon. Justice Ransley (as he then was) set out verbatim Hon. Justice Kihara Kariuki’s (as he then was) view in J.P. Machira t/a Machira & Company Advocates-vs-Kamau Kanyanga & Standard Ltd HCCC No. 612 of 1996 in reference to three of the cases set out above statig that:-

‘…with utmost respect to the respective learned judges who made the following awards, I must confess that I am quite unable to understand the rationale for awarding what in my humble view are grossly exorbitant sums…’

The Defendants argued that the views held by the learned judges in the above sited High Court decisions are not binding (ratio decidendi) but the obiter issued by the judges is of immeasurable importance in giving rational juridical guidelines in the assessment of general damages. That the first case of Eric Gor Sungu-vs-George Oraro Odinga [2014] eKLR concerned the defamation of a prominent advocate of over 35 years standing conferred with the title of Senior Counsel in this country-Mr. George Oraro SC. It was argued that the defamation in question was with respect of a claim implicating Mr. Oraro in the death/ and alleged cover up of the late Robert Ouko, which the defendants submitted was much more grievous than what is alleged in this case. That case attracted an award of Kshs. 3 million at the High Court which was later on enhanced to Kshs. 5 million on the cross appeal and it was argued that this is demonstrative of the fact that any award to be made to the plaintiff in this case ought to be considerably less than Kshs. 500,000/-.

It was argued that the plaintiff's further submissions to attempt to give evidence on his family life, academic and professional qualifications was irregular for evidence to be given through submissions; That the attributes set out there under were not pleaded neither did the plaintiff give any testimony of that. That therefore the plaintiff cannot expect the court and the defendants to speculate as to who he is in the society or his achievements or status in life; that evidence of this had to be presented properly during the trial in an admissible manner.

The Defendants also relied on The Standard Limited-vs-Joseph Leo Ochieng and otherCivil Appeal No. 189 of 2004where the court held that:

“ defamation being in law a personal injury claim…each claimant is obligated by law to prove how his her reputation had suffered at the instance of the alleged libel or slander.”

That in this case the plaintiff has not established that. It was submitted that in the above case, the Court of Appeal also emphasized that the trial court is obligated to consider the mitigating factors in the assessment of damages. Ultimately the court made an award of Kshs. 2 million (reducing the same from 3. 5 million). The Defendants urged this court to consider that the claimant in that case who was awarded Kshs. 2 million was a judge of the High Court-Fred Andago Ochieng that had served as a partner in the firm of Kaplan & Stratton Advocates. The Defendants argued that in keeping with the general guidelines, the objective features of the publication is to be considered. First, that to make an affirmative finding that the subject article was a reporting of circumstances surrounding allegations that were made concerning the plaintiff and claims made by him alleging that there was an attempt by a prominent politician to poison him; That there has been no republication of any of the broadcast or the articles that are the subject matter of this case; That indeed it has not been shown that these articles are on the internet at present. That there has been no proof of actual or intrinsic malice, ill will or spite or any indirect or improper motive in the mind of the defendants at the time of the publication. That the journalists reached out to the plaintiff to inquire from him what his side of the story was. That the broadcast submitted to the court indeed show the plaintiff address journalists. In addition to this the defendants relied on the statement that the plaintiff had sent out to their newsrooms.

In support of the above line of submission the Defendants cited the decision of the High Court in Nation Newspapers Limited-vs-Gibendi [2002]2 KLR where the court emphasized the requirement that a plaintiff ought to prove actual malice, which is ill will or spite or any direct or improper motive in the mind of a publisher at the time of the publication. it was submitted that that in the instant case that was not on a balance of probabilities established by the plaintiff and submitted that there can as a matter of law and fact be no inference of malice on the part of the defendant from the wording of the article. It was further argued that there is absolutely no evidence on the record that the publication /broadcast was actuated by malice or was done deliberately to disparage his character. That there is no evidence on the record to show the defendants had any malice toward the plaintiff and that malice is a subjective element that has to be established as a fact by admissible evidence. The court was urged to scrutinize the intrinsic evidence-terms of the article in order to appreciate that no realistic inference of malice can be drawn from the article in fact and on the basis of the evidence on record. That there is therefore no evidential basis to draw inferences of malice where none can be found as there is no extrinsic evidence of malice. It was submitted that the question of malice in a claim for defamation is a factual issue that arises in relation to the defendant’s motive for publication. That there is no evidence provided on behalf of the defendant that proves that there was malice or that the state of mind of the defendants was to defame and injure the plaintiff’s reputation.

It was submitted that the absence of proof of malice substantially mitigates the general damages awardable and correspondingly such absence takes away an indispensable limb for the grant of exemplary damages, that there is no evidence neither are there factors on the conduct of the defendants that aggravate the defamation; that on account of matter tending to reduce damages the plaintiff by his testimony stated that he did not avail himself the right of reply neither did he state that he was denied the exercise of this right to enable him clarify the inaccuracy. The Defendants cited Section 7A of the Defamation Act, Cap. 36 Laws of Kenya which entitled the plaintiff to this right which if he did exercise was to be published free of charge and given similar prominence as the item complained of. This right is guaranteed by statute and it is to be affirmatively invoked by a claimant. That the failure to invoke this right is relevant in the assessment of the damages awardable Section 7A (7) of the Defamation Act which is emphatic that:

‘In any civil proceedings for libel instituted by a person or body of persons entitled to a right of reply who or which has failed to exercise such right in accordance with this section the court shall, in the event of it having found in favour of the Plaintiff, be at liberty to reduce the amount of damages which it would have otherwise awarded by such sum as the court considers appropriate having regard to the circumstances of the case.’

The Defendants further referred the court to the recent decisions of the High Court which they were of the opinion demonstrated with sufficient precision the trend of awards in defamation cases thus:-

Jared Omonde Kisera t/a Omonde Kisera & Co. Advocates-vs-Ken Omondi,Wachira Waruru & The Standard Limited HCCC No. 160 of 2001 (unreported) where Hon. Justice Wambilyanga awarded the Plaintiff a global sum of Kshs. 800,000. 00 for defamation and declined to award exemplary damages as he did not deem it fit to do so.

The case of George Shane Okoth t/a Okoth & Company Advocates-vs-The Standard LimitedHCCC No. 12 of 2001 2009 (unreported) where Hon. Justice Mwera (as he then was) sitting in Kisumu awarded the Plaintiff an advocate of the High Court admitted in 1975 general damages of Kshs. 1,500,000. 00 for defamation.

Mongare Gekong’a t/a Gekong’a & Momanyi Advocates-vs-The Standard LimitedHCCC No. 518 of 1999delivered on 17. 12. 2009 where Lady Justice Koome awarded the Plaintiff Kshs. 1,000,000. 00 as general damages for libel.

The defendants argued that the recorded testimony of both the plaintiff and his witness are bare of any specific evidence of the actual damage sustained out of the publication of the alleged defamatory article. That there was no evidence presented to the court in any admissible form such as a computer print out showing that there was an online version of the subject publication. They cited the decision in the case of Nation Newspapers Limited-vs-Gibendi (supra) where the court emphatically held that:-

‘In order to be awarded damages for defamation, it is not enough to establish only the defamation. The Plaintiff must lead evidence of actual damage to his reputation and character in order to enable the court to assess an appropriate award.’

On punitive and exemplary damages, it was argued that the raison d’être of Exemplary damages are to punish a defendant for his/its misconduct. That generally there are limited circumstances/ instances in which a court of law may award general damages. That the first of such circumstance is where a defendant has libeled the claimant for profit. Or secondly where the defendant is a government servant and has acted oppressively, arbitrarily or unconstitutionally. That on the first count there is no evidence on the court record by the plaintiff that there was financial gain derived from the publication. Or that the subject article was the sole reason that made readers to buy the publication to profiteer the defendant media houses

That the fact per se that the article was published in the course of business is itself not enough to infer that there was a financial motive or financial gain for that matter. It was argued that damages of this nature are more often than not awarded where a defendant has deliberately libeled a claimant for profit or where the defendant has acted oppressively or arbitrarily toward the Plaintiff before, and during the trial. the defendants relied on paragraph 243 of Halsbury’s Laws of Englandwhere it is emphasized that:-

‘In demonstrating the defendant’s calculation as to profit, it is not sufficient to show merely that the words were published in the ordinary course of business run with a view to profit; the publication must be intended to make a specific profit.’

The defendants maintained that there is absolutely no evidence presented to show that the defendants had a direct financial gain brought about by the publication of the item complained of. That there is therefore no correlation or inference for financial gain as it has not been established that by publication of the article there was an increased in circulation and profit to the publisher. That there is no intrinsic proof of malice from a reading of the article neither did the plaintiff provide extrinsic proof of malice or lay a basis for an inference of malice to be drawn. Further, that certainly there is nothing to show that that the defendants falsely published the article with a deliberate, overt and calculated attempt to disparage the plaintiff. They submitted that this is not a case fit for award of Exemplary and or punitive damages having regard to the facts as proved. It was submitted that if sufficient account is taken of the peculiar facts of this case, the inflationary effects of the poor state of our economy today caused by the global recession, the diminishing value of the shilling and the inherent mitigating factors a nominal award of Kshs. 200,000. 00 for general damages would be fair and reasonable solatium to the plaintiff.

My Analysis, decision and reasons for the decision

I have carefully considered the pleadings herein, the oral and documentary evidence as adduced by the plaintiff, his witness and the 4th defendant and the elaborate rival submissions by both parties supported by a number of decisions made within and without the jurisdiction of this court as relied on by both parties. I note that the issues framed by the plaintiff basically form the minimum basis for determining whether a matter complained of is defamatory or not, which I accept to be the yardstick for measuring the tort of defamation. I equally accept the questions raised by the defendants' counsel as being important for determination. In my humble view, the case herein raises the following issues for determination:

Whether the words in the impugned newspaper article and as live broadcast by the 5th defendant were, in their natural and ordinary meaning defamatory of the plaintiff’s character, reputation, professional and social standing

Whether the article published by the defendants on 19th February, 2013and the live broadcast by the 5th defendant as hosted by the 3rd defendant of and concerning the plaintiff was false, reckless and malicious

Whether the plaintiff is entitled to general, aggravated, exemplary and punitive damages for defamation.

what orders should the court make

Who meets the costs of the suit?

The plaintiff maintained that he had by his testimony proved that he had been defamed by the defendants and that there exists without a shadow of doubt defamation that maliciously and falsely libels and slanders the plaintiff arising from the statements made by the Defendant in their publication and broadcast of 18th February, 2013 and 19th February, 2013. According to the plaintiff, the defendants had over a period of time from 2010 hatched and persistently engaged in an orchestrated, deliberate and planned habit of defaming the plaintiff for no apparent reason. That the editors and reporters of the first two defendants had published more than 50 separate articles disparaging and attacking him and his character and reputation, integrity, name-calling without any provocation or justification whatsoever. That they had concocted false information that alleged he had said things which he had not said at all. That he had even complained to the Media Council which investigated the matter heard the complaint and fined them two million Kenya shillings which the defendants refused to pay to him. That the Media Council ordered the defendants to apologise to him but they had ignored that verdict and instead continued to defame him. That the orchestrated effort to defame the plaintiff was hatched by the 1st, 2nd and 4th defendants immediately after he published his first memoire and launched his book, with the sole intention of blurring his book. That whenever he exercised his right of reply they refused to publish it. He denied the reports made by the defendants that he ever assaulted or chased his house help. he also denied being questioned by the police over the incident and maintained that he was the complainant against the house help after he received information that she was being used by his foes to endanger his life, and that he gave to the police an oral and written statement concerning his fears when the police went to his house, explaining exactly what had transpired between him and his house help.

According to the plaintiff, the reporting by the defendants was done sensationally and disparaged him. It exposed him to ridicule, odium and was published to millions of viewers and readers who must have watched and read. That the defendants also described him in detail; disclosing, sensationalizing and distorting information about his profession (falsely referred to him as a “controversial political activist” and a “former civil servant”) instead of correctly referring to him as an advocate, writer, author or former advisor to the (former) Prime Minister. That the defendants did not care by the fact that his young children and wife and their friends have also read and been scandalized by the publication of the words complained of. That based on the emails from Mr. David Ohito, the editor of The Standard Digital newspaper, there was a deliberate and coordinated editorial decision of the 1st, 2nd and 5th defendants to portray the Plaintiff as a criminal and a person unworthy of dignity, respect, humane and fair treatment.

The plaintiff sought damages of up to Kenya Shillings 85,000,000 Eight Five million for defamation, the said damages awardable as solatium and vindication for the loss of reputation, for injured feelings, for outraged morality, for having had to suffer the insults, the indignities, the humiliation and the like, and to enable the plaintiff to protect himself against future calumny or outrage of a similar kind while punishing and deterring the defendants never to repeat such conduct of defaming him again. He relied on several authorities from Kenya and Canada which I have considered.

The defendant on the other hand, despite their admission that they published and broadcast the impugned information, they nonetheless denied that the said publication/broadcast were defamatory of the plaintiff. The defendants maintained that the information they disseminated was the truth as it emanated from the plaintiff's own statement which he wrote and send to the media houses and his own interview given to the journalists who visited his home on the material day. Further, that the plaintiff had not discharged the burden of proving on a balance of probabilities that the publication/broadcast defamed him or at all. More particularly, the defendants contended that the plaintiff did not call any witness who read the publication or watched the broadcast and that instead he only called PW1his workman at his Runda Home who stated that there was no incident of the plaintiff assaulting or chasing the house help, but that the witness never testified that he read or saw the broadcast which evidence was insufficient to prove defamation as defined. Further, the defendants contended that there was no evidence of malice on the part of the defendants in publishing or broadcasting the impugned information.

From the above summary of the case herein as presented to court, it is important to set out the various principles of the law of defamation, in order to decide on the main issue of whether the impugned broadcast and publication were defamatory of the plaintiff and whether the said publication was made maliciously.

Article 32(1) of the Constitution is clear that every person has the right to freedom of conscience, religion, thought, belief and opinion and further provides that the freedom to express one’s opinion is a fundamental freedom. Under Article 33(1) (a) every person has the right to freedom of expression, which includes freedom to seek, receive or impart information or ideas. However, clause (3) provides that in the exercise of the right to freedom of expression, every person shall respect the rights and reputation of others. This, in my view, is the constitutional fulcrum of the law of defamation. Accordingly, the law of defamation is not just anchored on a statutory enactment under the Law of Defamation Act but has been given a constitutional underpinning as well. In a claim predicated on the tort of defamation the Court is therefore under a duty to balance the public interest with respect to information concerning the manner in which public affairs are being administered with the right to protect the dignity and reputation of individuals.

Defamation is a tort and is defined variously with not one agreed single definition that fits it all. It all depends on the circumstances of each case. Generally, however, the case of J. KUDWOLI V EUREKA EDUCATIONAL AND TEACHING CONSLTANTS & 2 OTHERS HCC NO. 126 OF 1990 sets out the issues a plaintiff in a suit founded on defamation be it libel or slander must prove and these are:

the matter of which the plaintiff complains was published by the defendant;

the publication concerned or referred to the plaintiff

that it is defamatory in character

that it was published maliciously and;

that in slander, subject to certain exceptions, that the plaintiff has thereby suffered special damage.

It is not in dispute that there was indeed the impugned publication/broadcast, which were made by the defendants herein and which publication /broadcast concerned the plaintiff and his encounter with his house help. The only issue in contention iswhether the words in the said newspaper article and as live broadcast by the 5th defendant KTN and anchored by the 3rd defendant James Smart were, in their natural and ordinary meaning defamatory of the plaintiff’s character, reputation, professional and social standing and whether the same were published/broadcast maliciously.

In the case of WYCLIFFE A. SWANYA VERSUS TOYOTA EAST AFRICA LIMITED AND FRANCIS MASSAI NAIROBI CA NO. 70 OF 2008 decided by the Court of Appeal on the 13th day of March, 2009, the learned Judges of Appeal held that :-

“It is common ground that in a suit founded on defamation the plaintiff must prove:-

(i) That the matter of which the plaintiff complains is defamatory in character.

(ii) That the defamatory statement or utterances was published by the defendants publication in the sense of defamation means that the defamatory statement was communicated to someone other than the person defamed.

(iii) That it was published maliciously.

(iv) In slander subject to certain exceptions that the plaintiff has suffered special damages.”

Visram J in RICHARD OTIENO KWACH VERSUS THE STANDARD LIMITED AND DAVID MAKALI NAIROBI HCCA NO. 1099 OF 2004 observed that:-

“Words are defamatory if they involve a reflection upon the personal character or official reputation of the plaintiff…”

From the understanding that a defamatory statement is a false statement of fact or publication that exposes a person to hatred, ridicule, or contempt, causes him to be shunned, or injures him in his business or trade, it follows that statements that are merely offensive are not defamatory (e.g., a statement that John smells badly or is a cow would not be sufficient (and would likely be an opinion anyway)). Courts generally examine the full context of a statement's publication when making this determination. It emerges that the publication to a plaintiff alone is not enough, because defamation is an injury to one’s reputation and reputation is what other people think of a person who alleges he was defamed and not his own opinion of himself.In addition, in order for the plaintiff to prove that he was defamed, he must tender evidence to prove that the published words tended to cause other people to was shun or avoid or treat him/ her with contempt following the defamation.Thus, since the defamatory statement is one which has a tendency to injure the reputation of the person to whom it refers by lowering him in the estimation of the right thinking members of society generally and in particular to cause him to be regarded with feelings of hatred, contempt, ridicule, fear, dislike and disesteem ( typical examples are an attack upon the moral character of a plaintiff attributing to him any form of disgraceful conduct such as crime, dishonesty, cruelty and so on); it therefore follows that Defamation is not about publication of falsehoods against a person; it is necessary to show that the published falsehood disparaged the reputation of the plaintiff or tended to lower him in the estimation of right thinking members of society generally. However, whereas mere abusive words may not be defamatory, the speaker of the words must take the risk of his audience construing them as defamatory and not simply abusive, and the burden of proof is upon him to show that a reasonable and right thinking person would not have understood them in the former sense. In libel, however, the words cannot be protected as mere abuse since it is presumed that the defendant had time for reflection before he wrote them.

Further, an injurious falsehood may not necessarily be an attack on the plaintiff’s reputation. 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.

As opposed to slander, libel is punishable per se without proof of damage and the actual sum to be awarded is “at large” and although a person’s reputation has no actual cash value, the Court is free to form its own estimate of the harm taking into account all the circumstances. 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.

In the instant case, this court does appreciate that every person whether natural or legal entity, man or woman is entitled to his alleged good name and to the esteem in which he is held by others and towards that end, has a right to claim that his reputation shall not be disparaged by defamatory statements made about him/her without lawful justification or excuse. It means that if defamatory statements are made in writing or printing or some other permanent form the tort of libel is committed and the law presumes damages to follow. If defamation is oral or in some other transient form, it constitutes the tort of slander which is not actionable perse at common law without proof of actual damage.

The plaintiff claimed that he was libelled by the publication of 19th February 2013 and the live television broadcast on 18th February, 2013 on Kenya Television Network, the 5th Defendant herein. The object of the plaintiff’s case is to vindicate his reputation, character and/or dignity and to make reparation for the private injury done by the alleged wrongful publication and broadcast. It is therefore incumbent upon him faced with such a situation to prove the truth of the defamatory matter and thus show how he has been ridiculed, shunned, avoided, disesteemed and or feared. In essence it means that defamation reflects upon the plaintiff personally and therefore the plaintiff must prove that the words complained of were published and/or printed with actual and deliberate malice and without legitimate reason against his character, reputation and dignity. On the other hand, the offensive statement of slander through live broadcast must be proved to be false and that it was broadcast with actual malice towards the plaintiff and causing actual damages so that an award in damages can attach.

The essence of a defamatory statement is its tendency to injure the reputation of another person. And it is upon the person seeking damages for defamation to show or establish how he was exposed to public hatred, contempt or ridicule or that the words had caused him to be shunned or avoided to by certain people. See Gatley on Libel and Slander (8th edition para.31).It is also for the plaintiff to prove that the natural effects of the published words were meant to destroy, demean, degrade and diminish the esteem in which he was ordinarily and generally held. And that because of the derogatory imputation conveyed by the slanderous broadcast, he lost something which he is legally entitled to.

In an action for defamation, the actual words complained of and the substance must be proved by the plaintiff. And it is not sufficient to show the defendant made defamatory statements. The plaintiff must give particulars of the facts and matters from which the malice is to be inferred. He must show to court that the defendant acted maliciously. In my humble view, words are not defamatory perse, there has to be a statement of fact or expression of opinion or imputation conveyed by them, which will have the effect of defaming an individual and lowering him in the eyes or estimation of right thinking members of the society generally.

The question which must be answered is that albeit there was publication and broadcast of the words as pleaded and testified on by the plaintiff and conceded by the defendants, is there evidence to prove that the plaintiff was defamed and that therefore his character, reputation, profession and dignity suffered by being lowered in the estimation of right thinking members of the society generally, that he was exposed to public scandal, opprobrium, odium, contempt and that he had experienced diminution of his stature and character as an advocate of repute in the legal profession, an author, consultant etc? and or that he has suffered a general or actual loss in his business and calling, and serious injury to his dignity and self confidence by the broadcast made by the defendants?

The plaintiff testified that he is a Certified Mediator, Publisher and Commentator and eked a living from writing, offering consultancy services to clients in Kenya and abroad. That he was formerly employed as a Senior Advisor to the former Prime Minister Hon Raila A. Odinga but later relieved of his duties and later recalled but declined is not in doubt. It is also not in dispute that the plaintiff is an advocate of the High Court of Kenya and a married man with a family comprising a wife and children. Regrettably, the plaintiff presented a witness who merely denied any incident between the plaintiff and his house help. The witness, in my view, was not a witness in a defamation case. He was in court stating state how he was told by the plaintiff’s house help that the plaintiff’s foes from the plaintiff’s former office at the former Prime Minister Raila Odinga had paid her to poison the plaintiff and how the plaintiff did not chase or assault the house help. What is before this court is not a criminal trial. The plaintiff was not on trial for having allegedly assaulted his house help. The plaintiff did not require a witness to exonerate him from blame of assaulting his house help. He needed a witness to say that he saw the impugned broadcast and read the offensive publication and that what was written/published /broadcast of and concerning the plaintiff was not true because as a fact, he knows the plaintiff not to be a criminal/nonviolent/vicious, arrogant person and that the plaintiff did not in any even assault or chase his house help as alleged by the said publication/broadcast.

Unfortunately, in the present case, I have no important evidence presented before me showing that the said publication and or broadcast had a bearing on the affairs of the plaintiff whether as a person, an advocate, family man, politician or other business that he may have been engaged in as an author of various books, one of which he had just launched before the impugned publication/broadcast were made. I have not been shown any evidence to the effect that as a result of that publication and or broadcast the plaintiff has been viewed differently from the way he was viewed before or that he has become a lightweight as a person, professionally, financially and or politically or in any other manner.See SIMEON NYACHAE v LAZARUS RATEMO MUSA & ANOTHER [2007] eKLR. Warsame J(as he then was).

I reiterate that although the plaintiff called PW1 who gave evidence on the plaintiff's behalf that no incident took place at the plaintiff's residence concerning the plaintiff and his house help Millicent, and that the plaintiff never assaulted or chased the said house help as alleged and that neither was the plaintiff arrested for alleged assault, without PW1 making any reference to the publication and or broadcast, and without PW1 or any other witness who can fit the description of a right thinking member of the society generally being called to testify to the effect that they read and or watched the impugned publication and or broadcast and how they felt about the whole issue, the plaintiff's case fell short of proving any defamatory statement made against him. In other words, there is no evidence to show that the plaintiff was viewed very positively before the publication/ broadcast and or that thereafter the publication /broadcast of the impugned publication/broadcast, he was shunned, avoided, disparaged, insulted, ridiculed or that he had suffered any form of dent, stigma, loss of business, clients or job opportunity due to the publication/ broadcast. There was necessity for independent evidence to show that indeed there are those who believe the plaintiff was defamed by the publication and live broadcast. I say so because it is not unusual in some rare cases to find a plaintiff who can be “libel-proof”, meaning he or she has a reputation so tarnished that it couldn’t be brought any lower, even by the publication of false statements of fact of and concerning him or her. It was therefore important that the plaintiff in this case proves that he was not that ‘libel proof’ person. That he has a good reputation to protect.

In this case, although the plaintiff overzealously prosecuted his case pro se, himself being a practicing advocate of the High Court of Kenya, but as the Swahili saying goes that “Mganga hajigangi" (English Translation for a doctor cannot treat himself),it came true for the plaintiff in this case. He did not find it necessary to seek legal advice on how to conduct his own case where he was offended by the defendants.

This court makes it firmly and pretty clear that it is not in every claim of defamation and where there is alleged falsity that it will find for the plaintiff. The burden of proof entirely lies with the plaintiff by evidence that he was defamed and all the ingredients that fit the description for defamation must be present.

Further, this court does indeed and has in the past encouraged responsible, accurate and mature reporting and or broadcast by the media. However, a court of law is not a theatre where parties gather to fight the press by allowing every such claim of defamation where there is no proof that the claimants had any good character and or reputation capable of being lowered in the estimation of right thinking members of the society generally. In this case, and from the plaintiff’s submissions, the plaintiff assumed that his good character was in the public domain and therefore the court should take judicial notice of that fact. He enthusiastically submitted of how the defendants had been defaming him without ceasing and that they had hatched a plan to continue defaming him and that in this case they defamed him to blur the book that he had just launched. This court plays its role of umpire and no more. It cannot assume by speculating the good character of the plaintiff, that he is a person of good repute and that by the publication and broadcast, that good character and reputation has been lowered in the estimation of any right thinking member of the society generally and exposed to ridicule, hatred and contempt.

Those right thinking members of the society generally who know and esteem the plaintiff as a reputable person must be called to testify and satisfy the court that indeed the publication/broadcast tended to make the plaintiff to be shunned, ridiculed or avoided or viewed differently. In this case, the plaintiff failed to satisfy the court that his good character and reputation or profession was put to doubt by the publication/broadcast.

It is also not sufficient for the plaintiff to assume that, and as testified by DW1 that the plaintiff then was a household name, because he is known in this country and beyond as a commentator, author, advocate and or former Advisor to the former Prime Minister Raila Odinga then the millions of people who are alleged to have read or watched the publication/broadcast are his apparent witnesses to the fact of his perceived good reputation and good standing and that he has been brought to disrepute by the publication. The plaintiff cannot be his own witness in a defamation case on what he or others perceive to be his good character. A book, however good or bad it is, cannot read itself. It must be read by others who can tell how good or bad it is. It is therefore worth mentioning that what this court witnessed in this case was nothing but mere showy drills of the plaintiff's self praise assertions which are devoid of proving the claim of defamation. Among the plaintiff’s showy drills are statements like:

“That they also described him in detail; disclosing, sensationalizing and distorting information about his profession (falsely referred to him as a “controversial political activist” and a “former civil servant”) instead of correctly referring to him as an advocate, writer, author or former advisor to the (former) Prime Minister.

Parties must be reminded that a personality is like a book that must be read and analysed and this court is quite alive to that fact, for, not even H.E the President, Judges, Cabinet Secretaries, politicians, Bishops and Pastors among others and many other prominent persons in this country have been spared by commentaries in the media. Yet it cannot be true as painted by the plaintiff that every comment made against him by the defendants media whom he himself allowed into his homestead and gave an interview and provided them with a written statement authored by himself and given to the police is defamatory of him simply because it is not perfect truth, without him availing any evidence of how defamatory of him the publication/broadcast was.

The court further reminds the parties that as an advocate of this Honourable court, it was not sufficient for the plaintiff to passionately state in his submissions that “he had to suffer the insults, the indignities, the humiliation and the like, and to enable the plaintiff to protect himself against future calumny or outrage of a similar kind,” damages must be awarded to him irrespective of whether there was before the court evidence of who out of millions of readers of the publication/broadcast considered him a person of repute capable of being disparaged by the defendants and therefore seeking the protection of the court against such future calumny or outrage of a similar kind. The Court of Appeal in Daniel Toroitich Arap Moi v Mwangi Stephen and another [2011]eKLR made it clear that:

“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.”

In this case, i find that the plaintiff tended to adduce evidence in his submissions as most of what is contained in his skeletal and final submissions is not part of the evidence adduced. An example is the events that took place in July 2012 and were published/aired by the 5th, 1st and 2nd defendants. Albeit the plaintiff wanted this court to believe that that the publications were aggravating factors, in the view of this court, the plaintiff did not lay any evidence that those publications/ broadcasts in 2012 were as produced, defamatory of him. For example, in the trial record of exhibit book as filed on 24th November 2014 is the documentation and decision on the complaint lodged to the Media Council. In that matter, the plaintiff complainant had complained that the 1st defendant had published on July 29th 2010 an article “why won’t Miguna let sleeping volcanoes lie” stating that the article was misleading, inaccurate, promotes ethnic animosity, and is derogatory. The Media Council verdict found the article in violation of clause 22 of the code of conduct and ordered the Standard Newspaper to apologize to the plaintiff. It also imposed which fine was to be paid to the Media Council not to the plaintiff. The Media Council also reprimanded the Respondent therein. The proceedings did not allege defamation and neither did the verdict say that the plaintiff was defamed.

The plaintiff also submitted thatbased on the emails from Mr. David Ohito, the editor of The Standard Digital newspaper; there was a deliberate and coordinated editorial decision to portray the Plaintiff as a criminal and a person unworthy of dignity, respect, humane and fair treatment. The question is, was the reference to Mr David Ohito's email supposed to demonstrate that he read the publication and saw the broadcast and was Mr Ohito therefore one of those right thinking members of the society that was shunning or avoiding the plaintiff, or as the defendant's editor, he was adding insult to injury by portraying the Plaintiff as a criminal and a person unworthy of dignity, respect, humane and fair treatment? From the plaintiff's evidence it is not clear whether that email was a further defamation being orchestrated by the editorial team of the defendants or otherwise. And if Mr David Ohito who works for the 1st and 2nd defendants Digital newspaper was a concerned person, the question is, why did the plaintiff not call him as his witness? From that email, this court is unable to link it to the publication and or broadcast and even if I was to link it to the publication /broadcast, the plaintiff’s own evidence was clear that he is the one who called Mr David Ohito following the broadcast. In that case, therefore, it clearly emerges that the plaintiff was soliciting for information from insiders at the defendants’ place of business/employment, not that anybody on their own volition and out of concern send him an email after the publication/broadcasts. Defamation is hinged on credibility of a person and the evidence that he or she adduces in court. One cannot be permitted to solicit for an email or feed back on alleged defamatory material and use it to claim that he was defamed and seek damages. Furthermore, that email from ohito was only referred to in the submissions. It was not part of the list of documents in the bundles filed and produced and neither was it produced as an exhibit.

In addition, albeit the plaintiff alleged that the publication and broadcast were cached and archived in the 1st, 2nd, and 5th defendants online editions and websites and in his list of documents listed http://www.youtube.com/watch?v=hfFvaqk _MeK, and that the publications were on twitter, face book and walls, the plaintiff never produced that evidence in court. He also submitted loosing employment opportunity with Radio Africa Group Ltd and the Royal Media Group but he never adduced any evidence to prove those allegations. The allegation that the defendants alleged his books contain unsubstantiated allegations is not by any stretch of imagination defamatory and it was not proved to be so defamatory of the plaintiff.

In the case of NATION NEWS PAPER LIMITED VERSUS CHESIRE (1984) KLR 156 the Court of Appeal held inter alia that:-

“(1) An action for libel by innuendo depends for its success on the proof by the plaintiff that special circumstances are known to persons who read the offending publication and evidence of the special circumstances.

The Court also observed that:-

“To succeed in an action of defamation the plaintiff must not only prove that the defendant published the words but that they are defamatoryand that he has identified himself as the person defamed…”

I must reiterate that the law is trite that he who alleges must proof.( See section 107,108 and 109 of the Evidence Act, Chapter 80 Laws of Kenya). In defamation, the evidence must show that the subject publication makes right thinking members of the society shun or avoid the plaintiff and that it lowers him in the estimation of those people. The Plaintiff’s evidence fell short of that requirement since he cannot as rightly submitted by the Defendants’ counsel, be his own witness on the issue of perception had by other people who know him on his character reputation or profession.

I am also fortified by the holding by the Court of Appeal in Daniel N. Ngunia – V – KGGCU Limited, CA 281 of 1998. In that case, the Plaintiff claimed that he had been defamed by the Defendant. He did not call any witness. The Defendant pleaded the defence of qualified privilege. The court noted that besides the question of privilege upon which the trial judge had dismissed the Appellant’s claim, it also noted that the Appellant was the only person who testified in support of his claim. It stated:-

“In those circumstances, we cannot see how a claim based on defamation could have possibly succeeded even in the absence of the defence of qualified privilege.”

I have no reason to differ with the above authoritative and binding decision of the Court of Appeal. I am also in agreement with the persuasive decision of Aganyanya J. (as he then was) in George Mukuru Muchai Vs The Standard Limited, HCCC No .2539/1997, where the learned judge held inter alia:

“In my view, the most important ingredient in a defamation case is the effect of the spoken or written words in the mind of third parties about the complaint and not how he/she himself/herself feels the words portray about him/her.”

In Clark and Lindsel on Tort 17th Edition London, Sweet and Maxwell 1995 at page 1018 paragraphs 21-12 there is observation that:-

“Whether a statement is defamatory or not does not depend on the intention of the defendant but on the probability of the case and upon the natural tendency of the publication having regard to the surrounding circumstances. If the words published have a defamatory tendency it will suffice even though the imputation is not believed by the person to whom they are published. The mere intention to vex or annoy will not make a language defamatory which is not so in its own nature. Words apparently defamatory may be proved by the evidence of the circumstances to have been understood in another and involvement meaning.”

Further there is the case of MIKIDADI VERSUS KHAIGAN AND ANOTHER (2004) KLR 496wherein Ochieng Ag J as he then was now J held inter alia that:-

“A successful plaintiff in a defamation action is entitled to recover as general compensation damages such sum as will compensate him for the wrong he has suffered. That sum must compensate him for the damages to his reputation, vindicate his good name and take account of the distress, hurt and humiliation which the defamatory publication has caused. The court must take the necessary precaution to ensure that whatever award it gives to a successful plaintiff is generally in line with what courts have been awarding …”(emphasis added).

In this case, the plaintiff has failed to provethat he is entitled to vindication for the distress, hurt and humiliation which the publication/broadcast has caused to his good name . therefore, having found that the plaintiff did not prove that he was defamed or at all, the issue of whether there was malice does not arise, although I have in this judgement clearly stated that the plaintiff did not proof malice by the publication/ broadcast. It is for those many reasons that I find that the plaintiff has not discharged the burden of proving his case against all the defendants jointly and severally on a balance of probabilities and I proceed to dismiss the plaintiff’s suit against all the defendants.

In the event that Iam found to be wrong in the verdict that I have reached on proof and liability of the defendants, the law obliges me to assess damages I would have awarded the plaintiff had I entered a verdict in his favour.

I have considered the submissions by the plaintiff and defendants' counsel on quantum of damages and the authorities relied on by both parties. In this regard, and as was statedin High Court Civil Case No. 833 of 2000,Joseph Rading Wasambo v The Standard Limited, that in the assessment of damages, the legal process must for its own credibility, strike a proper balance between the demands by litigants and what is fair and reasonable in given circumstances. I also adopt a good guide from the following observations found inThompson v Commissioner of Police of the Metropolis and HSU v Commissioner of Police of the Metropolis [1997]2 AII ER 762 (at page 771):

"Any legal process should yield a successful plaintiff appropriate compensation, that is, compensation which is neither too much nor too little - - - - No other result can be accepted as just …. But it serves no public purpose to encourage the plaintiffs to regard a successful libel action, risky though the process undoubtedly is, as a road to untaxed riches. Nor is it healthy if any legal process fails to command the respect of lawyer and layman alike …."

In the cases of NATION MEDIA GROUP LIMITED, MUTEGI NJAU AND BOB KIOKO VERSUS JOHN JOSEPH KAMOTHO, CHARLS GITHII KAMOTHO, JAMES KAMOTHO AND DAVID KAMOTHO NAIROBI CA 284 OF 2005decided by the Court of Appeal on the 25th day of March, 2010 drawing inspiration from its own decision in the case of JOHNSON EVAN GICHERU VERSUS ANDREW MORTON AND ANOTHER CA NO. 314 OF 2000 the Court held that:-

“The latitude in awarding damages in an action for libel is very wide, the case of TANGANYIKA TRANSPORT CO. LIMITED VERSUS EBRAHIM NOORAY (SUPRA) PRAUD VERSUS GRAHAM 24 Q.B.D. 53, 55 that in an action of libel the trial court in assessing damages is entitled to look at the whole conduct of the defendant from the time the libel was published down to the time the verdict is given. It may consider what this conduct has been before action, after action and in court during the trial”; the case of BROOM VERSUS CASSEL & CO. (1972) A.C. 1027 where in the House of Lords stated that:-

“In action of defamation and in any other actions where damages for loss of reputation are involved, the principle of restitution in integrum has necessarily an even more highly subjective element such actions involve a money award which may put the plaintiff in a purely financial sense in a much stronger position than he was before the wrong. Not merely can he recover the estimated sum of his past and future losses, but in case the libel driven underground, emerges from its lurking place at some future date, he must be able to point to a sum awarded by a jury sufficient to convince a by slander of the baselessness of the charges; lastly the case of UREN VERSUS JOHN FAIRFAX & SONS PTY LIMITED 117 C.L.R.115,150: Where in Windeyer J made observation that:-

“It seems to me that, properly speaking a man defamed does not get compensated for his damaged reputation. He gets damages because he was injured in his reputation that is simply because he was publicly defamed. For this reason, compensation by damages operates in two ways- as a vindication of the plaintiff to the public and as consolation to him for a wrong done. Compensation is here as solatium rather than a monetary recompense for harm measureable in money.”

In other words, damages are to be awarded are compensatory save in exceptional circumstances i.e. to restore or give back the party injured what he lost. In the case of WAMBUGU NJOROGE VERSUS KENYA COMMERCIAL BANK LIMITED CIVIL APPEAL NO. 179/92 (UR)it was held inter alia that:

“malice can be inferred where the defendant in publishing the information knows the statement to be false or did not care whether it be true or false and regard it to be heard to the defendants conduct and the information available to him."

Further inspiration is drawn from the case of TANGANYIKA TRANSPORT CO. LIMITED VERSUS EBRAHIM NOORAY (1961) EA 55 wherein it was held inter alia that:-

“In actions of libel the trial court in assessing damages is entitled to look at the whole conduct of the defendant from the time the libel was published down to the time the verdict is given. It may consider what his conduct has been before action, after action and in court during trial.”

In the case of DANIEL MUSINGA T/A MUSINGA & CO. ADVOCATES VERSUS NATION NEWSPAPERS LIMITED MOMBASA HCCC NUMBER. 102 OF 2000 Khaminwa J (as she then was) cited with approval the case of JOHN VERSUS M.G.N. LIMITED (1996) 2. A ER 35 that:

“The successful plaintiff in a defamation action is entitled to recover as general compensation damages. Such sum as will compensate him for the wrong he has suffered. That sum must compensate him for damages to his reputation, vindicate his good name, and take account of the distress” hurt and humiliation which the defamatory publication has caused.”

In the case of BIWOTT VERSUS DR IAN WEST AND ANOTHER NAIORBI HCCC.1067 OF 1999 it was held inter alia that:-

“In compensation damages, what is to be awarded is such sum as will compensate him for the wrong he has suffered. The sum must compensate him for the damage to his reputation vindicate his good name, and take account of the distress, hurt, humiliation which the defamatory publication has made”

The plaintiff did not prove that his reputation was damaged, that he was distressed, hurt, humiliated, insulted or that he was shunned and or ridiculed by any person whether family member, professional colleagues or clients due to the allegations that he had assaulted his house help and that he had been questioned by the police over the alleged "saga or” “drama”

Nonetheless, libel if proved that the plaintiff is a violent person and that he without any justifiable cause assaulted his house help Ms Millicent if proved is a criminal offence under section 194 of the Penal Code attracting up to 2 years imprisonment with or without a fine or with both. In addition, assault of a person is a crime under section 250 of the penal Code Cap 63 Laws of Kenya. It is a misdemeanour and where the assault causes actual bodily harm, the person when found guilty is liable to be imprisoned for a term of 5 years. Under Section 16A(1) of the Defamation Act :

"16 A (1) in any action for libel, the court shall assess the amount of damages payable in such amount as it may deem just:

Provided that where … the libel is in respect of an offence punishable by imprisonment for a term of not less than three years the amount assessed shall not be less than four hundred thousand shillings."

The plaintiff contended that that publication of the defendant’s impugned publication and broadcast was to the whole nation and the defendants’ online edition and website too as well as social media platforms wherein the publication and broadcast are cached.

The principles governing the award of damages in libel cases were discussed at length in the Biwott v. Clays (2000) 2 EA 334 and Machira v Mwangi (2001) EA 110. The Court of Appeal in JohnsonEvan Gicheru v Andrew Morton (C A No. 314 of 2000, Nairobi) awarded KShs.6 million where the offending publication was in a book with international coverage. The Court of Appeal in that case Johnson Evan Gicheru (supra) applied the guidelines given in Jones v Pollard (1997) EMLR 233 regarding the quantum of damages in libel cases that:-

“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.”

Applying those principles, and based on the evidence before the court, and taking into account all the surrounding circumstances of this case including the fact that this was a one-time publication and broadcast, and as the plaintiff did not adduce any evidence showing that the same broadcast or similar matter was repeatedly broadcast, or that it was cached in the websites of the 1st, 2nd or 5th defendants or that it does exist in the social media platforms including twitter and face book as submitted, although he sought for a total sum of Kshs 85,000,000, an all inclusive figure of Kshs.5, 000,000 would suffice. I have considered the following factors;

Whether the fact of the plaintiff being an advocate of the High Court of Kenya, the allegations in the publication/ would impute that he is a violent, arrogant person who assaults his domestic servants and therefore lower him in the estimation of the right thinking members of the society generally

Would the imputation that the plaintiff assaulted his house help tend to cause his friends, relatives, family members, professional colleagues and others who associate themselves with the plaintiff shun or avoid the plaintiff?

Would the words as broadcast and published tend to expose the plaintiff to hatred, contempt or ridicule among the general population?

The fact that the 1st, 2nd and 5th defendants did not put up any correction or apology in their paper/broadcast.

On whether the court should award damages for aggravating /exemplary and punitive damages, It was submitted that there are also aggravating factors in this case and compensatory damages should be awarded. It was argued that the alleged defamatory words were concocted, published, repeated, and widely disseminated to millions of people around the world via both hard copy and electronic versions of The Standard, The Standard Digital, KTN, The Standard on Saturday, The Sunday Standard and various websites owned and operated by The Standard Group Ltd. That the Standard Group Ltd. is the oldest media house in Kenya and the second largest. That The Standard Limited publishes The Standard newspapers, which have the second largest national circulating newspapers in Kenya with a daily circulation of more than 350,000 hard copies. That the newspaper is accessible electronically to hundreds of millions of people around the world. Thereby, the alleged published libel and broadcast complained of must have been disseminated to hundreds of millions of people. The Plaintiff argued that the alleged libel continues to be published on an electronic platform owned by the 2nd and 5th Defendants as well as those belonging to third party electronic platforms or carriers or websites which continue to archive the offending words in retrievable forms. The plaintiff contended that even though other media houses or publications like The Daily Nation and The Star had attended at the Plaintiff’s home on 18th February, 2013, it was only the Defendants that published and disseminated false allegations about the Plaintiff. That based on the emails from Mr. David Ohito, the editor of The Standard Digital Newspaper; there was a deliberate and coordinated editorial decision to portray the Plaintiff as a criminal and a person unworthy of dignity, respect, humane and fair treatment. The Plaintiff argued that the aforegoing proves that the Defendants’ actions were actuated by malice.

This court on the evidence available on record as adduced does not find any aggravating circumstances that would have persuaded it to award the plaintiff aggravated/exemplary and or punitive damages as was claimed. There was no evidence of republication or rebroadcast of the impugned matters after the 18th and 19th of February, 2013. There was also no evidence showing that before the publication and broadcast the defendants conducted themselves in a malicious manner or that indeed there was an coordinated strategy to consistently and or persistently defame the plaintiff and or that the defendants had been in the habit of defaming and indeed defamed the plaintiff and therefore hell bent to destroy his good reputation.

The Supplementary list and bundle of Documents produced which included the newspaper publications for July 2012 and Video broadcast showing mass action against the plaintiff in Nyando in 2012 was not demonstrated by the plaintiff to be forming part of the orchestrated or same transaction as the matters pleaded in this case and leading to the alleged defamation giving rise to this cause of action. In my view, those matters which were not even pleaded would only form a separate cause of action away from the instant facts of this case. In addition, and as i have already alluded to the email from Mr Ohito, the editor of Standard Digital, it was never part of the evidence filed by the plaintiff or defendant for production. The evidence of email extracts only emerged in the plaintiff’s submissions which as I have stated before, is inadmissible. Besides, the plaintiff testified that it is him who called the said Mr Ohito and according to the DW1, the plaintiff send Mr Ohito the written statement that Raila was trying to kill him which statement the plaintiff complained that the defendants refused to publish. Therefore, in the absence of any aggravating circumstances, this court is unable to find that the plaintiff would be entitled to any aggravated, exemplary or compensatory or punitive damages claimed.

The court would also award the plaintiff costs of this suit that would be subject to taxation by the Taxing Officer as provided for under the Advocates Remuneration Order (Cap 16) Laws of Kenya. Although the plaintiff sought fixed costs of shs 15, 096,250 excluding other costs of adjournment or as awarded by the court during the proceedings, I would have awarded him costs of the suit subject to taxation by the Taxing Officer. The submission by the plaintiff that the costs should be fixed by the court is not supported or at all as Taxation of costs is governed by a totally different and independent regime under the Advocates Act Cap 16 Laws of Kenya and the special jurisdiction to tax costs is conferred on the Taxing Officer, normally a Deputy registrar of the Court, with the judge having the residual power to hear any references challenging the taxation. This court is not about to accept to be clothed with the power to usurp that power vested in the Deputy Registrar of this Court as the Taxing Officer, however urgent or important the matter or parties may be and whatever the circumstances of the case.

I would also have awarded the plaintiff interest on general damages from the date of judgement until payment in full based on the findings herein below. The plaintiff sought for pre and post judgment interest to be awarded to him. The defendants opposed those prayers and contended that the practice of the courts in Kenya is clear that interest on general damages is only earned from date of judgment and not before. In determining that issue, Iam guided by statute law and precedents.

Section 26 (1) of the Civil Procedure Act provides that:-

(1) Where and in so far as a decree is for the payment of money, the court may, in the decree, order interest at such rate as the court deems reasonable to be paid on the principal sum adjudged from the date of the suit to the date of the decree in addition to any interest adjudged on such principal sum for any period before the institution of the suit, with further interest at such rate as the court deems reasonable on the aggregate sum so adjudged from the date of the decree to the date of payment or to such earlier date as the court thinks fit.”

From the above provisions of the substantive law on interest, it is clear that interest can be awarded both pre judgement and post judgment. However, the practice of the courts has been that pre-judgment interest can only be awarded on special damages since in such cases, it is clearly right that a party has been deprived of the use of the money to which he is entitled and should be compensated by such deprivation by an award of interest from either the date when the cause of action accrued or from the date of filing suit. In Fernandes Vs People Newspapers Limited [1972] EA and Prem Lata vs. Mbiyu [1965] EA 592 63 (2), the Court of Appeal made it clear that:

“In personal injuries cases, interest on general damages should not be awarded for the period between the date of filing suit and judgment but interest should normally be awarded on special damages if the amount claimed has been expended or incurred at the date of filing of suit.”

Further in Mukisa Biscuits Manufacturing CO. Ltd –V- West End Distributors Ltd. (1970) EA. 469 where the claim arose from contract, the court held (CA):

“While a judge had powers to award interest from a date prior to judgment where damages are to be assessed by the court, interest should only be given from the date of judgement.”

The Court of Appeal further emphasised that:-

“The principle that envisages is that where a person entitled to a liquidated amount or to specific goods and has been deprived of them through the wrongful act of another person, he should be awarded interest from the date of filing suit.”

In other words, Section 26 of the Civil Procedure Act gives to empowers the court to award interest both pre and post judgment date, but gives discretion on the matter. That discretion must however be exercised judiciously, logically and rationally as espoused in the principles set out in the above decisions of the Court of Appeal.

Further guidance is found in the Court of Appeal for Eastern Africa decision in the case of Dipak Emporium vs. Bond's Clothing Civil Appeal No. 64 of 1972 [1973] EA 553 where the court held:-

“The court’s right to award interest is based on section 26(1) of the Civil Procedure Act (Cap 5) which states that where and in so far a decree is for the payment of money, the court may, in the decree, order interest at such rate as the court deems reasonable to be paid on the principal sum adjudged from the date of the suit to the date of the decree in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, with further interest at such rate as the court deems reasonable on the aggregate sum so adjudged from the date of payment or to such earlier date as the court thinks fit…Where a person is entitled to a liquidated amount or to specific goods and has been deprived of them through the wrongful act of another person, he should be awarded interest from the date of filing suit. Where, however, damages have to be assessed by the court, the right to those damages does not arise until they are assessed and therefore interest is only given from the date of judgement.”

Similarly in Samuel Philip Kidoti Vs Kenya Cargo Handling Services Ltd. CA No. 76 of 1992, the Court of Appeal was clear that:

“General damages bear interest from the date of judgment while special damages bear interest from the date of filing of the suit.”

It is therefore trite that an award of interest on general damages in a case of this nature can only be made to the effect that interest would run from the date of judgement till payment in full.

All said and done, as the plaintiff did not prove his case against the defendants, jointly and severally on a balance of probabilities, I hereby dismiss the suit as filed against all the defendants and award him nothing.

Costs of the suit follow the event as espoused in section 27 of the Civil Procedure Act and to the successful party. They are however, awarded in the discretion of the court. In this case, there is no reason why the defendants who were dragged into court and who have spent time and money defending a zealously yet hopelessly prosecuted case cannot be compensated by an award of costs. Accordingly, I hereby award costs of this dismissed suit to the defendants.

Those are the orders of this court.

Finally, I must thank the parties for the detailed submissions which enabled the court to filter and obtain only that which was relevant to this suit and arrive at this rather lengthy determination, in an effort not to exclude any useful information.

Dated, Signed and Delivered in open court at Nairobi this 12th day of February, 2016.

R.E.ABURILI

JUDGE