[2022] KEHC 18129 (KLR)

Muiruri v Maina (Civil Suit 1 of 2015) [2022] KEHC 18129 (KLR) (15 December 2022) (Judgment)

Neutral citation: [2022] KEHC 18129 (KLR)

Republic of Kenya

In the High Court at Garsen

Civil Suit 1 of 2015

SM Githinji, J

December 15, 2022

Between

William Kariuki Muiruri

Plaintiff

and

Shadrack Murimi Maina

Defendant

Judgment

1. Vide a Plaint dated September 14, 2015, the Plaintiff sought the following orders;a.General Damages for slander.b.Exemplary and aggravated damages for slander.c.A permanent injunction prohibiting and restraining the Defendant, his servants and/or agents from publishing or making it published and from further slander in any manner whatsoever of the character and reputation of the Plaintiff.d.A complete and unequivocal withdrawal, retraction and apology from the Defendant in the same manner slandered and of equal prominence.e.Costs of the suit.f.Interests on amounts awarded on (a), (b) and (f) above at Court rates from date of filing of this suit until payment in full.

2. The Plaintiff in Paragraph 7 of the Plaint averred that on the 25th day of September, 2014 while at Mkondoni in Hindi Magogoni within Lamu County, the Defendant uttered insult and defamatory words towards him. That the said words were malicious and calculated to defame the character of the Plaintiff and consequently endanger his life with the sole malicious purpose of inciting the public to forcefully evict him from his dwelling house at Mkondoni in Hindi and or inciting the public to attack him by mob justice.

3. The Plaint enumerated the various ways the said words had injured the plaintiff’s reputation. According to the Plaintiff, and this is in paragraph 12 of the plaint, the said words in the natural and ordinary meaning meant and were intended to mean that: -a.He was morally bankruptb.He is and was a member of the infamous Al- Shabab Terror Groupc.He is a terrorist.d.That he is a cold-blooded killer and violator of human rights.e.He is an enemy to legitimate development of the Kenyan Society.f.He is to be shunned as an epitomization of the detestable face of vice and terror in the country.g.That he is an unpatriotic person who is contributing to the moral decay, economic backwardness of the country; andh.That he is a hardcore criminal.

Evidence 4. This matter proceeded for formal proof hearing on the 13th day of June, 2019. The Plaintiff testified as PW1. He adopted his statement recorded on the 14th day of September, 2015 as his evidence in Chief as well as the list of documents marked as Plaintiff Exhibit No 1 – 50. He further stated that the Defendant has branded and continues to brand him as a terrorist, collaborator and shelter of terrorist and terror and the damage created is incurable. He also stated that the Defendant continues to further put his life in danger by continuously making public statements referring to him as a terrorist. He described at length how he has demonstrated to be of good character and credibility in his region and the different places he has worked as well as in the community.

5. It is his testimony that on September 25, 2014 while at Mkondoni Hindi Magogoni within Lamu County, the Defendant uttered insult and defamatory words which words were malicious and calculated to defame his character and consequently endanger his life with the sole purpose of inciting the public to forcefully evict him from his dwelling house at Mkondoni in Hindi Magogoni. That he was portrayed as a terrorist and a collaborator of the infamous Al- Shabab Terror Group whose retrogressive and terrorist activities have from time to time thwarted and almost rendered the Kenyan Government’s efforts to provide peace and security to the people of Kenya futile hence casting him as an enemy of the people of Kenya and a murderer. The particulars of the defamatory words complained about were translated in English as follows;“…This Muiruri, having brought his people from Nairobi, this is the cause of the problem here…”“…There is no land that will be owned in absence of the owner. This elder is the one keeping militias here…”“…We do not need houses to keep militias…”“…This elder is the war, he will move from that area…”“…Because all the houses he has built are for militia…”“…Your houses, you have harboured militias here…”“…We are agreeable that you are building houses here and harbouring militias…”“…You have now made arrangements against me to bring militias to me…”

6. It was also his testimony that in view of the fact that there had been killings at Mpeketoni and Hindi by the infamous Al- Shabab Terror Group where dozens of innocent civilians were mercilessly butchered and others shot dead in cold blood, the natural and ordinary meaning of the said words by the Defendant had the import and effect of disparaging and causing his reputation to be disparaged both professionally and socially.

7. He further told the court that the said malicious and defamatory words by the Defendant were said at a prime time and place in a public “Baraza” meeting of the people of Mkondoni in Hindi Magogoni. It is his testimony that he had lost business and was evicted from his dwelling house at Mkondoni as a result of the defendant’s utterances. Specifically, the said malicious and defamatory words by the Defendant amounted to having a number of cancellations of business by his longstanding clients, a specific contract worth Kshs 17,500,000/- was terminated.

8. He testified that he had been evicted from his dwelling home in Mkondoni in Hindi Magogoni and that the Defendant has continued to affirm to the members of public of his malicious defamatory remarks against him in the presence of his business clients.

9. PW2 Wallace Maina Michire adopted his written statement dated September 14, 2015 as his evidence in chief. He alleged that he received information from his employees in Mkondoni that on 25th September, the Defendant had uttered insults and defamatory words directed to the Plaintiff in a public meeting “Baraza” that had been called by the Area Chief. The following words were directed to the Plaintiff on the material day;“…This Muiruri, having brought his people from Nairobi, this is the casue of the problem here…”“…There is no land that will be owned in absence of the owner. This elder is the one keeping militias here…”“…We do not need houses to keep militias…”“…This elder is the war, he will move from that area…”“…Because all the houses he has built are for militia…”“…Your houses, you have harboured militias here…”“…We are agreeable that you are building houses here and harbouring militias…”“…You have now made arrangements against me to bring militias to me…”

10. He also testified that the said words by the Defendant were directed to him as well since he had requested the Plaintiff to look after his property in the region. That the defamatory words were malicious and calculated to defame them as well as endanger their lives with the sole purpose of inciting the public to forcefully evict them from their dwelling houses and properties at Mkondoni in Hindi Magogoni. It is also his testimony that the manner in which the words were said as accompanied by the physical actions by the Defendant, they were portrayed as terrorists and collaborators of the infamous Al- Shabab Terror Group.

11. He alleged that in consequence of the defamatory remarks as against himself and the Plaintiff, they have suffered greatly and continue to suffer loss and damage as the Defendant continues to affirm his malicious allegations against the Plaintiff and that he has been affected directly since his house in Hindi was burned and that he lives in fear of losing his life and property.

12. Pw3 Stephen Njenga Ngugi adopted his statement recorded on the 14th day of September, 2015 as his testimony. He further told the court that he received information from his employees in Mkondoni that on September 25, 2014, the Defendant had uttered insults and defamatory words directed to the Plaintiff while in a Public Meeting “baraza” that had been called by the Area Chief. That the Defendant uttered the following words;“…This Muiruri, having brought his people from Nairobi, this is the cause of the problem here…”“…There is no land that will be owned in absence of the owner. This elder is the one keeping militias here…”“…We do not need houses to keep militias…”“…This elder is the war, he will move from that area…”“…Because all the houses he has built are for militia…”“…Your houses, you have harboured militias here…”“…We are agreeable that you are building houses here and harbouring militias…”“…You have now made arrangements against me to bring militias to me…”

13. That the said words by the Defendant also referred to him indirectly since in his absence, he had requested the Plaintiff to look after his property in the region.

Disposition 14. I have carefully considered the pleadings, the testimonies of the respective witnesses and the documentary evidence presented to me by the Plaintiff, noting that the Defendant did not participate in these proceedings.

15. Having analyzed the evidence presented before me, the Issues for determination are as follows;

Whether the words uttered were directed at the Plaintiff, and whether they were defamatory. 16. The elements of defamation be it libel or slander are well settled in such cases as J Kudwoli v Eureka Educational and Teaching Consultants & 2 others HCC 126/90 (Kuloba J), and Wycliffe A. Swanya v Toyota East Africa Limited & Francis Massa Nairobi CA No 70 of 2008, that the key elements of defamation which must be proved are that the matter of which the plaintiff complains is defamatory in character; that the defamatory statement or utterances was published by the defendant, and that publication for the purpose of defamation means that the defamatory statement was communicated to someone other than the person defamed; that it was published maliciously and, in slander, subject to certain exceptions, that the plaintiff has suffered special damages.

17. In Richard Otieno Kwach v The Standard Limited & David Makali Nairobi HCCA 1099 of 2004, the court observed that“words are defamatory if they involve a reflection upon the personal character or official reputation of the plaintiff….”

18. The other thing to note is that the tort of defamation which is the subject of these proceedings is slander. A distinction between it and libel in Halsbury’s Law of England 4th edition Vol 28 is made as follows:“A slander for which an action will lie is defamatory statement if made or conveyed by spoken words, sounds, looks, signs, gestures, or some other non-permanent form, published of and concerning the plaintiff to a person other than the plaintiff, by which the plaintiff has suffered actual damage, often referred to as special damage, which he must allege and prove or which is actionable per se.”

19. There are two chief distinctions in practice between libel and slander, or broadly speaking, between written and spoken defamation.1. Every actionable libel can be dealt with by either civil action or criminal proceedings, whereas no slander, even though actionable, is as such a criminal offence unless it contravenes the law as being, for example, obscene, blasphemous or seditious, or a contempt of court.2. No special damage need be alleged or proved in an action for libel, whereas, unless the defamatory words complained of are actionable per se, no action of slander will lie if the plaintiff does not both allege and prove that he suffered actual damage.”

20. It is not in dispute that the words that were uttered were directed to the Plaintiff. The words uttered according to the Plaintiff are the Kiswahili words set out in his Plaint and the words were uttered in the presence of other people while pointing at him. On whether the words are defamatory, the words uttered by the Defendant were repeated by the Plaintiff’s witnesses associating him to the infamous Al- Shabab Terror Group, labelling him as a terrorist, a cold-blooded killer and a criminal. The Plaintiff described at length how his reputation has been seriously injured; how he has suffered distress and anxiety and lives in fear of losing his life and property. I am satisfied that the Plaintiff has set out a case that meets the threshold of proof on a balance of probability and has established a claim for slander against the Defendant. Judgment is therefore hereby entered for the Plaintiff.

21. Having analyzed the evidence that has been presented before me, particularly, Exhibit No 36 which was in the form of an Audio recording, the Defendant is heard uttering the following words translated to English towards the Plaintiff one Muiruri;“…he has brought militia from Nairobi. During the war, he left town, we do not want to see the militia from Nairobi”“… Muiruri has kept Militia in his houses, the houses he has built are for harboring militias.”

22. The words uttered by the defendant associates the Plaintiff with the killings at Mpeketoni by the infamous Al- Shabab Terror Group. In addition, the words were uttered in the presence of the Chief and other members of the community and therefore published.

23. In determining the award for damages, I am guided by the authority of Mikindadi v Khangan & another (2004) KLR 496, where Ochieng, J was clear 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 had 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 a successful plaintiff is generally in line with what courts have been awarding.”

24. The Plaintiff has made a claim for loss of business as a result of cancellation of business by his clients, one specifically worth Kshs 17,500,000/-. The Plaintiff’s exhibit No 41 is to the effect that the said project was discontinued owing to the allegations of his involvement in harboring terror gangs. It is however not clear how much was paid, how much was due for payment upon termination of the said project, what profit he missed out and at what stage the project was discontinued. In my view, the Plaintiff has not proved that he missed out on other business opportunities based on the defamatory words uttered by the Defendant. For that reason, this court is not entirely convinced that the Plaintiff has made a case for loss of business as a result of the alleged slander.

25. I have carefully read and considered the submissions by the Plaintiff in regard to the issue of quantum of damages. The rationale behind awarding of damages in defamation actions is to restore or give back to the party injured what he lost save in exceptional circumstances where punitive or exemplary damages may be awarded.

26. The Plaintiff has claimed exemplary damages in addition to the general damages. In the English Court of Appeal decision in the case John v MGN Ltd (1996) 2 All ER 35, the court held: -“The successful plaintiff in a defamation action is entitled to recover, the general compensatory damages such sum as will compensate him for the wrong he has suffered. That must compensate him for damages to his reputation, vindicate his name, and taken account of the distress, hurt and humiliation which the defamatory publication caused. Exemplary damages on the other hand had gone beyond compensation and are meant to “punish” the defendant. Aggravated damages will be ordered against a defendant who acts out of improper motive e.g where it is actuated by malice; insistence on a flurry defence of justification or failure to apologize”.

27. The Plaintiff is a businessman and a self-styled entrepreneur in Hospitality Development and the Defendant’s utterances affected his reputation and public standing. I am guided by the authority of Joseph Njogu Kamunge v Charles Muriuki Gachari [2016] eKLR where the High Court at Nyeri upheld an award of Kshs 1,500,000. 00 for slander. All factors considered I find that an all-inclusive sum of Kshs 2,000,000. 00 in general damages for defamation would suffice to compensate the Plaintiff, vindicating him for the embarrassment and public ridicule occasioned to him. I am however not convinced that the Plaintiff has justified the award for exemplary and aggravated damages and to this end, I will not award any amount under this heading. Costs goes to the Plaintiff.

RULING READ, SIGNED AND DELIVERED VIRTUALLY AT MALINDI THIS 15TH DAY OF DECEMBER, 2022. ...................................S.M. GITHINJIJUDGE