[2022] KEHC 11627 (KLR)

Mutweia v Nzioka (Civil Appeal 10 of 2013) [2022] KEHC 11627 (KLR) (6 June 2022) (Judgment)

Neutral citation: [2022] KEHC 11627 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Appeal 10 of 2013

GV Odunga, J

June 6, 2022

Between

David Nguku Mutweia

Appellant

and

Joel Kitonzi Nzioka

Respondent

(Being an appeal from the judgement and decree of the Honourable M. K. Mwangi, PM in Machakos CMCC 132 of 2002 delivered on 4. 5.2018)

Judgment

1. The Respondent herein sued the Appellant in Machakos CMCC 132 of 2002 for general damages for defamation, costs and interests. According to the plaint, on or about January 24, 2001at Kilembwa Village while the Respondent who was an official of Ava Mbula or Amuuti Clan, together with 14 Committee Members were in the process of officiating a clan matter when the Appellant uttered defamatory words in Kamba language whose English translation was:“I have taken the women as a wife, I have sexual intercourse with her, I am a witch, I use to bewitch her.”

2. According to the Respondent these words were repeated by the Appellant on March 10, 2001 at Mutie Mboso’s rural home in the presence of more than 100 members of Ava Mbula Clan and were published and communicated to the Respondent’s wife, relatives, neighbours, business colleagues and friends as well as his customers. It was pleaded that the same words were repeated on February 2, 2002 at another clan meeting at the Respondent’s home.

3. It was the Respondent’s contention that the said words injured him in his character and reputation as the said words in their normal English meaning meant that the Respondent is a witch, adulterous, envious, not forward looking, not fit to be a member of a decent community and should be shunned by other people.

4. The Respondent lamented that the said words greatly injured him, his standing in the community as a clan elder, a member of school committee, a member of Kwa Kineene Water Project and a staunch Christian and chairman of Mutweia family.

5. I his statement of defence, the Appellant denied the allegations made by the Appellant and specifically denied uttering the alleged words on the dates alleged or any other date. In his view, the suit was actuated by malice, bad faith and evil intentions on the part of the Respondent. He sought that the suit be dismissed with costs.

6. In his evidence the Respondent who testified as PW1, testified that he was a businessman. According to him, in 1992, the Appellant’s brother died in a road traffic accident and the Appellant upon compensation being paid, the Appellant took the same for himself and failed to share the same with the deceased’s widow but instead chased the widow away. As a clan elder, the Respondent sought to know from the Appellant why he had done so and the Appellant instead retorted that he had no money and instead alleged that the Respondent had taken the said widow as his wife and that the Respondent had bewitched him which was not true. It was as a result of these allegations that the suit was instituted.

7. In cross-examination, the Respondent disclosed that the Appellant was his uncle and reiterated that at the time of filing the suit no compensation had been made to the widow of the Appellant’s deceased brother. The Respondent reiterated that he sued the Appellant for labelling him a witch and an adulterous person by saying that the Respondent slept with the deceased’s wife and was involved in witchcraft, yet the Respondent insisted that he was a Christian.

8. According to PW2, Daniel Mutua Mbithi, the case involved David Nguku, the Appellant and his son and that their son died in a road accident and the widow was chased away from home. After being away for long, the widow then approached the clan, of which he was the chair and the family agreed that the widow be settled on the land belonging to her husband. Consequently, a house was constructed for her by the clan.

9. During that time the Appellant was in Germany and upon his return, the Appellant found that the widow had been resettled. The Appellant then alleged that Kaveso, the widow and Kitonyi, the Respondent, were bewitching him and that the two were having sex. Upon being asked to verify the said allegations, the Appellant provided no proof of the sexual relationship but said that he had been told by a witchdoctor, an allegation which the clan found baseless. The Appellant further alleged that the duo had taken his blanket and shredded the same for purposes of witchcraft but had did not explain how the blanket was taken from his house. Upon being asked to take the traditional oath in order to verify the said allegations, the Appellant went away and returned to Germany. The clan then advised the Respondent to seek redress from the court.

10. In cross-examination, PW2 stated that the report of the allegations that the Respondent and the widow were involved in sex and witchcraft was made on July 29, 2000. He denied knowledge that it was the Appellant who was supporting the widow and stated that he had no ill-will against the Appellant. He denied that they were using the widow to fight the Appellant. He denied that he and the Respondent called the Appellant a witch.

11. On his part, the Appellant who testified as DW1 stated that the Respondent was his nephew but denied that he called the Respondent a witch nor did he claim that the Respondent and the said widow, Kaveso, his sister in law, were having sex. He also denied making any report to the clan or to PW2. According to the witness, he did not believe in witchcraft. He admitted that he was the one who pursued the accident claim in Kaveso’s name. According to him, before the accident, PW1 and PW2 were his friends but after that the two became jealous and started making wild allegations. According to him, Kaveso swore an affidavit that the two were pursuing her with the intention of framing the Appellant and he exhibited the said affidavit. It was his case that the suit was fabricated with the intention of fixing him as he never uttered the alleged words.

12. In cross-examination the Appellant denied that he chased the widow from the land as she was not his wife and he had not reclaimed dowry from her.

13. In his judgement, the learned trial magistrate found the affidavit which was exhibited deposed that the deponent was not present when the Appellant uttered the alleged defamatory words and only stated that there was bad blood between the Appellant and the Respondent. According to the court, both PW1 and PW2 testified that the Appellant uttered the words in their presence which words were untrue and disparaged the Respondent in the estimation of right thinking members of society. Having found the Appellant liable for the utterances awarded the Respondent a sum of Kshs 30,000/- as general damages with costs.

14. In this appeal the Appellant contends that the Respondent failed to prove that a cause of action existed; that the suit was statute-barred; that the judgement was against the weight of evidence; that an award was made in respect of a case that was not proved.

15. In this appeal it is submitted that the testimony of the Respondent referred to a totally different words from those pleaded. It was submitted that the Respondent only called one witness who was the chairman of the clan and did not call any other member of the said clan who was present on that day to clarify if the said words were uttered by the Appellant. It was further submitted that the suit offended section 4(2) of the Limitation of Actions Act since the slander was alleged to have been committed on January 24, 2001and the proceedings were instituted on February 15, 2002, more than 12 months after the purported cause of action. In this regard reference was made to Alnashir Visram vs. Standard Limited [2016] eKLR. and Wycliffe A. Swanya vs. Toyota East Africa Ltd & Another [2009] eKLR. and it was submitted that the evidence on record does not support the respondent’s purported claim and that the ingredients of defamation have not been satisfied as no evidence was presented to indicate that the alleged utterances cause the Respondent to be shunned by members of the public.

Determination 16. I have considered the evidence and the submissions made on behalf of the parties herein.

17. However, before determining the above issues it is important to set out the principles guiding the law of defamation. In my view, defamation is rooted in our Constitution since under Article 32(1) of the Constitution every person has the right to freedom of conscience, religion, thought, belief and opinion. This Article makes it clear that the freedom to express one’s opinion is a fundamental freedom enshrined in the Constitution. Article 33(1)(a) thereof provides that 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 but has a constitutional underpinning.

18. Defamation is a tort and is defined as the publication of a statement which, tends to lower a person in the estimation of right thinking members of the society generally or which tend to make him be shunned or avoided. Gatley on Libel and Slander, 8th Edition at page 15 paragraph 31: “The gist of the tort of Libel and slander is the publication of a matter (usually words) conveying a defamatory imputation. A defamatory imputation is one to a man’s discredit, or which tends to lower him in the estimation of others, or to expose him to hatred, contempt or ridicule or to injure his reputation in his office, trade or profession, or to injure his financial credit. The standard of opinion is that of right thinking people generally.”

19. Slander is defamatory matter that is in transitory form. It is only actionable on proof of special damages save for exceptional cases where it imputes a serious crime, disease, or attack on professional ability. See Khasakhala vs. Aurali and Others [1995-98]1 E.A. 112.

20. The defamatory statement is one which has 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 and typical examples are an attack upon the moral character of the plaintiff attributing to him any form of disgraceful conduct such as crime, dishonesty, cruelty and so on. Publication is the communication of the words to at least one other person other than the person defamed. Publication to the plaintiff alone is not enough because defamation is an injury to one’s reputation and reputation is what other people think of a man and not his own opinion of himself. An action for defamation is essentially an action to compensate a person for the harm done to his reputation. Therefore, 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. This must be so because 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.

21. There are two kinds of defamation; slander and libel. Slander is where a person orally or verbally utters defamatory words of and concerning another person whereas libel is where a person writes of and concerning another person defamatory statements or words. Slander and libel are therefore different forms of defamation. Libel consists of a defamatory statement or representation in permanent form and as opposed to slander, libel is punishable per se without proof of damage and the actual sum to be awarded is “at large”. 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.

22. The elements of the tort of defamation are that the words must be defamatory in that they must tend to lower the plaintiff’s reputation in the estimation of right-minded persons, or must tend to cause him to be shunned or avoided. 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 man would not have understood them in the former sense. In this case the Court found that the words uttered were that the Respondent was involved in witchcraft and that the Respondent was involved in a sexual relationship with the Appellant’s sister in law, both allegations of which were untrue. The finding was based on the evidence of PW1 and PW2.

23. Secondly, the words must refer to the plaintiff. In this case, both the Plaintiff and his witness positively averred that the words in question referred to the Respondent. Whereas the Appellant submits that the words in question were different from those leaded, the gist of the complaint was that the Appellant referred to the respondent as a witchcraft practitioner and an adulterous person. It is true that Order 2 rule 7(1) of the Civil Procedure Rules provides that:Where in an action for libel or slander the plaintiff alleges that the words or matters complained of were used in a defamatory sense other than their ordinary meaning, he shall give particulars of the facts and matters on which he relies in support of such sense

24. However as was appreciated in MNM vs. DNMK & 13 Others [2017] eKLR:“A court may validly determine an unpleaded issue where evidence is led by the parties and from the course followed at trial it appears that the unpleaded issue has been left to the court to decide (See Odd Jobs v. Mubea [1970] EA 476).”

25. The Court of Appeal in Magnate Ventures Limited vs. Alliance Media (K) Limited & Others [2015] eKLR had this to say on the same issue:“In Gandy V. Caspar Air Charters Ltd [1956] 23 EACA”, 139 the former Court of Appeal for Eastern Africa expressed itself as follows on the purpose of pleadings:“…the object of pleadings is, of course, to secure that both parties shall know what are the points in issue between them; so that each may have full information of the case he has to meet and prepare his evidence to support his own case or to meet that of his opponent. As a rule relief not founded on the pleadings will not be given.”And in Galaxy Paints Co. Ltd. V. Falcon Guards Ltd. [2000] 2 EA 385, this Court stated that the issues for determination in a suit flowed from the pleadings and that a trial court could only pronounce judgment on the issues arising from the pleadings and that unless pleadings were amended, parties were confined to their pleadings. (See also IEBC & another v. Stephen Mutinda Mule & others, CA No. 219 of 2013).The exception to the general rule that parties are bound by their pleadings, expounded in such cases as Odd Jobs V. Mubia [1970] EA 476 and Vyas Industries Ltd. v. Diocess of Meru[1982] KLR 114) arises where the parties raise and address unpleaded issues and leave them to the Court to decide.”

26. The same court in Christopher Orina Kenyariri T/A Kenyariri & Associates Advocates vs. Salama Beach Hotel Limited & 3 others [2017] eKLR reiterated this view in the following terms:“Those therefore were the crisp and only issues before the learned judge. As has been stated time without number, a court will not determine or base its decision on unpleaded issues. However, if it appears from the cause followed at trial that an unpleaded issue has been left to the court to decide, the trial court may validly determine the unpleaded issue. (See Odd Jobs v. Mubea [1970] 476, and Baber Alibhai Mawji v. Sultan Hashim Lalji & Another, CA No 296 of 2001).”

27. Similarly, the Court pronounced itself in Rosemary B. Koinange (suing as legal representative of the Late Dr. Wilfred Koinange and also in her own personal capacity) & 5 others vs. Isabella Wanjiku Karanja & 2 others [2017] eKLR that:“The law on unpleaded issues and parties being bound by their pleadings, as relates to this question, is amplified by a long line of authorities as correctly illustrated by the appellants. But there is an equally long line of authorities unequivocally asserting the power of a court to determine issues which the parties have not raised in their pleadings. They may allow the court to do so by consent, as stated, for example, in Chalicha FCS Ltd vs. Odhiambo & 9 Others [1987] KLR 182, that:“Cases must be decided on the issues on the record. The court has no power to make an order, unless by consent, which is outside the pleadings. In this instance, the issues raised by the Judge and the order thereon, was a nullity.”The decision of Odd Jobs vs. Mubia, [1970] EA 476, may also apply where it was held that a court may base its decision on an unpleaded issue, if it appears during the trial that the issue was pursued and left for the court to determine.”

28. In this case, the parties were well aware of the allegations facing the Appellant and the Appellant both in his pleadings and in his evidence addressed the same. In those circumstances, I am unable to find that the pleaded words as translated materially differed from the evidence adduced to the extent that it is fatal to the Respondent’s case.

29. To my mind there is no requirement that the words must mention the Plaintiff by name as long as they are directed at the Plaintiff. In this case both witnesses stated that the utterances were directed at the Respondent.

30. Thirdly, the words must be malicious. 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. The failure to inquire is 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 Mangi (supra). In the absence of any explanation as to why the said words, which imputed immorality on the Respondent, were uttered one can only say that they were recklessly uttered and therefore were uttered maliciously.

31. To prove defamation, it is necessary for evidence to be adduced to show what third parties thought about the plaintiff as a result of the said publication. In this case the Appellant was a member of the clan committee and it was alleged that he was involved in witchcraft and illicit sexual adventures. He testified that he was a Christian. One does not require any evidence to show that alleging that a Christian is involved in witchcraft and in illicit sexual relationship with a widow would disparage him and lower his esteem in the minds of right thinking members of the society. The fact that the clan deemed it fit to advice the Respondent to take up the matter in court was evidence of how serious the allegations were taken by the clan.

32. The Appellant also contended that the Respondent’s suit was time barred. However, the defence of limitation was not expressly pleaded in the defence. In STI Services & Trading International N. V. vs. Walford Meadows Limited Nairobi (Milimani) HCCC No. 1450 of 1999 it was held that a defence limitation must be specifically pleaded. This is so in light of Order 2 rule 4(1) of the Civil Procedure Rules which provides 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 opposite party not maintainable;(b)which, if not specifically pleaded, might take the opposite party by surprise; or(c)which raises issues of fact not arising out of the preceding pleading.

33. Unless the circumstances and the fact of the case bring it within the ambit of the Odd Jobs case, a defence of limitation cannot be raised unless expressly pleaded and not at the appellate stage. It was therefore held in Stephen Onyango Achola & Another vs. Edward Sule Hongo & Another [2004] 1 KLR 462 that:“a party who has not specifically pleaded limitation is not entitled to rely on that issue and base his preliminary objection on it; nor is he entitled to rely on that defence during the trial as cases must be decided on the issues pleaded and a party who is entitled to rely on the defence of limitation is perfectly entitled to waive such defence and thus let the suit proceed to trial on its merit.”

34. Before concluding this judgement in cases of defamation, it must always be remembered that award of damages in defamation cases measure something so intrinsic to human dignity as a person’s reputation and honour as these are not marketplace commodities. Unlike businesses, honour is not quoted on Stock Exchange. The true and lasting solace for the person wrongly injured is the vindication by the Court of his or her reputation in the community. The greatest prize is to walk away with head high, knowing that even the traducer has acknowledged the injustice of the slur. There is something conceptually incongruous in attempting to establish a proportionate relationship between vindication of as reputation, on the one hand, and determining as sum of money as compensation, on the other. The damaged reputation is either restored to what it was, or it is not. It cannot be more restored by a higher award, and less restored by a lower one. It is the judicial finding in favour of the integrity of the complainant that vindicates his or her reputation, not the amount of money he or she ends up being able to deposit in the bank. This is not to underrate the part monetary awards play in our society. The threat of damages will continue to be needed as a deterrent as long as the world we live in remains as money oriented as it is. Moreover, it is well established that damage to one’s reputation may not fully be cured by counter-publication or apology; the harmful statement often lingers on in people’s minds. So even if damages do not cure the defamation, they may deter promiscuous slander, and constitutes a real solace for irreparable harm done to one’s reputation. See Albie Sachs, J in Dikoko vs. Mokhatla 2006 (6) SA 235 (CC); 2007 (I) BCLR I (CC).

35. Having considered the evidence on record, I have no reason to fault the findings made by the learned trial magistrate. In the premises the appeal fails for lack of merit and is dismissed but with no order as to costs.

36. It is so ordered.

Judgement read, signed and delivered at Machakos in open Court this 6thday of June, 2022. G.V. ODUNGAJUDGEIn the presence of:Ms Kwamboka for Mr B. N. Nzei for the AppellantCA Susan