[2023] KEHC 23732 (KLR)

Nation Media Group & 2 others v Media Complaints Commission; Ayieko & another (Interested Parties) (Judicial Review E053 of 2022) [2023] KEHC 23732 (KLR) (Judicial Review) (13 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23732 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review E053 of 2022

JM Chigiti, J

October 13, 2023

Between

Nation Media Group

1st Applicant

Managing Editor NTV

2nd Applicant

Brian Obuya

3rd Applicant

and

The Media Complaints Commission

Respondent

and

Victor Odhiambo Ayieko

Interested Party

Charles Mwangi Kang’ethe

Interested Party

Judgment

1. The application before this Court is dated 4th October,2022 and it seeks the following orders;1. That this Honourable Court do issue an order of Certiorari quashing the decision of the Respondent delivered on 19th April 2022 in Complaint No. 1 of 2022 and specifically the following orders:i.That pursuant to Section 38(1) (a) of the Media Council Act 2013, the 2nd Respondent is directed to publish/broadcast an apology and correction in a news bulletin of similar prominence as the impugned broadcast.ii.That pursuant to Section 38(1) (f) of the Media Council Act 2013, the 1st Respondent is directed to pay a fine of Kshs.100,000 for each of the four breaches of the Code of Conduct, which said debt shall be a debt due to the Media Council of Kenya and recoverable as such;iii.The 1st Respondent to pay a fine of Kshs. 100,000. 00 with respect to violations of Regulations2,6, 13 and 21, which said cumulative fine of Kshs. shall be a debt due to the Media Council of Kenya; andiv.That each party bears its own costs.2. That this Honourable Court grants an order of Prohibition as against the Respondent restricting any enforcement of the Respondent’s decision made on 19th of April 2022 in Complaint No. 1 of 2022. 3.That costs of and incidentals to this application be provided for.4. That this Honourable Court grants any other orders that it may deem just and fit.

2. The application is supported by the Statutory Statement dated 19th May,2022 and the Verifying Affidavit of Sekou Owino sworn on even date.

3. The Applicant’s case is that the Respondent made an error of law and fact by finding that although the articles complained of were substantially true, they were inaccurate, unfair, biased and misleading and that the 3rd Applicant failed to observe journalistic accountability.

4. The Respondent is said to have ignored and/or failed to consider the documentary evidence presented before it by way of bank statements produced by both the Applicants and Interested parties clearly evidencing movement of funds, and in particular funds that were intended for Gladys Muthoni, the 1st witness in Complaint No. 1 of 2022.

5. The Applicant also contends that the Respondent misconstrued the evidence espoused by the 1st witness thereby arriving at a wrong conclusion to the effect that there was communication between the interested parties and the said witness who was their estranged client based on only three/four messages touching only on an aspect of the case.

6. The Respondent is also said to have ignored and/or failed to consider the fact that the interested parties did not avail evidence to prove the institution of succession proceedings thereby barring the distribution of funds in question. Also, that it failed to consider the evidence by the 1st witness showing the various complaints lodged before various regulatory bodies.

7. Respondent failed to consider the due diligence taken by the 3rd Applicant and ignored the fact that the 3rd Applicant took reasonable care under the circumstances of the case to ascertain the accuracy of the information prior to publication of the articles complained of, including seeking clarification from the interested parties who failed to clarify the matters arising therein.

8. The Respondent erred in law and in fact by finding that the Applicants failed to accord the interested parties a right and an opportunity of reply contrary to Regulation No. 6 of Media Council Act. It is also contended that the Respondent erred in law and in fact by finding that the Applicants failed to accord the interested parties a right and an opportunity of reply contrary to Regulation No. 6 of Media Council Act yet the same was offered by the 3rd Applicant via a telephone call.

9. It is also the Applicant’s case that the Respondent failed to appreciate that the right of reply is not an absolute right and further that the commission failed to appreciate that the right to report all sides of a story only applies whenever possible.

10. The 1st Applicant it is argued aired the articles complained of in exercise of its right of freedom of media enshrined under Article 34 of the Constitution.

11. The Respondent it is stated failed to appreciate the fact that the right of reply was issued to the law firm of Ayieko and Kang’ethe Company Advocates and that the same right can be exercised by either of the partners as agents of the firm.

12. The Applicants’ case is also that the Respondent erred in law and in fact by finding that the Applicants contravened Regulation No. 21 of the Media Council Act as it ignored and/or failed to appreciate that the use of pictures was essential to ensure accuracy in the reporting of the articles complained further that the Interested Parties had confirmed in their testimonies that the pictures were already in the public domain through their social media accounts. The Interested Parties are said to have failed to produce any evidence establishing the harm occasioned by the publication of their pictures.

13. The Applicants also argue that the Commission erred in law and in fact by finding that the Applicants contravened Regulation No. 13 of the Media Council Act as the telephone conversation was necessary to protect the 3rd Applicant herein from any legal liability arising from the said conversation and also that it was part of due diligence exercised by the 3rd Applicant to verify the statements and claims by Gladys Muthoni.

14. The recording of the said conversation is said to have been quintessential to proving that the duty of verification and duty to accord an opportunity of reply legally vested on the 3rd Applicant had been discharged. The Respondent is said to have failed to acknowledge the exception to obtaining consent as envisioned by the Media Council Act.

15. The Respondent’s decision is said to have contravened Article 34 of the Constitution as read with Section 2,6 13 and 21 of the Media Council Act.

16. In response the Respondent filed a Replying affidavit sworn on 14th October,2022 by Erick Ngaira. In the affidavit Mr. Ngaira who depones that he is employed by the Respondent as the Registrar avers that he adopts and verifies the judgment to be a just and fair outcome of the precedent trial.

17. The story aired on 27th,28th December,2021 and on 11th January,2022 is said to have been titled “Advocates of Pain” an article titled “Two Advocates set to be tried on 17th January,2021 for misappropriation of the client’s funds” which story and article adversely mentioned and painted the interested parties.

18. The Respondent is said to have conducted a robust and fair trial process which culminated in the Applicant herein being found culpable of the said violations.

19. According to Mr. Ngaira Regulation 2 requires Accuracy and Fairness in the practice of journalism. Regulation 6 requires that a party be given an opportunity to reply to inconsistencies while Regulation 13 requires that parties be informed or any recording being undertaken and also of the intention to broadcast the call. The exception to this regulation is said to be in instances where the recording was necessary to protect the journalist in a legal action or any other compelling reason.

20. Regulation 21 is said to address the use of pictures and names by journalists and the importance of avoiding the same in instances where there is a possibility of harming the persons concerned.

21. The 1st Interested Party is said to have averred during the hearing before the Respondent that he had explained to the 3rd Applicant that the matter was a complex one and that a fair conclusion could only be formed after a keen perusal of the case file. Further the 1st Interested Party is said to have proposed to have a formal interview when he reopened for business on 16th January but the said proposal was not accepted and his died not considered for airing of the matter.

22. The 2nd Interested Party is said to although adversely mentioned not been contacted to comment or rebut the said allegations which was in contravention of Regulation 2 and 6.

23. The 3rd Applicant is said to have admitted that that he did not schedule an interview with the interested parties because the impugned news item had strict deadline and nothing the Interested Parties had to say would alter his narrative in any material way.

24. It is the Respondent’s case that the 3rd Applicant did not familiarize himself with the complexity of the matter but sought insight from legal practitioners on the nature of succession matters and that upon receiving the same he was made aware that the interested parties had filed for distribution of proceeds, which application was still pending as well as the importance of said application.

25. The 3rd applicant further averred that though being aware of the pending application and being unfamiliar with the intricacies of legal procedure, he did not mention it in the impugned news item because in his own opinion, it was misleading. The deponent depones that in, the absence of the interested parties’ version of the story, the omission of the pending application and the infraction of recording the call without consent, the applicants went ahead to publish the story along with pictures of the interested parties, causing harm to them and their legal practice in contravention of Regulation 2.

26. The Interested Parties also filed a Replying Affidavit sworn by the 1st Interested Party on behalf of the Interested Parties on 25th January, 2023. According to Mr Odhiambo the 3rd applicant’s story was intentionally skewed to portray them as crocked, heartless, corrupt and immoral advocates who swindled and/or withheld Kshs. 5. 1 million from their client Gladys Muthoni Waruguru.

27. The story is said to have gone viral on the 1st applicant’s social media platforms eliciting all manner or reactions and comments from viewers, online users and bloggers who came across it. The 3rd applicant’s story it is averred was not accurate and lacked fairness in the manner it was reported and thus contravened regulation 2 of the second schedule of the Media Council Act 2013.

28. It is deposed that the Applicants’ never gave the Interested Parties an opportunity to reply to the allegations levelled against them by Gladys Muthoni Waruguru in contravention of regulation 6 of the second schedule of the Media Council Act 2013.

29. Further that in addition to what the Respondent stated in its Replying affidavit during the hearing it also came out that the complainant (Gladys Muthoni) was always kept abreast of the on goings in the matter where she confirmed receiving periodic updates via SMS from the Interested Parties.

30. The Interested Parties’ aver that the story was derogatory to them, and that it exceedingly caused embarrassment and was libelous and defamatory in the natural and ordinary meaning and was obviously meant to ridicule and embarrass them in the eyes of the public.

31. It is also the Interested Parties’ case that they have suffered distress and embarrassment and as a result, their profession and trade has been brought into hatred, ridicule and contempt and further that no amount of damages would indeed adequately compensate their lost dignity and reputation.

32. The Respondent’s decision is said to have been made after the Respondent had properly accessed the facts vis a vis the media regulations act and that therefore the finding arrived at was properly made and within the jurisdiction of the commission.

33. It is also alleged that in any event the main application dated 4th October,2022 is incompetent as it was filed out of time, it is frivolous, an abuse of court process and mala fides.

34. The application was canvassed by way of written submissions. In their submissions dated 10th September,2023 the Applicants submit that the decision by the Respondent will greatly impact on their duty to report on matters of public importance and therefore curtail participation and reporting on matters of general public importance. To support this proposition reference is placed in the decisions by the ECHR Bladet Tromso and Stensaas v. Norway, Case No. 21980/93 and the case of Thorgeirson v. Iceland (1992) 14 E.H.R.R. 843.

35. It is submitted that the Respondent in arriving at its decision based on the three/four text message failed to appreciate that the Interested Parties being the Advocates handling the case on behalf of 1st Applicants’ witness, had a duty to update her on the progress of the matter including when the funds were released and the steps to be taken thereafter in order to obtain the funds.

36. It is the Applicants’ submission that the use of the photographs in this case was essential to ensure accuracy in the reporting, which is acceptable in journalism as was set out by the Court of Appeal, in the case of Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22 and further that although the Supreme Court of England reversed the Court of Appeal decision on liability, it nonetheless upheld the principles set out by the Court of Appeal, and in particular, that photographs could be published alongside a story if the same are peripheral to the story.

37. The Applicants’ reiterate that the decision by the Respondent in regards to their violation of Regulation 21 was made erroneously and to support this argument the case of W I & another v Standard Group Limited & another [2015] eKLR is cited where the court held thus;“Public interest as a defence for the violation of right to privacy is therefore designed to ensure that the individual’s right to privacy does not trump important social or collective considerations.”

38. It is submitted that section 42 of the Media Council Act provides for the right of appeal to the High Court where a party is aggrieved by the decision of the Respondent. The Applicants urge this Honourable Court to consider the precedent set by Court of Appeal in Gitobu Imanyara & 2 others v Attorney General [2016] eKLR, where the said Court stated that the first appellate Court has a duty to re-evaluate and reconsider evidence.

39. It is also submitted that it is trite law that the Constitution as well as the Fair Administrative Action Act empowers a judicial review court to consider the merits of a decision made by an administrative body and to further buttress this argument the Applicant refers to Article 22(3) Article 24, Section 7(2) and 12 of the Fair Administrative Action Act.

40. Further that this Honourable court has the power to re-evaluate the evidence filed before the Respondent and consider the merits of the case both in its capacity as an appellate court as well as a judicial review court. The cases of Njuguna S. Ndung’u v Ethics & Anti-Corruption Commission (EACC) & 3 others [2018] eKLR and Suchan Investment Limited v Ministry of National Heritage & Culture & 3 others [2016] eKLR are cited in this regard.

41. On costs the Applicant submits that costs follow the event and that the Court ought to grant the orders sought herein with costs.

42. The Respondent in its submissions 20th March,2023 submits that pursuant to section 9 of the Fair Administrative Action Act this court has jurisdiction to determine the application before it.

43. Further that Judicial Review is more concerned with the lawfulness of the process rather than the merits and to buttress this argument the case of Republic vs. National Land Commission & Another Ex parte Farmers Choice Limited [2020] eKLR is cited. On what judicial review orders entail the case of Kenya National Examination Council vs. Republic Ex parte Geoffrey Gathenji & 9 Others Nairobi Civil Appeal No.266 of 1996 is refered to.

44. It is submitted that the Respondent’s core purpose is to protect the purpose and principles of the Constitution that relates to media practice which includes Article 33(3) of the Constitution on the right to protect one’s reputation and places obligation on all persons to respect the rights and reputation of others in exercise of the right to freedom of expression.

45. Also, that Article 35(2) of the Constitution states that every person has the right to correction or deletion of untrue or misleading information that affects the person and as such the Respondent was acting well within its mandate in receiving and handling the Complaints that were brought before it.

46. The Respondent also submits that its decision was within the confines of its statutory mandate under Section 38 of the Media Council Act when it ordered the applicants to publish/broadcast an apology and correction to the complainants in a news bulletin of similar prominence as the impugned broadcast and to pay accumulative fine of Ksh.500,000/= which shall be a debt due to the Media Council of Kenya and recovered as such.

47. The Respondent Commission during the hearing is said to have allow legal representation and evidence was tendered by the parties and therefore, the applicants were accorded sufficient grounds and opportunity to be heard through face to face interviews and allowed to make written representations to the Respondent on the issue before the conclusion of the investigations.

48. The decision arrived at by the Respondent Commission it is submitted was based on the powers granted to them under the Media Council Ac and therefore, the Commission being a public body under Section 3 of Fair Administrative Act, 2015 applied the Fair Administrative Act in exercising its administrative authority.

49. The Interested Parties in their submissions dated 28th Marcy,2023 submit that the substantive motion application dated 4th October,2022 is not properly before court as it was filed out of time without the court’s leave.

50. According to the Interested Parties the following is what transpired before the court;“9. On 20th May 2022, this Honourable court granted the applicants leave in HCJRMISC E053 OF 2022 to make a substantive application for Order of Certiorari for purposes of quashing the respondent’s decision delivered on 19th April 2022 in complaint No.1 of 2022 and an Order of Prohibition prohibiting the respondent from enforcing its decision or instituting enforcement proceedings based on the respondent’s decision made on 19th April,2022 in Complaint No.1 of 2022 terms of prayers 2(a) and (b) of the said application.10. The Honourable court further directed that the substantive motion be taken out and served within 21 days and responses be filed within 21 days of service with a mention date set for 12th July 2022. 11. On 12th July 2022, (the 21 days’ leave had expired) and neither the applicants nor their counsel attended court. The court directed that the directions given on 20th May 2022 be maintained and further gave a mention on 5th October 2022. 12. On 4th October 2022, (a day to the court date) the applicants filed the substantive motion (Over 5 months) after leave was granted on 20th May 2022 and without leave of court!13. On 1st November 2022, the 1st and 2nd interested parties filed Notice of Preliminary Objection dated 31st October 2022 objecting to the late filling of the substantive motion.”

51. The Interested Parties submit that the Applicants did not seek for an extension of time before filing their substantive motion. They rely on the cases of Republic v Public Procurement Administrative Review Board & another; Mer Security & Communications System Ltd/Megason Electronics & Control 1978 (JV) & another (Interested Parties); Exparte Magal Security Systems Ltd/Firefox Kenya Limited (JV) [2019] eKLR and Republic v District Education Board Sub- County Health Officer, Nyeri South District Ex Parte Bridge International Academies Limited [2016] eKLR to support this argument where the courts emphasised on the need to obey court orders and what is prescribed in the rules on time to do a particular thing.

52. It is also submitted that the respondent discharged its statutory duties as provided in law and in support of this argument the case of Nation Media Group Limited & 6 others v Attorney General & 9 others [2016] eKLR is cited where the court reiterated the Respondent’s mandate and powers as provided under the law.

53. On the instances when judicial review orders can issue the cases of Pastoli vs Kabale District Local Government council and Other (2008) 2 EA 300 and Republic v Director of Immigration Services &2 others Ex--parte Olamilekan Gbenga Fasuyi & 2 others (2018) eKLR are referred to.

54. It is also submitted that the applicants’ affidavits and statutory statement does not reveal any grounds for illegality, irrationality and procedural impropriety. Similarly, that the applicants do not impugn the Commission’s decision on the premise that the commission acted without jurisdiction or ultra vires.

55. The Interested Parties urge that the applicants are inviting this Court to sit as an appellate court in the guise of an application for judicial review. They rely on the case of Municipal Council of Mombasa v Republic & Umoja Consultants Ltd [2002] eKLR in opposing the same where the court held; “the court should not act as a court of appeal over the decider which would involve going into the merits of the decision itself-such as whether there was or there was not sufficient evidence to support the decision”.

56. In conclusion the Interested Party submits that as was held in the case of Republic v Public Procurement Administrative Review Board & 2 Others Ex Parte Rongo University [2018] eKLR the grant of orders of certiorari, mandamus and prohibition is discretionary.

57. Further that the court is entitled to take into account the nature of the process against which judicial review is sought and satisfy itself that there is reasonable basis to justify the orders sought.

Analysis and Determination 58. I have considered the application before this court the statement and affidavit in support the responses and written submissions by the parties and I find that two issues crystalize for determination as follows;i.Whether the applicants’ substantive motion application dated 4th October 2022 is properly before court and;ii.Whether the applicants have established a case for grant of the judicial review orders sought.

59. On the first issue the Interested Parties challenge the competency of the Applicant’s substantive motion on grounds that the same was filed out of time without leave from the court. This has not been denied by the Applicants and in any case I note that the leave to file the substantive motion was granted by the court on 20th May, 2022 and yet the Applicant’s motion is dated 4th October, 2022.

60. The Civil Procedure Rules under Order 53 Rule 3(1) provides as follows;“(1)When leave has been granted to apply for an order of mandamus, prohibition or certiorari, the application shall be made within twenty-one days by notice of motion to the High Court, and there shall, unless the judge granting leave has otherwise directed, be at least eight clear days between the service of the notice of motion and the day named therein for the hearing.”

61. The Court in the case of Republic v Public Procurement Administrative Review Board & another; Mer Security & Communications System Ltd/Megason Electronics & Control 1978 (JV) & another (Interested Parties); Exparte Magal Security Systems Ltd/Firefox Kenya Limited (JV) [2019] eKLR examined the impact and effect of the above provision and in conclusion held as follows;“57. In conclusion, it is my finding that the provisions discussed above are couched in mandatory terms and must be complied with. Further, Order 50 Rule 6 which permits for extension of time being a subsidiary legislation cannot override the provisions of sections 8 and 9 of the Law Reform Act.[49]58. Article 159 (2) (d) of the constitution of Kenya 2010 enjoins courts to determine cases without undue regard to technicalities. I must however point out that Article 159 of the Constitution is not a panacea for all problems. It is not lost to this court that the provisions of Order 53 Rule 3 (1) of the Civil Procedure Rules, 2010 are couched in Mandatory terms. The applicant cannot seek refuge under Article 159 (2) (d) of the constitution under the present circumstances in view of the mandatory and express provisions cited above.59. Additionally, the ex parte applicant disobeyed an express court order. Article 48 of the Constitution cannot be used as a shield where a party flouts a court order. Above all, Access to Justice cuts both sides. The Respondents and the Interested Parties are equally entitled to access justice. Access to Justice is equally flouted when a Respondent is drugged to court unnecessarily. In the instant case, the ex parte applicant is not only moving the court out of time, but also there existed a similar dispute in court.60. Further, filing multiplicity of suits is an abuse of court process. Failure to disclose the existence of the other suit at the time of obtaining the ex parte order is also an abuse of court process. Had the two suits proceeded for determination there was a danger of the High court rendering conflicting decision on the same Tender process. Perhaps I should add that the reason given for failure to file the motion is totally unconvincing.61. In view of my conclusions herein above, and my finding that section 9 (3) of the Law Reform Act[50] and Order 53 Rule 3(1) of the Civil Procedure Rules, 2010 are couched in mandatory terms, and, also, my finding that Article 159 (2) (d) of the Constitution cannot be of help to the ex parte applicant under the circumstances of this suit, I find and hold that the preliminary objection succeeds.62. Further, the grant of the extension of time is discretionary. The court is entitled to take into account the nature of the process against which the extension is sought and satisfy itself that there is reasonable basis to justify the orders sought. In this regard, it is important to mention that a serious issue arises, namely, that there is an element of abuse of process in this case. The ex parte applicant failed to disclose the existence of the other suit at the time of obtaining the ex parte order. Secondly, the dispute relating to the tender in question was resolved in JR 178 of 2018. By seeking leave to institute fresh proceedings relating to the same Tender, the ex parte applicant seeks to "appeal" against the said decision in which it was a party. The court cannot and should never exercise its discretion in favour of an applicant under such circumstances.

62. This Court is in agreement with the above position that Order 53 Rule 3 (1) of the Civil Procedure Rules, 2010 is couched in mandatory terms and also that the applicants cannot seek refuge under Article 159 (2) (d) of the Constitution under the present circumstances in view of the mandatory and express provisions cited above.

63. It must also be known that the Court’s do not make orders in vain. In our instant case the Applicants disobeyed an express court order directing them to file their substantive motion within 21 days but instead opted to file the same months later. The Applicants have not given this court any valid reason for the undue delay neither is there evidence that they attempted to seek leave from the court before filing the said motion.

64. A party who disobeys a court order cannot purport to hide behind Article 48 of the Constitution as a defence. Access to Justice cuts both sides. The Respondents and the Interested Parties are equally entitled to access justice. Access to Justice is equally flouted when any party is drugged to court unnecessarily.

65. In light of the above I find that the Applicants’ Notice of Motion dated 4th October,2022 is not competently before this court. I see no need to address the second issue for determination as having found the motion to be incompetent there is nothing before this court to determine.

Orders;The Applicants motion dated 4th October,2022 is hereby dismissed with costs to the Respondent and Interested Parties. Orders accordingly.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 13TH DAY OF OCTOBER 2023. ..................................J. CHIGITI (SC)JUDGE