[2023] KEHC 21127 (KLR)

Nation Media Group Limited v Ndegwa (Civil Appeal E037 of 2022) [2023] KEHC 21127 (KLR) (3 August 2023) (Judgment)

Neutral citation: [2023] KEHC 21127 (KLR)

Republic of Kenya

In the High Court at Kiambu

Civil Appeal E037 of 2022

PM Mulwa, J

August 3, 2023

Between

Nation Media Group Limited

Appellant

and

Joel Mwai Ndegwa

Respondent

(Being an appeal from the judgment of the Principal Magistrate’s Court at Ruiru in MCCC E276 of 2021 by Hon. J. A. Agonda)

Judgment

1. This appeal is in respect of the quantum of damages awarded to the Respondent in a defamation suit filed by way of an amended plaint dated 21st May 2021. In the plaint the Respondent sued the Appellant seeking general damages for defamation, exemplary damages and unqualified apology through the same newspaper. According to the respondent on 25th February 2021, the appellant caused a publication in the daily newspaper bearing the image of the respondent with a caption:“How firm won 1. 3bn Kemsa tender in a day Shop ‘N’ buy boss denies Ruto, Sakaja links - Back.”The publication implied an association, link, relationship and connection with the company known as Shop ‘N’ Buy. According to the plaint, ‘the plaintiff is a business man of good repute and the publication was meant to mean to the members of general public and friends that the respondent was corrupt, or engages in corruption and corrupt practices, unethical, has no morals sense, lacking in integrity, inhuman, with wanting empathy, cannot be trusted, is dishonest, fraudulent and therefore unsuitably unadvisable to transact business with in addition to meaning that he is of evasive character who lives a life of hypocrisy.’

2. In response the appellant filed its amended statement of defence denying the averments of the amended plaint.

3. The respondent called 3 witnesses in support of his case. The trial court in its judgment found the plaintiff had proved its case on a balance of probability and awarded general damages of Kshs 6,000,000/=, punitive damages of Kshs. 1,000,000/=, costs of the suit and interest.

4. Aggrieved by the trial court’s judgment, the appellant on 14th March 2022 filed the Memorandum of Appeal dated 11th February 2022 citing the following grounds:i.The learned magistrate erred in law and in fact in holding that the Respondent had been defamed by the Appellant yet the evidence adduced did not sufficiently support the Respondent’s claim.ii.The learned magistrate erred in law and in fact in finding that the Respondent had proven that the article complained of in its natural and ordinary and /or by innuendo was defamatory of the Respondent at all.iii.The learned magistrate erred in law and in fact by failing to find that the article complained of was published as a fair comment on matters of public interest and thus not defamatory of the Respondent.iv.The learned magistrate erred in law and in fact in failing to appreciate that the Respondent did not discharge his burden of proving or establishing malice on the part of the Appellant.v.That the learned magistrate erred in law and in fact by basing the award on extraneous considerations and factors.vi.The learned magistrate erred in law and in fact in awarding general damages of Kshs. 6,000,000/= to the Respondent, which amount was inordinately high when taking into account the evidence, the pleadings and all other factors to be considered when assessing damages for defamation.vii.The learned magistrate erred in law and in fact by failing to take into account and fully consider the various authorities submitted by the Appellant before arriving at the sum of Kshs. 6,000,000/= which award was not founded on any outlined legal principle or precedent and was inordinately high.viii.The learned magistrate erred in law and in fact in finding that there was any evidence of conduct on the part of the Appellant justifying the award of punitive damages of Kshs. 1,000,000/= which was not awardable.ix.The learned trial magistrate erred in law and in fact in awarding punitive damages of Kshs. 1,000,000/= which was inordinately high taking into consideration the evidence adduced and all other relevant factors when assessing the same, and which should not have been awarded.

5. The appellant proposed to ask that the appeal be allowed and the suit against the appellant in the trial court be dismissed with costs, and in the alternative this court to vary the award of damages awarded by the trial court.

6. At the hearing, the court directed the appeal to be canvassed by way of written submissions and both parties complied.

Appellant’s submissions 7. In the submissions dated 9th March 2023, counsel contended that in defamation cases the court ought to balance between the individual rights and the fundamental freedoms of the people in respect of access to information as enshrined in the constitution. That the publication by the appellant was not defamatory of the respondent and neither did the words lower the respondent in the estimation of right-thinking members of the society nor was the respondent shunned and/or avoided.

8. It was submitted that the respondent failed to call witnesses to prove the case of defamation, malicious publication, ill-will or spite or indirect motive. The appellant relied on the court of appeal decision in Williamson Diamonds Ltd & Anor vs Brown (1970) EA 1 where the court held that: “the onus is on the Plaintiff to establish malice. In this case, the Respondent had failed to establish that the Appellants had not acted honestly for the purpose of protecting themselves; therefore, the finding of malice could not be sustained.”

9. According to counsel, the respondent failed to prove that indeed his reputation was lowered and that calling friends and relatives as witnesses does not prove that indeed the statement was defamatory. The meaning of right-thinking members of the society denotes persons not familiar with the respondent.

10. According to counsel, the respondent failed to prove how his business was affected by the article. The article was published without malice to the respondent and it was an honest belief that the information contained thereon was true and was published as fair information. The appellant was under a public duty to informthe members of the public on matters of interest namely the awarding of KEMSA tenders for the procurement of medical supplies during the COVID -19 pandemic.

11. Counsel further submitted that the information was not defamatory as the respondent had previously won a tender with the KEMSA worth Kshs. 225 Million while in the Middle East. The impugned publication titled “firm won 1. 3 bn Kemsa tender in a day” under the respondent’s alleged photo it is written “shop n buy director James Cheluley when he appeared before the Public Investments Committee at Parliament Building in Nairobi”

12. It was submitted that the trial court erred in shifting the burden of proof to the appellant to prove the publication was true, and in return erred in finding the appellant liable for defamation.

13. That the trial magistrate failed to give due consideration to already established legal and judicial principles in making an award of both general and exemplary damages, thus arriving at an erroneous award of Kshs. 6,000,000/= as general damages and Kshs. 1,000,000/= as exemplary damages. Further, the trial court failed to take into account the minimum award. The authority cited was Royal Media Services Limited & Anor vs. Jakoyo Midiwo Civil Appeal No. 136 of 2012 where the Court of Appeal substituted the superior court’s aggregate award of Kshs. 7,300,000/= with an award of Kshs. 4,000,000/= as general damages and Kshs. 1,000,000/= as aggravated damages after the superior court’s award to have been on the higher side.

14. In conclusion counsel urged this court to allow the appeal and interfere with the trial court’s judgment.

Respondent’s submissions 15. In the submissions filed on 16th March 2023, it was submitted for the respondent that the appellant failed to discharge its evidential burden of proof before the trial court, and the appellant failed to call any witnesses in support of its case.

16. Counsel submitted that the law on defamation rests on the test that a person’s estimation or reputation be lowered before the right-thinking members of the society. The assertion by the appellants that the stranger ought to hold an opinion against the respondent is unrealistic and strange.

17. The respondent discharged his legal duty before the trial court and proved he was actually defamed by the appellant. The respondent led evidence in support of the claim of malice against the appellant who failed to support its defence of fair comment and consequently the evidence of malice remained uncontroverted. And that the appellant failed to offer an apology to the respondent.

18. Counsel further submitted that the appellant failed to prove that the learned magistrate proceeded on wrong principles in the award of general damages. And the authorities cited by the appellant are not comparable to the issues in dispute.

19. The respondent opined that an award of Kshs. 10,000,000 would be proper compensation while the trial court awarded of Kshs. 6,000,000/= which is not excessive. That the appeal and the submissions by the appellant are aimed at trying the suit afresh.

20. The court was urged to dismiss the appeal and uphold the judgment of the trial court with costs of the appeal being awarded to the respondent.

Analysis and determination 21. I have considered the trial court evidence on record, the submissions of parties both in support of and against the appeal, as well as the authorities. The issues for determination are:i).Whether the respondent proved his case before the trial court, andii).Whether the award of general damages and aggregated damages as awarded was excessively high to warrant the interference by this court. 22. The respondent submitted that after the publication he lost his business, family and suffered humiliation, anguish and emotional and mental stress. And that any reasonable person reading the article got the impression that he was a criminal who squandered funds meant for COVID -19. That his reputation was greatly injured. His photo was printed on the newspaper with the caption “How firm won 1. 3 bn Kemsa tender in a day, shop ‘N’ buy boss denies Ruto, Sakaja links - Back.”

23. The appellant continued to provide a full story in the subsequent pages illustrating how the director of Buy ‘n’ Shop won a tender while in the Middle East.

24. This court is persuaded to agree with the trial court in its finding that in the absence of the appellant’s justification that the publication was true and not actuated by malice was liable for defamation.

25. The trial court in its judgment found that the passage as published on the newspaper complained of was defamatory of the respondent. And having taken into account the gravity of the publication found it was proper to compensate the respondent.

26. In the trial magistrate assessment of damages, she considered the gravity of the KEMSA scandal during the COVID-19 pandemic to have had a lot of interest by the international community. The publication was done on print and social media which had a wide circulation and therefore proceeded to award the respondent Kshs. 6,000,000/= and aggregated damages of Kshs. 1,000,000/=. The appellant opines the same was excessive and not comparable to other decided authorities.

27. It is trite law that this court will not interfere with the judgment of the trial court merely because it thinks that sitting as the trial court it would have awarded a different amount. In interfering with the decision of the trial court this court must be satisfied that the trial magistrate applied the wrong principles of law and arrived at an award that was excessively high or inordinately too low.

28. It was held in the case of BUTT V. KHAN [1981] KLR 349 that; -“An appellate court will not disturb an award of damages unless it is as inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the Judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low”

29. The award of damages is a discretionary remedy which ought to be exercised judiciously. In making its award the trial court elaborated its reasoning and cited comparable authorities.

30. The test for assessing damages for injury of reputation was laid down in the case of John v MGM Ltd (1997) Q.B 586 where the English Court of Appeal said in part at page 607 paragraph F: - “In assessing damages for injury to reputation, the most important factor is the gravity of the libel; the more closely it touches the plaintiff’s personal integrity, professional reputation, honor, courage, loyalty and the core attributes of his personality, the more serious it is likely to be. The extent of publication is also very relevant: a libel published to millions has a greater potential to cause damage than a libel published to a handful of people.”

31. I have considered the authorities which guided the trial magistrate to arrive at her decision on damages and the fluctuation of time. The court is not persuaded that the trial magistrate applied the wrong principles of the law in arriving at an award of general damages.

32. In addition, I have considered the following comparable authorities on the same issue:i).HCCC No. 956 of 2003 - Obure v Tom Alwaka & Others - a local tabloid “The Weekly Citizen” was sued for a sensational and libelous publication on its headline titled: - “Ex-Minister Obure steals man’s wife”. The court awarded Kshs. 17,000,000. 00 to the plaintiff.ii).Charles Kariuki T/A Charles Kariuki & Co. Advocates -H.C.C.C No. 5 of 2000 (Meru) - The court awarded the Plaintiff Kshs. 20,000,000/= for injury of libel.iii).Amritlal Bhagwanji Shah vs Standard Limited & another CC 1073 of 2004 - the plaintiff, a retired Court of Appeal Judge was awarded Kshs 6,000,000 general damages and Kshs 1,000,000 exemplary damages in 2008. iv).John Joseph Kamotho & 3 Others vs Nation Media Group Limited & 2 Others - the plaintiff, a prominent politician and cabinet minister was awarded Kshs 6,000,000 general damages and Kshs 1,000,000 aggravated damages. The award was upheld on appeal.v).Kalya & Company Advocates v Standard Ltd [2002] eKLR the court awarded Kshs. 9,000,000 /= general damages, Kshs. 2,000,000 aggravated damages and Kshs. 300,000 damages in lieu of an apology.

33. The Court of Appeal in the case of CAM vs Royal Media Services Limited Civil Appeal No. 283 of 2005[2013] eKLR stated that: “No case is like the other. In the exercise of discretion to award damages for defamation, the court has wide latitude. The factors for consideration in the exercise of that discretion as enumerated in many decisions including the guidelines in Jones V Pollard (1997) EMLR 233-243 include 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; 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 for example, publication of an apology; matters tending to reduce damages; vindication of the Plaintiff’s reputation past and future.”

34. In the view of the above findings, this court upholds the trial court award of general and aggravated damages.

35. Final Orders:The appeal herein lacks merit and the same is dismissed with costs to the respondent.It is so ordered.

JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBUTHIS 3RD DAY OF AUGUST 2023. .....................................P.M. MULWAJUDGEIn the presence of:Duale – court assistantMs. Wanjiku King’ori - for the appellantMr. Hans Oichoe - for the respondent