[2023] KEHC 26363 (KLR)

Nation Media Group Limited v Njuru alias Joseph Muya (Civil Appeal E132 of 2021) [2023] KEHC 26363 (KLR) (4 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26363 (KLR)

Republic of Kenya

In the High Court at Nakuru

Civil Appeal E132 of 2021

HM Nyaga, J

December 4, 2023

Between

Nation Media Group Limited

Appellant

and

Joseph Muya Njuru Alias Joseph Muya

Respondent

((Being an appeal from the Judgment and Decree of Hon. Y.I.Khathambi, Principal Magistrate, delivered on 5th November, 2021 in Nakuru CMCC No. E279 of 2020)

Judgment

Background 1. The Respondent herein filed suit in the lower court against the Appellant seeking the following prayers;a.General damages for defamation(libel) from the date of such defamation.b.Exemplary and aggravated damages for malicious defamation from the date of such defamation.c.A retraction of the libellous and defamatory publication and an unequivocal public apology in a conspicuous part of the front page of Daily Nation Newspaper.d.Costs of the suit from the date of filing suit.e.Interest on (a) (b) and(c) at court rates.

2. The Respondent's contention before the lower court was that, on 13th October,2020, the Appellant caused to be printed, published and broadcasted on page 1 of its Daily Nation Newspaper a report by Nation Team comprising Onyango K’onyango, Stanley Kimuge and Eric Matara head lined “Tycoons behind Moi’s Long hold on power” which was followed by the following statements;“For more than two decades, the nation was under the control of a chosen few from the Rift Valley. Guided by the self-styled “professor of politics”, the inner circle of former president Daniel Arap Moi gained political and economic power. A ruthless dictator who ruled with an iron fist,Moi planted his men everywhere and gave them carte blanche to neutralize their enemies. To win over the masses and ensure stability, the regime manipulated elections and installed friendly leaders. The dirty work was done by senior civil servants, top police and military commanders, shrewd lawyers, wily businessmen et al. A majority still call the shots in the vote rich region.”“In Nakuru, businessman Sam Buru alias Kiongozi, Maina Waweru and Joseph Muya are the Cosmopolitan county’s power men.Mr. Muya has operations in the travel and hospitality industry, where he runs the Lake Nakuru Lodge and Summit Hotel and the Naivasha Crescent Camp”

3. According to the Respondent, the words, in their natural and ordinary meaning, were understood to mean:a.That the Plaintiff was under the patronage of a ruthless dictatorial regime.b.That the plaintiff was involved in propping up a ruthless dictatorial regime as a wily businessman.c.That the plaintiff was planted by the iron fisted ruthless regime leader to do the dirty work for the ruthless regime.d.That the plaintiff was given carte blanche to neutralize his enemies by a ruthless regime.e.That the plaintiff has gained political and economic power as a result of being in the inner circle of a ruthless regime.f.That the plaintiff has controlled the country together with a chosen few from the Rift Valley Region without the mandate of the residents of the Rift Valley Region.g.That the plaintiff was involved in manipulation of elections ensuring that leaders friendly to a ruthless regime are elected.h.That the plaintiff has been calling the shots in the Rift Valley Region and facilitate a ruthless regime to hold on to power with an iron fist for more than two decades.i.That the plaintiff is a tycoon behind regimes long hold on power.j.That the plaintiff is a power man within the cosmopolitan Nakuru County without any mandate from the local citizenry in Nakuru County.k.That the plaintiff has been involved in the subversion of the peoples’ collective will and aspirations.l.That the plaintiff is a powerful, dangerous, ruthless and heartless person.m.That the plaintiff is a person of low moral standing who would eliminate his enemies to gain political and economic advantage.n.That the plaintiff is a person who is inclined to election fraud and malpractice.o.That the plaintiff is a person who takes advantage of the public.p.That the plaintiff is a person of bad character who does not respect the public.q.That the plaintiff is a person who is generally of a wanting character and is contemptible.r.That the plaintiff is mean and corrupt.s.That the plaintiff economic prowess is built on the blood, sweat and tears of the Citizens of Kenya.t.That the plaintiff is a conniving schemer who would go to any lengths to achieve political and economic advantage.u.That the plaintiff has been involved in charting the political future of the Country without seeking an elective mandate from the citizens of Kenya.v.The Plaintiff is responsible for political violence through manipulation of elections.

4. It was further averred by the Respondent that the words published were inaccurate, reckless and devoid of any factual basis or content and were calculated to injure his reputation; moreover, the defendant did not attempt to verify the truth thereof but rather intended to derive financial capital, advantage over other players in the print and broad cast media sector and or benefit from such sensational but blatantly untrue publications and broadcast.

5. The Appellant denied the Respondent’s claim and on a without prejudice basis averred that the alleged publication in so far as it related to the plaintiff/Respondent was of public concern and public interest and therefore the said words were published on a qualified occasion; that the said words were published bona fide and without malice towards the Plaintiff under a sense of public duty and in the honest belief they were true; that the words in their natural and ordinary meaning consisted of statement of fact, true in substance and in fact; and that the said words did not bear and were not understood to bear any defamatory meaning.

6. The Learned Trial Magistrate upon hearing the matter found for the Respondent and awarded him Kshs. 5,000,000/= as general damages plus a further sum of Kshs. 1,000,000/= as aggravated damages together with costs and interest.

7. Being dissatisfied with the lower court's decision, the Appellant filed a memorandum of appeal dated 25th November 2021 which was amended on 7th March,2023. The amended memorandum of appeal dated 6th March 2023 raises the following grounds:1. That the Learned Magistrate erred in law and fact and misdirected herself in delivering judgement in the Plaintiff’s favour when the plaintiff had not proved his case to the required standards.1A.That the Learned Magistrate erred in Law and in fact by disregarding Article 2(5) of the Constitution of Kenya, 2010. 1B.That the Learned Magistrate erred in law and in fact by failing to strictly comply with Section 3(1)(c ) of the Judicature Act Cap 8,2018[1989].1C.That the Learned Magistrate erred in Law and in fact by disparaging the universally accepted and time tested standards regarding the Laws of Defamation.1D.That the Learned Magistrate erred in law and in fact by failing to recognise Article 33 of the Constitution.1E.That the Learned Magistrate erred in Law and in fact by failing to recognise Article 34 of the Constitution of Kenya,20101F.That the Learned Magistrate erred in Law and in fact by failing to recognise the delicate balance between citizen’s right to privacy, protection from attacks on their honour and reputation and the right to transmit and receive information.1G.That the Learned Magistrate erred in Law and in fact by overlooking Article 50 of the Constitution of Kenya,2010, as a peremptory norm from which there can be no derogation since under Article 25(c ) of the Constitution there is no limitation to the right to fair trial.2. That the Learned Magistrate erred in Law and misdirected herself in finding that the article was defamatory of the plaintiff.3. That the Learned Magistrate erred in law in her appreciation of Law of Defamation, in particular libel, or in not appreciating the law, to the extent of: -a.The ingredients of the Tort of Defamation.b.The essence of the publicationc.The test to be applied on publication, the right thinking members of the society.d.The evidence receivable to establish libele.The ingredients of innuendo.4. The Learned Magistrate erred in Law and in fact in failing to appreciate that the Plaintiff is obliged to prove his case to the required standard whether or not the Defence adduces evidence.4A.The Learned Magistrate erred in law and in fact by ignoring that which was so obvious, the Plaintiff’s failure to prove his “good character”4B.That the Learned Magistrate erred in Law and in fact by taking Judicial Notice of who the Plaintiff was, thus failing to adjudicate on the matter before her and abdicating her duties by substituting the facts of the matter with her opinion.4C.That the Learned Magistrate erred in Law and in fact by placing too high a standard on the part of the Defendant whose duty did not extend beyond the usual standard in a civil case.4D.That the Learned Magistrate erred in Law and in fact by failing to recognise that the test whether a statement is defamatory is an objective one and is not dependent on the intention of the publisher but is dependent on what a reasonable person reading the statement would perceive it.4E.That the Learned Magistrate erred in Law and in fact by failing to appreciate that in the Laws of Defamation, it is not for the Plaintiff to assess whether spoken or written words are defamatory but for the reasonable members of the public.4F.That the Learned Magistrate erred in law and in fact by failing to recognise that the Plaintiff needed to call witnesses to prove that the article was not only published but also read and changed their perception of the Plaintiff.4G.That the Learned Magistrate erred in Law and in fact by failing to recognise that in defamation cases, the most important ingredient is the effect of the spoken or written words in the mind of third parties about the Plaintiff and not how himself feels the words portray about him. It is therefore, not enough to say that the words spoken or written are defamatory but the perception of reasonable members of the public.5. That the Learned Magistrate erred in Law in awarding the Plaintiff the aggregate sum of Ksh. 6,000,000/= General damages and aggravated damages, which award is without basis and in excessive.5A.That the Learned Magistrate erred in Law and in fact by failing to recognise the fact that while the court should abide by the doctrine of precedent, it is nevertheless, in consideration of significant weight, free in both civil and criminal cases to depart from previous decisions, when it is right to do so.6. That the decision was arrived at on consideration, to the extent that it was done, on the wrong principles of the Laws of Defamation.6A. That the General case Law of Defamation presents contradictions regarding proof of Defamation in particular the essence of publication and principles to be applied.

8. In the premises, the Appellant prays for Orders:a.By the profound principles of the Laws of Defamation and the International standards when giving decisions on Defamation cases, and the serious ramifications for the arbitral process, and on account of the weight and gravity of the above grounds raised, that this Honourable Court be pleased to allow the Appeal by reversing and setting aside the Judgement entered on the 5th November, 2021. b.That the Respondent be condemned to pay costs of the Appeal.

9. The appeal was canvassed by way of written submissions, pursuant to the directions issued herein on 27th March, 2023. The Counsel for the respective parties subsequently highlighted the same on 26th July, 2023.

Appellant’s Submissions 10. With regard to whether the trial court erred in disregarding Articles 2(5), 33, 34 and 50 of the Constitution, the Appellant submitted that the Law of Defamation is grave from a legal and societal point of view and especially considering the effect of the prevalent hefty awards against the media and the resultant threat to media sustainability in the light of its duty to educate and inform the public.

11. The appellant argued that had the trial court paid attention to Articles 33 and 34 of the Constitution, it would have concluded that the publication, if proved, was rightfully made in the course of the Defendant’s exercise of its rights.

12. The Appellant submitted that in defamation cases, the trial court must balance between the individual rights and fundamental freedoms of the people guaranteed by the constitution on the one hand, to a free media and access to information, and on the other hand, the freedom of expression and the individual’s right to access to information.

13. In buttressing the above proposition, reliance was placed on the case of J Kudwoli & another vs Eureka Educational and Training Consultants & 2 others [1993] eKLR.

14. The Appellant further submitted that the right to fair hearing is a non-derogable right provided under Article 25(c) of the Constitution. It argued that it was not given a fair trial for reasons that:-i.The magistrate applied to the plaintiff’s case a standard of proof that is far below that subscribed by law.ii.The trial magistrate exhibited prejudice against the appellant and in the process failed to competently adjudicate on the matter before her.iii.The trial magistrate abdicated her duties by substituting the facts of the matter with her opinion.iv.The trial magistrate assigned incorrect and exaggerated imputations to the words of the publication.v.The trial magistrate unfairly discredited the profound principles of the laws of defamation and the international standards.

15. With respect to whether the trial court erred by failing to comply with Section 3(1) (c) of the Judicature Act Cap 8, 2018[1989], the appellant submitted in the affirmative.

16. The appellant argued that the law of defamation, directly and indirectly, affects substantial rights of the parties and transcends the circumstances of the case in issue, hence it is absolutely necessary to strictly comply with the relevant Constitutional, statutory provisions and the universally accepted and time tested standards regarding the Laws of Defamation.

17. On whether the trial court erred by disparaging the universally accepted and time tested standards regarding the Laws of Defamation, the appellant referred this court on the cases of J Kudwoli & another vs Eureka Educational and Training Consultants & 2 others(Supra) & Peter Maina Ndirangu t/a Express Service Agency vs Standard Group Limited [2016] eKLR on the definition of Defamation.

18. Regarding the ingredients of tort of defamation, the appellant referred this court to the decision in J. Kudwoli vs Eureka Educational and Training Consultants & 2 Others (supra) that extensively discussed the same and submitted that the trial court failed to strictly subject the Plaintiff’s case to strict proof of these ingredients.

19. On whether the statement in question was defamatory, the Appellant argued that words must be defamatory in that they must tend to lower the Plaintiff’s reputation in the estimation of right minded persons in the society or they must tend the plaintiff to be shunned or avoided by other persons.

20. The Appellant contended that the Plaintiff in the trial court needed to call witnesses to prove that the article was not only published but also read and negatively changed their perception of him.

21. The Appellant further averred that the trial court failed to recognise that the test whether a statement is defamatory is an objective one and is dependent on what a reasonable person reading the statement would perceive it.

22. The Appellant also submitted that the trial magistrate not only totally believed the evidence of the Respondent despite lack of evidence, but also took judicial notice of who the Respondent was, thus failed to properly adjudicate on the matter before her and abdicated her duties by substituting the facts of the matter with her opinion.

23. The appellant contended that had the trial Magistrate fairly considered the principles of the Law of Defamation, Article 2(5) of the Constitution of Kenya, 2010 and Section 3(1) (c) of the Judicature Act, she would have arrived at a different conclusion.

24. To bolster its submissions, the Appellant relied on J. Kudwoli vs Eureka Educational and Training Consultants & 2 Others (supra) that discussed the test of reasonableness. Also cited was George Mukuru Muchai vs Standard Limited [2003] eKLR for the proposition that 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, and the Halsbury’s Laws of England 4th Edition Volume 28 at page 23 on the test on whether or not a statement is defamatory.

25. On whether the statement referred to the Respondent, the Appellant submitted that though the respondent was mentioned, the article was not specifically about him but generally about rich influential businessmen including those based in Nakuru County such as Sam Mburu, Maina Waweru and others, the plaintiff only being one of them.

26. Regarding whether the statement was intentionally, recklessly or negligently published, the Appellant submitted that no evidence was adduced by the Respondent to indicate any ill will on its part.

27. The Appellant contended that its intention was simply to provide the information which the people required to make responsible and informed decisions on matters that affect the country and there was no tortious liability for fair information.

28. In addition, the appellant contended that article complained of was basically an informative historical piece in which the respondent is, together with other businessmen, described merely as “the cosmopolitan county’s power men”. That the trial court failed to realize that this is not necessarily a negative attribute since every country has rich influential business individuals.

29. The appellant also submitted that the trial court failed to appreciate that if there was any slip or error on its part, it is not to the extent that the same can be termed as “reckless and negligent”.

30. In regards to whether the statement was published by the Appellant, the Appellant submitted that no evidence was adduced to demonstrate that there was publication of the alleged defamatory words.

31. On whether the statement was published without lawful justification, the Appellant submitted that the respondent failed to prove that the statement was malicious. The Appellant contended that what was stated was a true account of the Respondent’s influential business status in the County.

32. The Appellant also argued that considering that a newspaper such as the Appellant’s herein has a duty to educate and inform the public on matters concerning their country, the trial court misapprehended and misinterpreted its defence of justification when it found that there was no proof that the comment was a matter of public interest, a fact evident without requiring elaboration.

33. The Appellant further argued that it is not right to consider the very matter of which the Plaintiff complains only but it is necessary to take into account the context of the matter as a whole; nothing should be considered in isolation of the whole, and where they are present ,the bane and antidote must be taken together.

34. On whether the trial court erred in failing to appreciate that the Respondent is obliged to prove his case to the required standard, the Appellant submitted that it is trite law that the burden of proof is always on the plaintiff to prove his averment and his case.

35. To support this proposition, reliance was placed on Section 109 of the Evidence Act and the cases of Peter Kanithi Kimunya vs Aden Guyo Haro [2014] eKLR cited in the case of Kirugi & Another vs Kabiya & 3 Others [1987] KLR 347 & J. Kudwoli vs. Eureka Educational and Training Consultants & 2 Others (supra).

36. The appellant then submitted that there was no proof that the Respondent was an hotelier, a member of local and international hotel association , owner of 3 hotels and that he suffered losses at the hotels.

37. The Appellant submitted that the Respondent conceded in cross examination that at the time of the alleged publication, the country was in the throes of the Covid 19 pandemic and international flights and tourism were adversely affected by the pandemic in the whole world. That the trial court ought to have taken judicial notice of this fact in determining whether the Respondent’s alleged financial decline was due to Covid 19 or the publication.

38. The Appellant submitted that the trial court erred by stating that that the statement having been printed in a newspaper of wide circulation, then it follows that the publication reached a large number of people yet there was no evidence to substantiate the same.

39. The Appellant further argued that the trial court’s finding that the Respondent’s case was uncontroverted was faulty considering that the defendant filed defence raised substantial points of law and that the plaintiff was subjected to cross- examination which brought out serious weaknesses in his case.

40. On whether the trial court erred by awarding the sum of Ksh. 6,000,000/= general damages and aggravated damages, the Appellant submitted that even assuming the respondent proved his case, which it denied, the trial court erred in assessing damages as she disregarded that the respondent did not present evidence of actual damage to his reputation and character; that the respondent did not present any evidence in support of losses to his business and the purported ownership; that it was in public domain that the incidence of Covid 19 had wreaked havoc to the tourism ,hospitality and international travel industries, not just in Kenya but globally; that the Respondent was only fleetingly mentioned at the tail –end of the subject article, on page 11 of the newspaper; and that excessive awards such as the one made to the plaintiff results in the undesirable stifling of media reporting on matters of public interest.

41. In support of the above submissions, this court was referred to Nation Newspapers Ltd vs Gilbert Gibendi [2002] eKLR which held that one had to prove total malice and actual damage to his reputation and character in order for the court to assess an appropriate award.

42. Regarding general damages, the Appellant submitted that the trial court’s award in general damages was excessive and based on wrong principles.

43. The Appellant also submitted that there was nothing in its conduct to aggravate defamation considering there was no malice and repeated publication. In support of this proposition reliance was placed on the case of Royal Media Services Limited t/a Citizen TV & another vs Alfred Amayio Maiko [2021] eKLR in which the court cited Halsbury’s Laws of England, 4th edition, 1979 (Sweet & Maxwell) at paragraph 237 at page 118 where the authors stated that the manner and extent of publication, the defendant’s actual malice, the defendant’s subsequent conduct, the failure to apologize, the failure to prove the plea of justification and the conduct of the defendant’s case may increase or aggravate the damages.

44. The Appellant submitted that the Respondent did not present any evidence of actual damage to his reputation or character , did not present any evidence in support of losses to his business not to mention in proof of the purported ownership and as such an award of 1,000,000/= in aggravated damages was unmerited.

45. With respect to whether there is a state of uncertainty in the Law of Defamation, the Appellant posited that in recognition of the fact that while the court should abide by the Doctrine of Precedent, it is nevertheless, in consideration of significant weight, free in both Civil and Criminal cases to depart from previous decisions, when it is right to do so.

46. The Appellant then argued that general case law presents contradictions regarding proof of defamation in particular the essence of Publication and principles to be applied. To support this position, this court was referred to the case of J. Kudwoli vs Eureka Educational and Training Consultants & 2 Others (supra) at page 25,31,32,33 & 38.

47. The Appellant prayed that the appeal be allowed with costs to it.

Respondent’s Submissions 48. The Respondent submitted that he proved his case within the four elements of defamation and that the court noted his evidence on defamation remained uncontroverted by the Appellant.

49. In regards to whether the publication that was made by the defendant was defamatory, the respondent submitted that he set out the publication in detail in his pleadings and adduced oral evidence to demonstrate that the same was defamatory.

50. With respect to whether the article was defamatory, the Respondent submitted that in addition to his pleadings and oral testimony, he submitted extensively and relied on the decisions in Miguna Miguna vs Standard Group Limited & 4 others [2017] eKLR & Mary Kemunto Mariera vs Standard Group Limited [2019] eKLR on proof of defamation.

51. The respondent further argued that it is evident from court’s finding that the article was defamatory and that the court applied the rule of the reasonable man and found that any person who read the newspaper which had wide circulation would understand the words of the said article to mean that during president Moi’s Era, the Respondent used any means available to neutralize the president’s enemies and that he was successful as a consequence of the said action in favour of the former president.

52. The Respondent also contended that his evidence was uncontroverted and considering the Appellant did not challenge his reputation in any way, the evidence of an independent witness was unnecessary. In support of this proposition , reliance was placed on the case of Adan Keynan Wehliye vs Standard Limited & another [2020] eKLR in which the court made reference to the Court of Appeal decision in Miguna Miguna vs. The Standard Group Limited & Another (civil Appeal No. 164/2016 where it was held that;“Where the credentials of the plaintiff are not challenged, he/she need not call a character witness”

53. The respondent further argued that the Appellant in its defence admitted that he was a business man in the travel and hospitality sector as well as ownership of the three establishments namely- Lake Nakuru Lodge, Summit Hotel and Crescent Camp.

54. The Respondent urged this court to find that he had established that firstly, a defamatory statement was published by the Appellant on 13th October, 2020 and secondly, the said article referred to him.

55. On whether the publication was false and malicious, the Respondent submitted in the affirmative. He argued that he established the same through his pleadings, evidence and submissions and that the lower court’s decision with respect to this issue was sound.

56. With regard to whether the defence of qualified privilege was available to the defendant, the Respondent made reference to its submissions before the trial court and submitted that from the lower court judgement it was evident that the defence of qualified privilege and fair comment ought to have been backed by evidence but the Appellant closed its case without calling a witness.

57. On whether the plaintiff’s failure to call an independent witness to verify his character was fatal, the Respondent reiterated that evidence of an independent witness was unnecessary as the appellant did not challenge his reputation. In support of this position, reliance was further placed on the cases of Mary Kemunto Mariera vs Standard Group Limited [2019] eKLR & Daniel N. Ngunia vs K.G.G.C.U. Limited [2000]eKLR.

58. In regards to whether the Appellant’s failure to call a witness rendered his case uncontroverted, the Respondent concurred with the lower court’s findings on the same and urged this court to also find in the affirmative.

59. With respect to whether the award of damages was excessive and without basis, the Respondent submitted that the lower court award was in no way unmerited or excessive and was within the margin of what the courts have awarded in the past in regards to defamation.

60. The Respondent referred this court to the cases of Agnes Zani vs Standard Group Limited [2019] eKLR ;J.P. Machira t/a Machira & Company Advocates vs Wachira Waruru & another [2020] eKLR & Nelson Havi vs Headlink Publishers Limited [2018] eKLR where the court awarded the appellant sums of Shs.5,000,000 in respect of general damages and Shs.1,000,000 for aggravated damages.

Analysis & Determination 61. This being a first appeal, I am mindful that it is the duty of the Court to review the evidence adduced before the lower court with a view of satisfying itself that the decision was well-founded, while giving allowance for the fact that I did not have the advantage of seeing or hearing the witnesses. In Selle & Another vs Associated Motor Boat Co. Ltd & Others [1968] EA 123, this principle was expressed thus:“...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..."

62. The Respondent testified as PW1 before the lower court. His evidence was that he was a hotelier and he had sued the Appellant for defamation as it defamed him, his friends and fellow businessmen in its newspaper of 13th October, 2020. He said he bought the newspaper and saw the writer of the column was Konyango Stanley, Sternly Kimunge and Eric Matara. He said the defamatory information was on 1st page of the newspaper and full story was on page 10-11. He stated that the column angered him since it affected his business. He added that he neither knew the former president personally nor had a close relationship with him. He said he never conducted dirty business for the former president and attributed success in his business to his hard work. He contended that his name was tarnished both locally and internationally.

63. In support of his case, he produced the following exhibits; Demand letter dated 15. 10. 2019

Copy of G4S Shipment Way Bill

Copy of receipt on payment of shipment fees

Copy of email communication to defendant

Copy of newspaper dated 13. 10. 2020

64. In cross examination, he stated that his name was tarnished. He said he was an hotelier, a member of local and international hotel associations and an owner of 3 hotels. He conceded that he had not adduced any evidence to prove that he owned those hotels. It was his evidence that he suffered losses at the hotels. He confirmed that in March 2020 international flights were frozen and tourism was affected due to Covid 19 and that the said report was printed during this period.

65. The Appellant on its part did not tender any evidence.

66. Having heard the case, the Learned Trial Magistrate held that the Plaintiff/Respondent had proved his case on a balance of probabilities in that:i.His case was uncontroverted and the said wording of the publication was defamatory as it was printed in a newspaper of wide circulation and therefore the publication reached a large number of people.ii.The failure by the defendant to present evidence to prove that the statement was true and that the maker of the same had made efforts to conduct investigations prior to publication in order to verify the truthfulness of his statement left the evidence of the plaintiff uncontroverted and therefore the plaintiff proved that the defendant’s article was actuated by malice on the part of the authors.iii.The defence did not present evidence in support of qualified privilege and consequently, there was no proof that the comment was on a matter of public interest and that the same was based on verified facts and as such the defence of fair comment could not stand.

67. I have given due consideration to the lower court record, the Judgment by the trial magistrate, the grounds of appeal and the submissions by the parties. I must commend the parties for their input in making the submissions.

68. I am of the considered view that the core issues that present themselves for my determination are:i.Whether the trial court erred in finding that Respondent proved his case to the required standard.ii.Whether the Learned Trial Magistrate committed an error of principle in making the awards she made.

69. In Winfield on Tort, 8th Edition at page 254, Defamation is defined as:“...the publication of a statement which tends to lower a person in the estimation of right-thinking members of society generally or which tends to make them shun or avoid that person..."

70. The rule of evidence is clear that “He who alleges must prove”. The maxim has been grounded in law under Section 107 of the Law of Evidence. The same was enunciated by Justice Majanja in Evans Otieno Nyakwana vs Cleophas Bwana Ongaro [2015]eKLR when he said that:“…As a general proposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of section 107 (1) of the Evidence Act (Chapter 80 of the Law of Kenya), which provides: “107. (1)whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist…”

71. The Respondent was therefore obliged to prove his case.

72. The Court of Appeal in the case of Wycliffe A. Swanya vs Toyota East Africa Ltd & Another civil Appeal 70 of 2008 [2009] eKLR stated:“For the purpose of deciding a case of defamation, the Court is called upon to consider the essentials of the tort generally and to see whether these essentials have been established or proved. 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 defamatory statement or utterance 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 damage.”

73. Similarly, in J. Kudwoli & Another vs Eureka Educational Training Consultants & 2 Others (supra), Kuloba, J. concluded thus:“To summarize the legal position in Kenya, in so far as it relates to the instant cases before me, ... I have found the law of defamation in this country to be that for a defendant to be tortiously liable in a suit for defamation the plaintiff must prove on a balance of probability that the matter complained of:(a)is defamatory(b)refers to him(c)was intentionally, recklessly or negligently published of and concerning him(d)was so published by the defendant, and(e)was published without lawful justification on an unprivileged occasion."

74. In John Ward vs Standard Limited [2006] eKLR Osiemo J. stated-“A statement is said to be defamatory when it has a tendency to bring a person to hatred, ridicule, or contempt or which causes him to be shunned or avoided or has a tendency to injure him in his office, profession or calling. The ingredients of defamation are: -(i)The statement must be defamatory.(ii)The statement must refer to the plaintiff.(iii)The statement must be published by the defendant.(iv)The statement must be false.”

75. Having set out the principles of the law on defamation, I will now proceed to apply them to the facts of this case.

76. As a starting point, it is imperative to note that the Constitution of Kenya provides for rights and freedoms which inevitably have a bearing on the interpretation of the law of defamation. Those constitutional provisions have been well expounded in many judicial decisions. For instance in the case of Phineas Nyagah vs Gitobu Imanyara [2013] eKLR Odunga, J(as he then was). had the following to say on the issue;15. ... Under Article 32(1) of the Constitution, it 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.

77. Similarly, Aburili, J. in Gideon Mose Onchwati vs Kenya Oil Company Ltd & Another [2017] eKLR stated that: -“...the court in deciding defamation cases must balance the provisions of Articles 33, 34 and 35 of the Constitution, dealing with the freedoms of expression and media freedom and the individual's right to access information on one hand and Article 28 in respect of the inherent dignity must be respected and protected...”

78. I align myself with the words of the learned Judges.

79. From the reading of Articles 33, 34 and 35 alongside Article 28 of the Constitution, it is clear that the freedom of expression and of the media as guaranteed is not absolute. Those rights are subject to limitations such as those set out in Article 33(3) which provides for respect of the rights and reputation of others .

80. The publication the Respondent claimed to be defamatory was the article which appeared in the Daily Nation Newspaper of 13th October, 2020. There is really no dispute that the Appellant printed, published and broadcasted in the article, which is alleged to be defamatory against the Respondent herein and two others.

81. The article in question in question, in its plain reading was to the effect that Sam Mburu alias Kiongozi, Maina Waweru and Joseph Muya (the respondent herein) were the inner circle of the former President Daniel Arap Moi and that they gained political and economic power and were given carte blanche to neutralize their enemies. The article further states that the Moi’s regime, in order to win over the masses and ensure stability, manipulated elections and installed friendly leaders, and that its dirty work was done by senior civil servants, top police, military commanders, shrewd lawyers and them and they still called the shots in the vote rich region.

82. The Respondent contended that those words as published were inaccurate, reckless and were calculated to injure his reputation. According to the Respondent, he was a self-made businessman who had painstakingly built his business through sheer hard work and sacrifice.

83. In Gatlely on Libel and Slander 6th Edition at page 6 the learned author stated that –“A defamatory statement must be false and it must also be defamatory to the plaintiff, that it is to say, the statement must contain, whether expressly or by implication, a statement of fact or expression of opinion which would lower the plaintiff in the estimation of a reasonable reader who had knowledge of such other facts not contained in the statement, as the reader must reasonably be expected to possess.”

84. From the evidence on record, the publication clearly referred to the Respondent by name and was published in a newspaper with nationwide circulation. The newspaper in question was produced as an exhibit before the Lower Court.

85. So did the said publication lower the reputation of the Respondent in the estimation of right-thinking members of society?

86. In a case of defamation or libel, like the instant one, the Court has to attempt to look at that publication through the eyes of reasonable right-thinking members of the society as a third party. Unless in cases where innuendo has been pleaded in the pleadings, a Court has to attach the ordinary and natural meaning to the words used in a publication in determining whether such a publication is injurious to the reputation of the Plaintiff( Respondent).

87. As to whether the impugned publication is defamatory, I lean on the case of Alnashir Visram vs Standard Limited [2016] eKLR where it was held that;“The big question is whether the words as published of and concerning the plaintiff are defamatory of his character and reputation. A publication is considered to be defamatory of a person’s character and reputation if it conveys a meaning which is likely to either lower the persons’ reputation in the eyes of ordinary reasonable members of the community; lead those people to ridicule, avoid or shun or despise the person; or injure the person’s reputation in business, trade or their profession.It is worth noting that the meaning behind the publication can be implied or expressed. It all depends on the context and circumstances of each case. Thus, defamation may arise from the direct meaning of words used when taken on the face value, through an innuendo from the statement itself, or from an innuendo based on known facts that are not included in the statement. It is also irrelevant whether the publisher or author intended to make a defamatory statement of and concerning the plaintiff when he or she published the defamatory words complained of. The applicable test is an objective test; whether or not the statement is defamatory is judged against contemporary community standards from the standpoint of a reasonable person.Further, it is important to note that not all criticism or abuse is necessarily defamatory. The main issue is whether or not the ordinary person would tend to form a significantly lower opinion of the plaintiff because the plaintiff is the subject of that criticism.”

88. In Kudwoli's case (supra) the court dealt with the applicable standard of who a reasonable person is in the context of a defamation claim. The Learned Judge expressed himself as follows: -“This standard rules out extremes at either poles; embracing neither a genius nor an idiot, neither a fanatic nor a faddist, neither a walking encyclopedia nor an illiterate. He is simply a fair–minded person and not one with a morbid or unduly suspicious mind which must discover defamatory imputation in everything published. One with impervious intellect is excluded. The test of reasonable which guides and directs the court in deciding whether the matter carries a defamatory imputation requires involving ordinary intelligence, not the intelligence of persons setting themselves to work to deduce some unusual imputation might succeed to discover. In applying this test: -“the judge ought not to take into account any mere conjectures which a person reading the document might possibly form" (per Lord Selborne in Capital and Counties Bank v. Henty (1882) 7 App. Cas 741; and see per Brett, J in Hunt v. Goodlake (1973) 43 LJCP 54 at p. 56. )The court will reject meanings which can only emerge as the product of some strained or forced or unreasonable interpretation (See Lord Moris in Jones v. Sixelton (1963) 1WLR 1362 at P. 1370; And,“It is unreasonable that, where there are a number of good interpretations the only bad one should be seized upon to give a defamatory sense to the document” (per Brett, LJ in Capital and Counties Bank v. Henty (1880) 5 CPD 539 at p. 54”).If words conveyed a defamatory imputation to those to whom they were published, but would not have done so to a reasonable man, they are not defamatory. The mere fact that the hearers or readers understood the matter in a defamatory sense does not make it defamatory unless they were reasonably justified in so understanding it.......…...In looking for the meaning of the matter complained of, there is always one rule to follow. It is this, that it is necessary to consider not only the very matter of which the plaintiff complains alone; it is necessary to take into account the context of the matter as a whole, and the mode of publication. The entire writing, conversation, or picture, must be construed in its setting as a whole. Thus, a plaintiff cannot be allowed to select an isolated passage or a picture in a publication out of its context and complain of that alone if other parts or the rest of the publication threw a different light on the matter sieved upon. You must look at the whole publication to see whether it was calculated to injure the plaintiff's reputation....…. The question is always whether the whole publication, taken together, is injurious to the reputation of the plaintiff. The defamatory string of a matter may be removed by that which surrounds it.... As the wise say, the bane and antidote must be taken together.......A publication may be defamatory upon the face, or it may carry a defamatory meaning only the reason of extrinsic circumstances or facts passing beyond the general knowledge of those who may receive it. Some words or pictures may mean nothing or are innocent to one having only a general knowledge. Extrinsic facts coming to light may cause the matter to give a meaning to those who know them which is not the one appearing on the face of it....”

89. On a cursory perusal of the impugned publication, the following are countenanced in the eyes of a reasonable and right thinking person when the publication was made: -i.The Respondent was under the patronage of a ruthless dictatorial regime.ii.The Respondent was planted by the former President Daniel Arap Moi to do dirty work for the ruthless regime.iii.The Plaintiff was given carte blanche to neutralize his enemies by a ruthless dictator.iv.The Respondent gained political and economic power by being in the inner circle of the former President Daniel Arap Moi.v.The Respondent was a wily businessman.vi.The Respondent was involved in manipulation of elections ensuring that leaders friendly to a ruthless regime were elected.vii.The Respondent was a tycoon and was one those behind Moi’s long hold on Power.

90. The Appellant contended that in defamation case, the most important ingredient is the effect of the spoken and written words in the mind of third parties about the respondent and not how he feels the words portray about him.

91. According to the Appellant, the Respondent did not prove the words complained of injured his reputation, character or dignity as no independent witness was called to prove their interpretation or understanding of the Published words.

92. The respondent on his part submitted that failure to call an independent witness was not fatal to his case. He contended that his case was uncontroverted and therefore it was unnecessary to call a witness. He referred this court to the case of Adan Keynan Wehliye vs Standard Limited & Another (supra) where while relying in the Court of Appeal case of Miguna Miguna vs The Standard Group Limited & Another (supra) stated that where the credentials of the plaintiff were not challenged, evidence of an independent witness was not necessary.

93. In the circumstances of this case, it was not mandatory that the Respondent call an independent witness as the publication referred to was proved to have been printed and published in a newspaper with a wide circulation.

94. With regard to the ingredient of malice in a defamation case, I find instructive the expressions by Odunga, J. in Phinehas Nyaga vs. Gitobu Imanyara (supra) that:“...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 fair 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 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."

95. The Appellant admitted the aforesaid publication. It however stated that the publication was not defamatory as alleged by the Respondent. It also submitted that no evidence of ill will on its part was adduced by the Respondent. The Appellant argued that its intention was simply to provide the information which the people required to make responsible and informed decisions on matters that affect their country and as such there is no tortious liability for fair information. The Appellant argued that the article was not malicious and was generally discussing rich influential personalities during the Moi Era .The Appellant believed the lower court erred when it found that there was no proof that the comment was a matter of public interest, a fact evident without requiring elaboration.

96. With all due respect to the Appellant, its position is totally misplaced. Relating the respondent to elimination of opponents, in the Kenyan contest, is tantamount to equating the respondent to a killer. Many Kenyans still recall the so called dark ages when President Moi was in power. Many political figures were killed, detained without trial, and also subjected to trumped up charges in court. Anyone associated with that regime’s action in that respect is likely to be frowned upon. In my opinion, the publication in its plain reading and meaning, and without proof of justification was defamatory.

97. The Appellant could have adduced evidence in support of its case but it failed to do so. Submissions do not amount to evidence unless expressly adopted as such.

98. It is well settled law that evidence ought not to be introduced by way of submissions. A case in point is the decision of Mwera, J (as he then was) in Erastus Wade Opande vs. Kenya Revenue Authority & Another Kisumu HCCA No. 46 of 2007 where he held that:“Submissions simply concretise and focus on each side’s case with a view to win the court’s decision that way. Submissions are not evidence on which a case is decided.”

99. The same Judge in Nancy Wambui Gatheru vs Peter W Wanjere Ngugi Nairobi HCCC No. 36 of 1993 expressed himself as follows:“Indeed and strictly speaking submissions are not part of the evidence in a case. Submissions, to this court’s view, are a course by which counsel or able litigants focus the court’s attention on those points of the case that should be given the closest scrutiny in order to firmly establish a claim/charge or disprove it. Once the case is closed a court may well proceed to give its judgement. There are many cases especially where parties act in person where submissions are not heard. Even some counsel may opt not to submit. So submissions are not necessarily the case.”

100. Similarly, the Court of Appeal in Daniel Toroitich Arap Moi vs Mwangi Stephen Muriithi & Another [2014] eKLR:“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.”

101. The submissions by the appellant cannot be construed to be evidence. Therefore, in the absence of evidence by the appellant in the trial the court was right to find that the appellant’s testimony was unchallenged.

102. As matters stand there is also no evidence that the Appellant in any way tried to verify whether the information acquired and subsequently published was accurate. Further, the Appellant failed to prove that the comment made was on a matter of public interest. I am therefore in agreement with the trial court that the defence of fair comment could not stand.

103. In the premises, this court is satisfied that the trial court rightly found that the Respondent proved on a balance of probability that the publication was defamatory of him.

Issue No.2 104. The Appellant submitted inter alia that the trial court erred in assessing damages as she disregarded the fact that the Respondent did not present evidence of actual damage to his reputation or character and that the respondent did not present any evidence in support of losses to his business or the purported ownership.

105. In the case of Butler –v- Butler (1984) KLR 225 the court held:-“The assessment of damages is more like an exercise of discretion by the trial judge and an appellate court should be slow to reverse the trial judge unless he has either acted on wrong principles or awarded so excessive or so little damages that no reasonable court would; or he has taken into consideration matters he ought not to have considered, and in the result arrived at a wrong decision."

106. An award of damages in defamation case is discretionary. The court of Appeal in C A M v 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 233-243include 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.

107. In the case of Standard Limited vs G.N. Kagia T/A Kagia & Company Advocates [2010] eKLR the court took the view that in situations where the author or publisher of a libel could have with due diligence verified the libelous story or in other words, where the author or publisher was reckless or negligent, these factors should be taken into account in assessing the level of damages. The court also stated that the level of damages awarded should be such as to act as deterrence and to instill a sense of responsibility on the part of the authors and the publishers of libel and that personal rights, freedoms and values should never be sacrificed at the altar of profiteering by authors and publishers.

108. In Ken Odondi & 2 Others vs James Okoth Omburah t/a Okoth Omburah& Company Advocates [2013]eKLR the court stated:“…In the English Court of Appeal decision in the case of John v MG Ltd.[1996] I ALL E.R. 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........

109. In the instant case the Respondent’s ownership of the three hotels i.e. Lake Nakuru Lodge, Summit Hotel and Crescent Camp Hotel is a not in contention. The Respondent pleaded that he was the owner of the aforesaid hotels and the Appellant confirmed the same in paragraph 4 of its defence. Its publication also referred to the three establishments.

110. I have perused the record and it is indeed true that the Respondent led no evidence of actual loss as a result of the publication of the said defamatory statement. However, in instances of libel, the law presumes damage as long as a party has shown that the defamatory material was written or printed or in some permanent form. This position was restated in the case of Alnashir Visram vs Standard Limited [2016] eKLR.

111. In the case of Kagwiria Mutwiri Kioga & Another vs The Standard Ltd & 3 Others [2015] eKLR, the Court of Appeal cited with approval V.W. Rogers, the Learned author of Winfield and Jelokwiz on Tort, of 6th Edition 2002 at pp 404-405 where it was stated as follows:-“12. 2.Defamation is a publication of a statement which reflects on a person’s reputation and tends to lower him in the estimation of right thinking members of a society generally or tends to make them shun or avoid him. For historical reasons defamation takes the form of two separate torts, libel and slander, the former being more favourable to the claimant because it is actionable per se and injury to reputation will be presumed…In contrast, in cases of libel (and in some cases of slander) the claimant can recover general damages for injury to his reputation without adducing evidence that it has in fact been harmed, for the law assumes that some damage will occur in the ordinary course of things…”

112. in Uren vs. John Fairfax & Sons Pty Ltd 117, C.L.R. 115 it was held that:“...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 a consolation to him for a wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money."

113. Guided by the above authorities, I am of the considered view that the Respondent despite not proving actual damage he was entitled to general damages for defamation.

114. The trial court, in finding that the Respondent was entitled to aggravated damages, made reference to the case of Miguna Miguna vs Standard Group Limited & 4 others [2017] eKLR where the court stated;In John v MG Limited [1997] QB 586:“Aggravated damages will be ordered against a defendant who acts out of improper motive e.g. where it is attracted by malice; insistence on a flurry defence of justification or failure to apologize".

115. It has been stated that aggravated damages are meant to punish the wrongdoer and act as a deterrent from similar conduct in the future. (see Ken Odondi & 2 Others vs James Okoth Omburah t/a Okoth Omburah & Company Advocates [supra]).

116. The question to be answered is whether the words published were maliciously done, so as to entitlte the respondent to the aggravated damages. It is on record that the appellant was duly notified of the need to retract the contents of the publication, it did not do so. In the circumstances, I opine that the respondent was entitled to aggravated damages.

117. I will now determine whether the general damages and aggravated damages awards were excessive.

118. Before the lower court, the Respondent prayed for Ksh.6, 000,000/= as general damages while relying on the case of Adan Keynan Wehliye vs Standard Limited & another (2020)eKLR where Kshs. 6 million was awarded as general damages and Kshs. 1 million as aggravated damages.

119. The Appellant on its part submitted that the Respondent had not proved his case and he was therefore not entitled to the prayers sought.The Appellant relied on the case of Royal Media Services Limited t/a Citizen TV & another vs Alfred Amayio Maiko [2021] eKLR where the Appellate court reduced the trial court award of Ksh.4, 000,000/= to Ksh. 2,500,000/= for a teacher on grounds that the trial court failed to take into account the respondent’s standing in terms of status, fame, recognition, credit and reputation.

120. In the instant case, the Respondent is a prominent business man in travel and Hospitality Sector. He runs the three aforesaid hotels and he is also well established and recognized globally, regionally and locally. His establishments are still in operation. He did not provide evidence that his business was duly affected by the publication.

121. Considering the respondent’s position in life and the extent of circulation of the publication, I find that the award of general damages was excessive. Without appearing to belittle the respondent, his status cannot be equated to that of, for instance, the claimant in Johnson Evan Gicheru vs The Standard Newspaper (2002) eKLR. The claimant therein was once the Chief Justice of the Republic of Kenya. In Nation Media Group Ltd & 2 others vs John Joseph Kamotho and 3 others (2010) eKLR, the respondent therein was a cabinet minister in Government. These were people of higher standing in society, holding public offices.

122. For the above reason, I find reason to disturb the award for general damages. I am of the opinion that an award of Ksh. 3,000,000/- would suffice as general damages.

123. As regards the award of aggravated damages, I find the same to be reasonable and within the range of awards made in similar cases even where the claimants were not well known public figures. I choose not to disturb this award.

124. In conclusion, I find that the appeal partly succeeds in respect to the general damages only. I set aside the award of Ksh. 5,000,000/- by the lower court and substitute it with an award of Ksh. 3,000,000/- . The award of Ksh. 1,000,000/- as aggravated damages is upheld.

125. As the appellant was partly successful, I order that each party will bear its own costs of this appeal.

126. In summary, I make the following orders;a.The award of general damages is set aside and is substituted with an award of Ksh. 3,000,000/-.b.The award of Ksh. 1,000,000/- as aggravated damages is upheld.c.Each party to bear their own costs of this appeal.

DATED, SIGNED AND DELIVERED AT NAKURU THIS 4TH DAY OF DECEMBER, 2023. H. M. NYAGA,JUDGE.In the presence of;C/A KipsugutMr. Mburu S. K. for RespondentMs Njoki for Kagucia for Appellant