[2025] KEHC 1453 (KLR)

Nation Media Group & another v Imbwaga (Civil Appeal 42 of 2022) [2025] KEHC 1453 (KLR) (30 January 2025) (Judgment)

Neutral citation: [2025] KEHC 1453 (KLR)

Republic of Kenya

In the High Court at Kakamega

Civil Appeal 42 of 2022

SC Chirchir, J

January 30, 2025

Between

Nation Media Group

1st Appellant

Herman Manyora

2nd Appellant

and

Alex Amasakha Imbwaga

Respondent

(An appeal from the judgment of Honourable Linus Kassan, (Chief Magistrat)e delivered on the 20/7/2022 in Kakamega CMCC No. 155 of 2017)

Judgment

1. The Respondent herein sued the Appellants at the lower court, seeking for general and aggravated damages for defamatory words said to have been uttered during a morning talk show hosted by the 1st Appellant. The show dubbed “AM Live” took place on 14th February 2017 and the alleged defamatory words was made by the 2nd Appellant.

2. In a judgment delivered on 20th July 2022, the trial Magistrate returned a verdict in favour of the respondent herein and awarded him general damages of ksh. 5,000,000 and another ksh.1,000,000 in lieu of an apology.

3. The Appellants were aggrieved by the judgment and proffered this Appeal. They have set out the following grounds:a).The learned trial magistrate erred in law and in fact in failing to exhaustively and or cumulatively evaluate the evidence on record and thus arrived at an erroneous conclusion that the respondent had been defamed.b).The learned trial magistrate erred in law and in fact in holding that the respondent had proved his case for defamation when the article complained of did not refer and could not have been understood to refer to the respondent.c).The learned trial magistrate failed to appreciate the real purport and thrust of the article complained of, that it did not and could not bear the meaning(s) alluded to it by the respondent.d).That the learned magistrate erred in law and in fact in failing to sufficiently consider the existence of circumstances that mitigated any award of damages payable to the respondent.e).The learned trial magistrate erred in failing to adequately consider the appellant’s submissions.f).The learned trial magistrate erred in law in awarding damages in lieu of apology when same was not pleaded and/ or prayed for.g).The learned trial magistrate erred in law in awarding sums in damages which was/is manifestly and/or inordinately high thus connoting an error in principle, taking into account past decisions of the court and the current trend of awards.h).The entire decision of the learned trial magistrate is against the weight of evidence.

4. The Appeal was canvassed by way of written submissions.

Appellant’s submissions 5. It is the Appellants’ submissions that the alleged defamatory words did not make any reference to the plaintiff ; that for defamatory words to be actionable the words must be understood to be published of and concerning the plaintiff . In this regard the case of Knupffer vs London Express Newspaper Ltd ( 1944) 1 All ER 495 has been relied on.

6. It is further submitted that the statement referred to one Aggrey Musiega who was a former magistrate, based in Nyeri and who was then the legal Advisor to the county of Vihiga; that indeed the respondent did confirm during trial that the said Musiega worked in the capacity of legal adviser to the Governor and would thus be referred to as the Attorney General.

7. It is further submitted that in any event , there is no such office as that of the Attorney General in any county in Kenya and therefore the respondent could not have held such an office. ; that since Musiega was then holding the office of the county Attorney then it followed that the words referred to Musiega and not the respondent herein. The respondent further points out that by the Respondent’s own admission , he had never been a magistrate and was not the Attorney General.

8. That no photograph of the respondent was displayed during the broadcast to show that it was him being referred and that the plaintiff failed to prove that the words uttered were understood to refer to him.

9. The Appellant refers the court to a judgment in Kisumu Civil Appeal No. 53 of 2021 which referred to one Alex Musiega as the county Attorney of Vihiga.

10. The Appellants further submit that in any event, the words uttered were subject to different interpretations; that the words that were used in the interview:“ I have brought you tea leaves because I was told if my case is to go well I have to give you chai” are totally vague; that in any case the article went on to state that the magistrate declined the bribe and jailed the person who had offered it. That the words suggested that the person being referred to was a person of integrity.

11. On whether the words used portrayed the person as arbitrary and did not follow due process, the Appellants submit that the magistrate’s action was neither arbitrary nor contrary to due process; that the magistrates have their own rules and procedures of managing their courts, and the chief justice only applied mercy to have the old woman released.

12. It is pointed out that the topic of discussion was the Doctor’s strike, and the doctors who had been jailed ; that the 2nd Appellant merely related the incident in order to illustrate the point that the chief justice could intervene and have the jailed doctors released from jail on grounds of mercy to enable them attend to the sick.

13. It is the Appellant’s further submission that while looking for the words complained of, the court ought to consider the context of the discussion

14. It is argued that there was no evidence that the Respondent reputation, character credit and career, profession and standing in society was affected.

15. It is further argued that in considering whether the words were defamatory the court must consider the ordinary man’s understanding of them. That by the respondent’s own admission his standing in the work place was not affected, that he went on to serve his full term as the county Attorney of vihiga. Further there is no evidence that his employer instructed him to explain himself in relation to the utterances and that his standing as practising Advocate was not affected.

16. It is the Appellants’ further submission that although the respondent’s daughter (PW2) told the court that her admiration of the Respondent had reduced , she nevertheless admitted during cross -examination that she was still close to her father and that respondent failed to adduce evidence showing that he was shunned or ridiculed or that the words were false.

17. The Appellant further contends that , the allegation of malice was never proved. In this regard the Appellants have relied on the case of Nation Newspaper ltd vs. Gilbert Gibendi Kakamega Civil Appeal No. 14 of 2000 (2002) eKLR;

18. On quantum, it is argued that the court can only award damages as pleaded; that in this case, the plaintiff had pleaded for general and exemplary damages only; that the award for damages in lieu of apology had no basis and should be disallowed. It is further submitted that in any event, exemplary damages was not proved and should equally be dismissed.

19. It is the Appellant’s further submission that in awarding damages the trial court departed from the court of appeal decision in the case of Kenneth Nyaga Migwe vs. Austine Kiguta & 2 others eKLr (2015) where an advocate was awarded Kshs. 1,500,000/= on implication of corruption and in Ezekiel Oduk vs. Nation Media Group ( citation not provided) where an ward of Kshs. 3,000,000/= was made.

20. The Appellant proposes ksh. 1,500,000 in damages instead.

21. The Appellant finally submits that the plaintiff did not plead for aggravated damages or damages in lieu of apology and therefore the award of ksh. 1,000,000 should be disallowed in the appeal and the cross- Appeal.

Respondent’s submissions 22. The Respondent chose to address 3 issues in his submissions, namely;-a).Whether the Appellant’ cited authority to wit Kisumu sCivil Appeal No. 53 of 2021 should form part of the appellant’s evidenceb)Whether the respondent proved his case on a balance of probabilityc).Whether the respondent’s cross appeal should be allowed.

23. on whether the Appellant’s cited authority to wit Kisumu Civil Appeal No. 53 of 2021 forms part of the Appellant’s evidence, it is submitted that the same is tantamount to introducing new evidence as the cited authority was not part of the evidence; that no application was made seeking to introduce new evidence, and that in any event , parties are bound by their pleadings. The respondent has cited the decision in the case of Independent electoral and Boundaries Commission & Another vs. Stephen Mutinda Mule & 3 others (2014) eKLR, in support of this proposition.

24. The Respondent further contends that such evidence cannot be produced at the point of submissions as the Appellant sought to do and further points out that submissions cannot take the place of evidence . The respondent has relied on the cases of Daniel Torotich Arap Moi vs. Mwangi Stephen Muriithii & Another (2014) eKLR, Erastus Wade Opande vs. Kenya Revenue Authority & Another Kisumu HCCA No. 46 of 2007 and Nancy Wambui Gatheru vs. Peter Wanjere Ngugi Nairobi HCCA No. 36 of 1993, in this regard.

25. On whether the respondent had proven its case on a balance of probability it is submitted that the totality of the evidence proved that the words uttered referred to the respondent and were defamatory.

26. The respondent urges the court to exercise caution as it exercises the appellate role as it did not have the benefit of hearing witnesses as was held in the case of Kenya Ports Authority vs Kuston Kenya Ltd( 2009) 2 EA 212 .

27. It is submitted that the appellant’s utterances that the magistrate jailed the old woman, in its ordinary meaning would be understood that the respondent was being high -handed, incompetent , unfit to hold public office , cold- hearted individual , devoid of any compassion and a judicial officer that does not regard due process. It is further submitted that the act of jailing an old woman offended the principal of natural justice, is tainted with illegality , irrationality and procedural impropriety and hence bringing the competence of the judicial officer into doubt. That the magistrate as portrayed was being a judge in his own case and his actions were tantamount to usurping the powers of the DPP.

28. The respondent submits that it was in regard to such illegalities and glaring illegalities that the “chief justice intervened and eventually had the old woman released. “

29. On the evidence ,the respondent submits that DW1 made it clear that the person he was talking about was the Attorney General of vihiga; that the 2nd Appellant admitted in cross- examination that the description of county Attorney will fit the person of the Attorney general of vihiga. And finally that there was ample evidence that he was the County Attorney of Kakamega at the time the utterances were made.

30. It is finally submitted that the utterances were defamatory and the Appellant did not , at the earliest , provided the clarification on the person being referred to.

31. On quantum, the respondent submits that the award was reasonable. He has relied on the case of :Nelson Havi vs. Headlink publishers Ltd and Miguna Miguna vs. Standard group Ltd & 4 others where the court awarded , 5,000,000 who like the respondent herein is an Advocate; Miguna Miguna vs Standard Group Ltd & 4 others( 2017) e KLR, where a similar award was made to an Advocate.

Cross- Appeal 32. On the cross- appeal the respondent submits that that should this court find that the award of ksh. 1,000,000 in lieu of apology was erroneous, the court is urged to award that amount as exemplary damages as the same was pleaded, and serve the same purpose, in any event. It is submitted that the 2nd Appellant’s response to questions on cross- examination to the effect that : . “ In the context of television show , we don’t go to the station with fine facts” and “ I don’t see the need to apologize”, show that no precaution was taken in uttering the defamatory words and was done with certain recklessness. That failure to apologise entitled the respondent to aggravated damages .

Analysis and determination. 33. This is a first Appeal and the role of this court is to review the evidence as presented during trial, evaluate it and arrive its own findings. However this court must bear in mind that unlike the trial court , it has not had the benefit of hearing and seeing witnesses first hand.( Ref: Kenya ports Authority vs Kuston Kenya Ltd( supra)

34. I have considered the memorandum of Appeal the lower court proceedings and the parties’ extensive submissions and Authorities relied on, and I have identified the following issues for determination:a).whether the words uttered referred to the plaintiff or was understood to refer to the plaintiff.b).whether the words were defamatory and if in the affirmative, if they caused any injury to the respondentc)whether the award on general damages was excessived)whether the Respondent is entitled to damages in lieu of apologye).the counterclaim

Whether the words uttered referred to the plaintiff. 35. In the case of John Ward v Standard Limited [2006] eKLR the court listed the ingredients of the tort of defamation as:a).The statement must be defamatory.b).The statement must refer to the plaintiff.c).The statement must be published by the defendant.d).The statement must be false."

36. The Appellant has argued that the utterances did not refer to the plaintiff but to a different, and known person, one Aggrey Musiega , who was then the legal Advisor of the county Government of Vihiga; that the words made no reference to the plaintiff and were not in reference to him; that the words are only actionable if they are understood to be published of, and concerning the plaintiff

37. The Appellant then went on to pinpoint some of the admissions made by the plaintiff during cross- examination. They submit for instance that the Respondent stated that he never worked for the judiciary; that his appointment letter refers to County Attorney and not Attorney general; that Aggrey Musiega was then the legal advisor to the Governor of Vihiga ; that the said Musiega had worked as a Magistrate in Nyeri , and that the 2nd Appellant made a statement and clarified that he was referring to a Mr. Musiega.

38. The Appellants further referred to the testimony of PW2 the daughter of the respondent who , in cross- examination stated that her father was the Attorney general of vihiga that he has never been a magistrate.Finally the Appellant has referred to the testimony of PW3 who stated that : the plaintiff never served as a magistrate, that they refer to him as Attorney General but he was not sure whether the reference is correct

39. On the other hand the respondent testified that he was the County Attorney for Vihiga county Government; he produced a letter of Appointment dated 7/8/2015 , appointing him as the County Attorney of the County of Vihiga effective 1st September 2015. It follows that on 14th February 2015 ,when the words were uttered the plaintiff was still the county Attorney for Vihiga.

40. He submits that the 2nd Appellant made it clear during cross- examination that the person he was referring to , was then the Attorney General of Vihiga; that the 2nd Appellant further admitted that that the county Attorney will fit the person of Attorney General.

41. What is not in dispute is that at the time the utterance were made, the respondent herein was the County Attorney of Vihiga County. The 2nd Appellant talked about the Attorney general of vihiga. Are these Titles the same? The imperative question is, what would be the immediate reaction of an ordinary listener in trying to identify the person who is being referred to ?Would he or she strain their minds to recall who was once a magistrate in Nyeri or rather who is the current County Attorney of Vihiga. Logically it would be the latter.

42. The Appellant has argued that in any case, the respondent has never been a magistrate or an employee of the Judiciary. However it mattered not whether the 2nd Appellant was correct in stating that the Respondent was the same person who was a magistrate. what mattered was that the person who was being referred to was the County Attorney of of vihiga . That was how the listeners could easily identify him; That was how other people could easily identify him.

43. In this regard, I find support in the decision of the court in the case of Newstead vs London Express Newspaper Ltd ( ( 1939) 4All ER 319 cited with approval in the case of Mwangi Kiunjuri v Wangethi Mwangi & 2 others [2016] eK where the court held: “ where the plaintiff is referred to by name or otherwise clearly identified the words are actionable even if they were intended to refer to some other persons. It is not essential that the plaintiff must be named in the defamatory statement where the words do not expressly refer to the plaintiff they may be held to refer to him if ordinary sensible readers with knowledge of the special fact could and did understand them to refer to him” ( Emphasis added)

44. In Mwangi Kiunjuri’s case ( supra) the court of Appeal went on to state as follows “…….In the present case, as against the 1st and 2nd respondents, the issue is whether a sensible/reasonable person in reading the publication complained of is able to identify the appellant as the person under reference. Where identification is in issue, it is the duty of the trial court to rule whether or not the words are reasonably capable of being understood to refer to the plaintiff. In determining this question, the trial court must consider whether or not ordinary reasonable persons having the knowledge proved, could understand the words to refer to the plaintiff. If no reasonable person could have reasonably understood the words as referring to the plaintiff, there is no question left for determination; but if the words could reasonably lead persons acquainted with the plaintiff to believe that he was the person referred to, then the trial court has to make a determination whether or not the words did in fact refer to him. (See Lord Morris of Both-y-Gest in Jones -v- E. Hutton & Co. [19090 2 KB 444 at 454).In making the determination whether the statement could reasonably identify the plaintiff, the trial court has to assess the witnesses and their reasonableness and decide whether reasonable persons would reasonably understand that the plaintiff was referred to. The trial court makes this determination as a matter of fact.”

45. I have considered the witness testimonies. Pw2 told the court “On 14/2/2017 I was at home watching NTV Channel on the morning and there was a show hosted by D….when the show was going on one of the panellist Herman adversely mentioned the AG Vihiga who was a magistrate sometimes jailed a woman who had attempted to bribe him. At the time , it was my father who was the AG of vihiga county Assembly. The Magistrate was my father because the current AG of vihiga was my father. I called my father and told him about the adverse mentioning of his name …”

46. PW3 also testified as follows: “ On 14. 2.2017 I was in my home watching TV, NTV channel on my TV. The plaintiff is well -known person to me as an Advocate and at the time he was serving as AG, vihiga county. Utterances were made directed to him during the TV programme hosted by Herman Manyora- 2nd defendant. He was depicted as a corrupt person “ On cross- examination, he stated “ he has never served as a magistrate to the best of my knowledge but an Advocate we know and refer to him as AG but I cannot tell whether that is the correct Title.”

47. PW2 was well acquainted with the respondent. He was her father. On the other hand PW3 stated that he had known the respondent since the year 2009. From their narratives of what transpired during the airing of the words complained of, it comes out that they were not al all mistaken about the person he was being referred to. That is why PW2 quickly called the respondent and notified him about the adverse mention of his person. Pw3 immediately knew that it was “that acquaintance of his who is the AG of Vihiga.”

48. The fact that the 2nd Appellant mistook the respondent as the then magistrate in Nyeri was immaterial. In his testimony he told the court:” He was not the one I was talking about, I was talking about Busiega Aggrey. He was a legal Advisor to the government” . In the words of the court in Newstead case ( supra) it does not matter if the words were meant to refer to someone other than the plaintiff.

49. Further from the finding of the court of Appeal on Musikari Kombo v Royal Media Services Limited (Civil Appeal 156 of 2017) [2018] KECA 801 (KLR), it came out that utterances can be actionable if the defaming words in question concern a party by inference. In other words the identity of a person can be inferred from the defaming statements uttered.

50. In this case the words “ he is currently the Attorney General of Vihiga county” placed the Respondent in the centre of the defamatory words.

51. Am satisfied that based on the testimonies of the three witnesses it is evident that the defamatory words were understood to refer to the respondent.

52. The other issue that has been raised is the question of County Attorney vis- a- vis the words used by the 2nd Appellant the Attorney general . I understand the Appellant’s argument to be that, in any event, there is no title like the Attorney General in the structure of the County Government.

53. The relevant issue however is that , that is how the general public understood his position. PW3 told the court that the respondent was the AG of vihiga county. On cross- examination he stated that they used to refer to him as AG though he did not know if the title was correct. PW2 told the court that “ Herman adversely mentioned the AG, Vihiga county….. at that time it was my father who was the AG vihiga county”.To the public and indeed for all practical purposes the County Attorneys are Attorney generals of County Government. Indeed during cross- examination , the 2nd Appellant admitted that the county Attorney is akin to the Attorney General to the county.

54. Thus the fact that the person referred to in the defamatory words was given a wrong official designation by the speaker, did not bring any confusion on the person the public understood to have been the subject of discussion.

Whether the words were defamatory and whether the respondent suffered any injury. 55. Defamation is defined in the Black Law’s dictionary (11th Ed) “as malicious and groundless harm to the reputation or good name of another by making a false statement to a third person”

56. Halsbury’s Laws of England ( 4th Edition vol. 28) defines a defamatory statement as: -“A defamatory statement is a statement which tends to lower a person in the estimation of right thinking members of society generally or to cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule or to convey an imputation on him disparaging or injurious to him in his office, profession, calling, trade or business.”

57. In the case of John Ward ( supra) the court defined it as follows:“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. ……..”

58. Turning to the present case, the words complained of were as follows:“.. sometimes back about 10…….12……….15 years ago, an old lady went to court and she told the judge;-I have brought you tea leaves because I was told if my case has to go well I have to give you chai. But since I can’t make you tea…” ( that was in Nyeri the magistrate was my student sometime back so I know him. Today he is the Attorney General of Vihiga County)“So this guy said ‘You are coming to bribe me in your court?” he jailed the old woman of about eighty (80) something ninety (90) years. The chief justice re-called that file and had that woman released.”

59. The Appellant contends that the words: “I have brought you tea leaves because I was told if any case is to go well I have to give you chai” are vague and subject to different interpretations and that in any event the said Magistrate declined the bribe and went on to jail the person who offered it. ; that the words meant that the Magistrate was a person of integrity. ; that the fact that the Magistrate did not take a bribe can only be construed that the person being referred to, was one of high moral standard and integrity ,and averse to corruption.

60. However the respondent was not complaining about the words that portrayed the positive character of the magistrate but the negatives in the utterances. This argument in my view is therefore immaterial, and the argument, in any event, is meant to take away attention from the defamatory parts of the statement.

61. The Appellant has submitted that the words could not also have reflected him to have acted arbitrarily as it is common knowledge that there are rules and procedures of managing courts. ; that the 2nd Appellant was not saying that the magistrate was wrong to jail the old woman.

62. On the other hand the respondent submits that the jailing of the old woman in its ordinary meaning would be understood to say that the respondent was high – handed , incompetent, unfit to hold public office cold- hearted , devoid of compassion and has no regard for due process. It is further stated that contrary to Rules of natural justice, it reflected the magistrate to have been a complainant, prosecutor and the judge in his own case.

63. I agree with the respondent that the depiction given by the respondent was what was immediately created in the minds of observers or listeners. I would add that the fact that the lady was 80-90 years old , and that there was intervention by the chief justice to the legal minds out there meant that the magistrate knew nothing about the sentencing guidelines formulated by the judiciary, broke the rules of natural justice and usurped powers of other players in the justice sector.

64. The Appellant has further argued that there was no prove of malice in the utterances. Malice may be inferred from the words or conduct of the defendant. In Phineas Nyagah v Gitobu Imanyara (supra) Justice Odunga held: held that: -“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. .....Malice may also be inferred from the relations between the parties.... The failure to inquire in the facts is a fact from which inference of malice may properly be drawn.”

65. The 2nd Appellant , at cross- examination told the court that when they appear in such shows they are not keen on the facts. This was an outright admission of recklessness and in the words of Justice Odunga, it is evidence of malice.

66. Defamation is about ridicule, lowering a person in the estimation of right thinking members of society, injury to one’s office and profession or trade. The Respondent told the court that although his contract with the county government was not terminated his superiors called him and questioned him about the utterances that had been made against him.

67. Further, Pw2 told the court that the respondent lost the trust of some elders who wanted him to contest for a parliamentary seat for Hamisi constituency.

68. Am satisfied that the respondent suffered ridicule, and injury to his personal and professional reputation.

69. The plaintiff proved his case on a balance of probabilities.

70. The Respondent raised an issue about new evidence at the stage of submissions. I have taken note of the fact that the Appellant has also sought to rely on the said evidence for purpose of this Appeal. It is trite law that submissions are not evidence . There was no evidence that the Appellant was granted leave to attach the documents to the submissions. It is apparent that the trial court rejected them. This court equally rejects them, as there was no leave to submit additional evidence, even on this Appeal

Damages. 71. The Appellant has argued that the award on general was too excessive. I have compared the award with other similar awards awarded in the following cases:a.Daniel Musinga vs Nation Newspapers Ltd( 2005) e KLR- An Advocate was awarded ksh. 4,000,000 for defamation in the year 2005. b.In James Okoth Omburah ( 2013) e KLR the court awarded ksh. 4,500,000 to another Advocate . The year was 2013c.In Ambassadour Chirau Makwere vs Royal media services ( 2013) e KLR the court of Appeal awarded ksh. 6,000,000.

72. In the light of the above decided cases, I do not find the lower court award to have been high and therefore I have no reason to disturb it.

Damages in lieu of Apology. 73. It is trite law that parties are bound by their pleadings. I have looked at the plaint and I don’t find any plea for such damages. There was therefore no basis for such an award. Consequently, the award of ksh. 1,000,0000 in lieu of apology is hereby set aside.

The cross- Appeal 74. In the cross- Appeal the respondent faults the trial court for its failure to award the costs of exemplary damages. In Nation Media Group Limited & another v Wambui & another (Civil Appeal 270 of 2018) [2023] KECA 89 the court of Appeal held as follows; “ Exemplary damages are meant to punish the defendant, and arise as an award for libel where the claimant pleads, and is able to demonstrate recklessness on the part of the defendant in publishing the words complained of despite being aware at the time of the impugned publication, or knowing that the publication was tortious, but decided to publish it nonetheless because of the prospects of material advantage. Exemplary Damages are awarded in the following instances: (1) oppressive, arbitrary or unconstitutional actions by servants of government; (2) conduct calculated by the defendant to make him a profit; or (3) cases in which payment of exemplary damages is authorized by statute”,

75. There was no proof that the Appellants were reckless or at the time they knew the words to be false. This head of damages was not proved , and I therefore dismiss it.

76. In the end the Appeal partially succeeds and I proceed to make orders as follows:a).The lower court award on general damages is upheldb).The award of ksh. 1,000,000 in lieu of apology is dismissed.c).The cross- Appeal is hereby dismissedd).Each party to meet their own costs in this Appeale).Subject to such payments as may have been made, the outstanding amount due to the respondent will earn interest at court rates ,from the date of the judgment in the lower court.

DATED, SIGNED AND DELIVERED AT KAKAMEGA THIS 30TH DAY OF JANUARY 2025. S. CHIRCHIRJUDGE