[2023] KEHC 23663 (KLR)

Nation Media Group v Media Complaints Commission; Muigai (Interested Party) (Judicial Review Application E154 of 2021) [2023] KEHC 23663 (KLR) (Judicial Review) (5 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23663 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review Application E154 of 2021

JM Chigiti, J

October 5, 2023

Between

Nation Media Group

Applicant

and

Media Complaints Commission

Respondent

and

Samuel Muigai

Interested Party

Judgment

1. The application before this Court is dated 15th November,2021 and it seeks the following orders;1. That an Order of certiorari do issue removing to the High Court for purposes of being quashed the decision of the Respondent dated 12th October 2021 communicated to parties on 12th October 2021 and in particular the following orders:a.That pursuant to Section 38(1) (f) of the Media Council Act 2013 the Respondent is directed to pay a fine of Kshs.300,000 where upon such a fine shall be a debt due to the Council and recoverable as such; being a sanction for violating the principle of journalistic accountability in contravention of clause 5 of the Code of Conduct.b.That pursuant to Section 38(1) (a) of the Media Council Act 2013 the Respondent is directed to publish an apology and correction bearing a proportionate prominence as the offending article being a sanction for violating clause 2(1) of the Code.78c.That pursuant to section 38(2) of the Media Council Act 2013 the Commission makes a supplementary or ancillary order in the following terms:i.That at the lapse of the fourteen (14) days period available to the Respondents to lodge an appeal against order 31, effective from the date of determination, and where no such appeal is lodged, the Council shall be at liberty to enforce the due debt.ii.That at the lapse of the fourteen (14) days period available to the Respondent to lodge an appeal against order 32 effective from the date of determination, and where no such appeal is lodged, the Council shall be at liberty to commence contempt proceedings against the Respondentsiii.That the parties are at liberty though not compelled to agree on suitable wording of the correction/ clarification to be published in the respondent's newspaper within 14 days after the expiry of the appeal periodiv.That each party to bear its own costs that an order of prohibition do issue prohibiting the Respondent from enforcing its decisions or instituting contempt proceedings based on the Respondent's decision made on 12th October 2021 in Complaint No 5 of 2018. (d)That each party to bear its own costs2. Thatan order of prohibition do issue prohibiting the Respondent from enforcing its decisions or instituting contempt proceedings based on the Respondent’s decision made on 12th October,2021 in Complaint No 5 of 2018. 3.Thatcosts of this Application be provided for.

2. The application is supported by the Statutory Statement dated 11th November,2021 and the Verifying Affidavit of Sekou Owino sworn on even date.

3. A brief background of the facts in this case is that on 8th February, 2018, the Applicant published in its Daily Nation Newspaper an article titled “Kibra women show that united, we can all be homeowners”. The Article is said have been a feature article focusing on women who lived in Kibra slums who through their hard work became homeowners in different parts of Nairobi.

4. Further that prior to the publication of the article complained of, the Respondent through Delfin Mugo, a journalist who wrote the article interviewed relevant people including officials of Razak Housing Cooperative Society namely Rose Odinga the chairlady and Nafisa Burhan the Treasurer.

5. The Journalist is also said to have also interviewed officials of National Housing Cooperative Union (NACHU) to confirm that indeed Razak Housing Cooperative Society was registered as a Union and that members of the society owned houses through the Society these officials were Mr. Francis Kamando the Chairman and Mr. Stanley Kamau the Financial Manager.

6. It is deposed that the article complained of was based on information gathered from the women of Kibra, which information was further confirmed by the officials of both Razak Housing Cooperative Society and National Housing Cooperative Union.

7. However, the interested party vide a letter dated 22nd February,2018 sought for the said article to be retracted which concern according to the deponent was considered and on 14th March,2018 a clarification published.

8. The deponent also avers that subsequent to the letter dated 22nd February,2018 Royal Housing Cooperative booked an advertisement space with the Applicant for publication on 23rd February,2018 and the Applicant published the advertisement as had been requested by Royal Housing Cooperative Society on the said date.

9. The Interested Party herein is said to have lodged a Complaint no. 5 of 2018 before the Complaint Commission alleging that the article complained of was misleading, inaccurate, and biased hence being in violation of the Code of Conduct. In the Complaint, the Interested Party sought publication of an apology, correction, clarification, and a follow up story.

10. In response, the Applicant filed its Reply to Complaint dated 29th March 2021, a witness statement dated 14th July 2021 and documents. A hearing was also conducted on 9th September 2021 and witnesses for both parties gave their testimonies. Thereafter parties were directed to file their written submissions and ruling was reserved for 12th October 2021. It is deponed that the Interested Party failed to file any submissions.

11. The Applicant contends that the Respondent’s decision was erroneous as it failed to take into account relevant considerations such as Article 34 of the Constitution 2010 as read with section 6 (1) (a) of the Media Council Act No 46 of 2013 that gives media the freedom to determine independently the editorial content of their broadcasts and publication also that the said decision was in violation of section 6 (1) (a) of the Media Council Act No 46 of 2013 for failure to promote and protect the freedom of the media.

12. The Respondent’s decision is also challenged on grounds that it failed to take into account that the article complained of was a feature article and not an investigative article and as such, different thresholds apply when it comes to verification of information before publication.

13. The Applicant’s case is that the Respondent failed to take into consideration that the Interested Party has no locus standi as Royal Housing Cooperative Society being a body corporate can institute a complaint in its own name pursuant to the provisions of Section 12 of the Cooperative Societies Act also that it did not consider that a clarification was published by the Applicant.

14. The Respondent is also faulted for failing to consider the Applicant’s submissions or even taking account that the Interested Party had failed to adduce sufficient evidence to show co-relation between members withdrawing from Royal Housing Cooperative Society and the publication of the article complained of.

15. The Respondent is also said to have failed to take into account that the Interested Party failed to give evidence to show a co-relation between members withdrawing from Royal Housing Co-operative Society and publication of the article complained of. Also, that it failed to take into relevant consideration that the article published did not make any reference to the Interested Party or Royal Housing Co-operative Society.

16. It is also the Applicant’s case that the Respondent erred when it took into consideration alleged names of members that left Royal Housing Co-operative Society following publication of the article complained of despite the fact that the allegation was not substantiated.

17. In response the Interested Party filed grounds of opposition dated 7th May,2022 and a Replying Affidavit dated 18th May,2022. The following grounds are raised in the grounds of opposition;1. That the entire motion and the grounds upon which it is founded are misconceived, frivolous, vexatious and an abuse of this Court’s process.2. That the Interested Party was properly seized with the Authority to File the Complaint dated 21st September 2018 on behalf of Royal Housing Sacco Society.3. That the Applicant is liable for breach of Code Conduct following the negligent publication made on the 8th day of February 2018 concerning LR 2358/10 and the Orders given by the Respondent against the Applicant are properly accounted for.4. That there is no explanation justifiable, plausible or otherwise discernable from the Application dated the 15th day of November 2021 to compel this Honourable Court to grant the orders sought are incapable of being granted.

18. In his Replying Affidavit the Interested Party contends that he is a member and the Chairman of Royal Housing Cooperative Society Limited.

19. Mr. Muigai depones that the Applicant in published story of 8th February, 2018 the Applicant purported that Razak Housing Cooperative Limited through NACHU had purchased a piece of Land in the gated community on behalf of its members and went ahead to even build houses thereon.

20. The management of Royal Housing Cooperative is said to have on 19th February, 2018 held a meeting where a resolution was passed that members would pursue a retraction and correction of the story that was published by the Applicant also that there was need to initiate court proceedings as NACHU was purporting to be the owner of the land known as LR 2358/10.

21. The Interested Party depones that in his capacity as the Chairman of the Royal Housing Cooperative Society Ltd, he wrote a letter to the Applicant on the 22nd February 2018 highlighting the inaccuracies of the Story Published on the 8th February 2018 regarding ownership of the Land known as LR 2358/10 after which he requested the Applicant to retract the story and correct the information contained therein to give a true reflection of the Status of ownership of the property.

22. On 23rd February,2018 he paid the requisite fee necessary on behalf of Royal Housing Cooperative Society Limited in order to facilitate for a notice to be advertised in the Daily Nation Newspaper informing members of the Royal Housing Cooperative Society Limited and the public in general that contrary to what had been earlier published, Royal Housing Cooperative Society Limited members remain in possession of most of the land in respect to LR 2358/10 along Kangundo Road.

23. The Applicant is said to have published a clarification after the Interested Party had already filed the complaint. The clarification is said to have been published in the furthest corner of the Daily Nation Newspaper on 14th March, 2018.

24. It is the Interested Party’s case that members of the Royal Housing Cooperative Society contributed a total sum of Kenya Shillings Sixty-nine Million forty-nine thousand eight hundred and forty-six in the year 2012 and that the same was deposited the NACHU Cooperative Bank Account who were to finance various projects on behalf of Royal Housing including the development of LR 2358/10.

25. The publication is said to have caused members of the Royal Housing Cooperative Society to immediately withdraw their savings from the Royal Housing Society Limited by demanding for a refund.

26. It is also the Interested Party’s case that had the Applicant conducted due diligence on the property and the development projects carried out thereon, they would have come to the revelation that Royal Housing Cooperative Limited was a member of NACHU owning 161 plots in Royal Estate.

27. Royal Housing Cooperative Limited is also said to be the ones responsible for the development of the Gated Community alluded to in the Article with most of the buildings bearing the Royal signage displayed including The Royal Life Church, The Royal Life Academy, The Royal Estate Phase 1 sign and The Royal Estate Gate.

28. The Applicant it is stated had a duty to publish a factual story in line with Section 2(8) of the Second Schedule of the Media Council Act that states that where it is recognized that an inaccurate or misleading story has been published, the same would be corrected promptly.

29. The Interested Party’s case is that guided by the provisions of the Media Council Act and the numerous evidence adduced of blatant violation of journalistic accountability, the complaint was properly heard by the respondent who correctly found the Applicant in contravention of the Code of Conduct.

30. The respondent is said to have acted within its powers given under Section 37(5) of the Media Council Act to issue any decision as it deems appropriate and give directions in connection with the complaint.

31. The Applicant in its submissions dated 24th January,2023 identifies five issues for determination and these are; Whether the Respondent erred in law and fact by finding that the article complained of was inaccurate, biased and misleading; Whether the Respondent erred in law and fact by failing to consider the right of the Applicant under Article 34 of the Constitution of Kenya; Whether the Respondent erred in law and in fact by failing to consider that the Interested Party did not have locus standi to lodge the Complaint on behalf of Royal Housing Cooperative Society in his personal capacity; Whether this Honourable Court has powers to grant the orders sought herein; and who should bear the costs of the Application.

32. The Applicant submits that the Respondent’s decision is wrong in law and fact. The Respondent is said to have not only failed to consider the evidence produced by the Applicant but also considered extraneous matters and gave unproportionate consideration to the Interested Party’s evidence thereby arriving at an unreasonable and unproportionate decision.

33. The Applicant submits that courts have also recognized the legal capacity of societies and their capacity to institute legal proceedings in their own name and in support of this argument the cases of Joseph Muthuri Ikunyua & 32 others v Co-operative Bank of Kenya Limited & 14 others [2018] eKLR and David Omwancha Manduku v Francis Gekonge Omindi [2020] eKLR are referred to.

34. It is the Applicant’s case that Section 42 of the Media Council Act provides for the right of appeal to the High Court where a party is aggrieved by the decision of the Respondent. Further that the Applicant has approached this Honourable Court in exercise of its right to appeal. The Applicant it is submitted urges this court in its capacity as an appellate court to re-evaluate and reconsider the evidence filed before the Respondent and be pleased to grant appropriate orders.

35. The Applicant’s submission is that this honourable court ought to be guided by the Court of Appeal decision in Gitobu Imanyara & 2 others v Attorney General [2016] eKLR, where the said Court stated that the first appellate Court has a duty to re-evaluate and reconsider evidence.

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

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

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

39. The Interested Party in his written submissions 24th February ,2023 reiterates that in his position as the chairman of Royal Housing Cooperative Society he had locus standi to institute a complaint at the Media Complaints Commission on behalf of Royal Housing Cooperative Society and to support this argument the case of Priscilla Jesang Koech v Rebecca Koech & 3 others [2018] eKLR was cited where the court emphasised on the importance of a party having locus standi.

40. The Interested Party also refers to Section 28 of the Cooperative Societies Act which provides for membership and powers of a management committee of the Cooperative Society. The Interested Party in the management meeting under Agenda 4(a) the management committee agreed to give the Interested party herein power to sue the Applicant herein for the adverse and malicious stories that was published against Royal Housing Cooperative Society. The resolution is said to have been signed by the chairman, secretary and treasurer of Royal Housing Cooperative Society. The case of James Ng’ang’a Kibaya & another v Attorney General & 3 others [2011] eKLR has been cited in support of this argument.

41. It is also his submission that due diligence before publishing the story would have greatly avoided the said publication and the subsequent proceedings. The Commission is said to have followed due procedure in arriving at its decision therefore the Applicant cannot move his Honourable Court for judicial review order quashing the Commission’s decision.

42. Also, that Judicial Review is about procedure that was followed in arriving at a decision and if the process is shown to have been fair and correct, as it has been shown by the Interested party, then the only recourse and/ or remedy to the Applicant herein would lie in an appeal as opposed to Judicial Review proceedings.

43. On costs the Interested Party submits that he has incurred huge costs in response to the proceedings herein by filing a Replying Affidavit in response to the substantive motion and written submissions and therefore it would be fair and just if this Honourable Court awards costs of the Application to the Interested party herein.

44. The Applicant is said to have violated Article 33 (3) of the Constitution of Kenya 2010 and as such cannot claim its rights under Article 34 of the Constitution of Kenya 2010.

Analysis and Determination 45. I have considered the Application filed before this court and the affidavit in support and also the Interested Party’s response. I have also considered the written submissions filed by the parties and I find that the only issue that arises for determination herein is whether the Ex parte Applicant has adduced enough grounds for the grant of the orders of certiorari and prohibition.

46. It is common knowledge that judicial review jurisdiction is supervisory by nature; it is the channel through which judicial supervision over administrative action is exerted; and, generally speaking, it is meant to cast doubt on any decision that is made in violation of the law. Lord Diplock’s classic dictum in Council of Civil Service Unions v Minister for the Civil Service (supra) provides a useful guide on what an unlawful decision entail. The learned judge spoke of these grounds as follows:“My Lords, I see no reason why simply because a decision-making power is derived from a common law and not a statutory source, it should for that reason only be immune from judicial review. Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call “illegality,” the second “irrationality” and the third “procedural impropriety.” That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of “proportionality” which is recognised in the administrative law of several of our fellow members of the European Economic Community; but to dispose of the instant case the three already well-established heads that I have mentioned will suffice.By “illegality” as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.By “irrationality” I mean what can by now be succinctly referred to as “Wednesbury’s unreasonableness” (Associated Provincial Picture Houses Ltd. v Wednesbury’s Corporation [1948] 1 K.B. 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the court's exercise of this role, resort I think is today no longer needed to Viscount Radcliffe's ingenious explanation in Edwards v Bairstow [1956] A.C. 14 of irrationality as a ground for a court's reversal of a decision by ascribing it to an inferred though unidentifiable mistake of law by the decision-maker. “Irrationality” by now can stand upon its own feet as an accepted ground on which a decision may be attacked by judicial review.I have described the third head as “procedural impropriety” rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. But the instant case is not concerned with the proceedings of an administrative tribunal at all.”

47. In our instant application the Applicant alleges that in reaching its decision the Respondent made an error of law and fact by finding that the article published by it was inaccurate, misleading and biased and that the Applicant had failed to observe journalistic accountability.

48. The Applicant’s case is that the Respondent in reaching its decision violated its right as provided under Article 34 of the Constitution which talks about freedom of the media. It is also its case that the Respondent failed to consider that the Article comprised of feature journalism and not investigative journalism. The Applicant also argues that the journalist who did the article conducted due diligence before publishing the same and therefore the Respondent erred in finding that due diligence was not conducted.

49. The Applicant also contests that the said article did not make reference to the Interested Party or Royal Housing Cooperative Society. The Applicant’s case is also that it is not true that the members of Royal Housing Cooperative Society started leaving the society after the publication but that the same began way before the impugned publication.

50. The Applicant in its submissions urges that it has approached this Honourable Court in exercise of its right to appeal and therefore it urges this Honourable, in its capacity as an appellate court to re-evaluate reconsider the evidence filed before the Respondent and be pleased to grant appropriate orders.

51. In response the Interested Party contends that the Applicant cannot allude to the violation of Article 34 of the Constitution yet it violated Article 33 (3) of the same Constitution. Also, that through a resolution made on 19th February,2018 the management committee agreed that he had the power to sue the Applicant and The Standard Group for the adverse and malicious stories they had published.

52. The Interested Party also questioned the Applicant’s allegation that the journalist had undertaken due diligence as had the same been undertaken the parties would not be where they are today.

53. My assessment of the applicant’s application is that it is more of an appeal against the Complaints Commission’s decision issuing sanctions against it than an application for this Honourable Court to invoke its judicial review jurisdiction and interrogate the process by which the respondent’s decision was arrived at.

54. The above argument can also be verified by paragraph 27 of the Applicant’s submissions where it is stated as follows;“Section 42 of the Media Council Act provides for the right of appeal to the High Court where a party is aggrieved by the decision of the Respondent. The Applicant has approached this Honourable Court in exercise of its right to appeal and therefore urge this Honourable, in its capacity as an appellate court to re-evaluate reconsider the evidence filed before the Respondent and be pleased to grant appropriate orders. We urge this Honourable Court to be guided by Court of Appeal decision in Gitobu Imanyara & 2 others v Attorney General [2016] eKLR, where the said Court stated that the first appellate Court has a duty to re-evaluate and reconsider evidence.”

55. As always, this court would, in appropriate cases, evaluate the Review Commission’s decision on the basis of all or any of the grounds for judicial review of illegality, irrationality and procedural impropriety (see Council of Civil Service Unions v Minister for the Civil Service (1985) A.C. 374,410).

56. But even when considering the decision of the Commission or any other tribunal for that matter, this honourable Court is not exercising its appellate jurisdiction which, ordinarily, would entitle the Court to consider the merits of the impugned decision and, where it is appropriate, substitute the decision with its own decision; judicial review would be concerned with the process by which the impugned decision was arrived at.

57. Notably the Supreme Court in the case of Edwin Harold Dayan Dande & 3 others v The Inspector General, National Police Service & 5 others Petition No 6 (E007) of 2022 (Consolidated with Petition Nos. 4 (E005) & 8 (E010) of 2022)(87)With utmost respect to the learned Judges of the Court of Appeal, we disagree with the above reasoning and find that the appellants had clothed their grievances as constitutional questions believing that their fundamental rights had been violated. Therefore, this required the superior courts to conduct a merit review of the questions before them and dismissal of their plea as one requiring no merit review was misguided. A court cannot issue judicial review orders under the Constitution if it limits itself to the traditional review known to common law and codified in Order 53 of the Civil Procedure Rules. The dual approach to judicial review does exist as we have stated above but that approach must be determined based on the pleadings and procedure adopted by parties at the inception of proceedings. Our decision in the Jirongo and Praxedes Saisi cases speaks succinctly to this issue. That is also why, the question below is pertinent to the present appeal

58. The Applicant alleges violation of its right as espoused under Article 34 of the Constitution. In response the Interested Party argues that the Applicant has not come to the court with clean hands as it also violated the Society’s right as provided under Article 33(3) of the Constitution.

59. I am guided by the case of Anarita Karimi Njeru v Republic (No1)- [1979] KLR 154 where the court stated as follows:“… if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.” (see also Meme v Republic & another [2004] 1 KLR 637).”

60. This court is not convinced that the Applicant has set out with a reasonable degree of precision that of which it complains or the manner in which they are alleged to be infringed.

61. Having also had due regard to the Applicant’s application, the affidavit in support and the grounds relied on, I am unable to fault the Respondent’s decision on any of the grounds espoused in the case of Council of Civil Service Unions v Minister for the Civil Service (1985) A.C. 374,410 and to be precise, there is no evidence that the Respondent did not appreciate correctly the law regulating its decision-making power or that it did not give effect to it with respect to the complaint against the Applicant.

62. There is also no evidence that the decision was irrational or unreasonable as in the “Wednesbury’s unreasonableness” (Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 K.B. 223). In other words, there is nothing to suggest that the Respondent’s decision was ‘so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it’.

63. Finally, there is again no evidence that the proceedings leading to the decision or that the decision itself was tainted with procedural impropriety. Looking at the affidavit sworn by Sekou Owino, the Head of Legal and Training at the Applicant on 11th November,2021 which affidavit for the record, was not controverted, there was fairness to all parties who participated in the proceedings.

64. When I consider the applicant’s application from this legal perspective I am not persuaded that it meets the requisite threshold for the grant of the judicial review orders sought. None of the grounds upon which it has sought review have any factual or legal basis.

OrdersThe application dated 15th November,2021 is hereby dismissed with costs to the Interested Party. It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 5TH DAY OF OCTOBER 2023. ................................J. CHIGITI (SC)JUDGE