[2022] KEHC 15308 (KLR)

Njoroge v Nation Media Group Limited & another (Civil Case 198 of 2017) [2022] KEHC 15308 (KLR) (Civ) (11 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15308 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Case 198 of 2017

JK Sergon, J

November 11, 2022

Between

Hon. John Njoroge

Plaintiff

and

Nation Media Group Limited

1st Defendant

Kipchumba Some

2nd Defendant

Judgment

1. The plaintiff herein filed a suit by way of the plaint dated 21st September, 2017 and sought for judgment against the defendants in the following manner:i.General damagesii.Exemplary damagesiii.Damagesin lieu of an apologyiv.An injunction restraining the defendants by themselves, their servants ,agents or otherwise howsoever from further publishing and/or causing to be published words defamatory to the plaintiff.v.Cost and interest of the suit.vi.Any other and or further relief that this Honourable Court may deem fit and just to grant.

2. The plaintiff pleaded in his plaint that on Thursday, July 27, 2017, the 1st defendant ran a story on the front of its Daily Nation newspaper with the headline "Shame: Grabbers tittle deed axed" and a picture of the plaintiff with the narration that the plaintiff, Kasarani Member of Parliament, had been allocated land belonging to two schools in Mwiki, Nairobi.

3. The plaintiff further pleaded in his plaint that the 2nd defendant then wrote a follow up article by the 1st defendant on page 2 paragraph 10 of its Daily Nation Newspaper aforementioned where it was quoted;“Current Kasarani MP John Njoroge has lost parcels of land that originally belonged to two unnamed primary and secondary schools in Mwiki, Nairobi. The Commission (National Land Commission) has ordered that the parcels be vested in the Treasury Principal Secretary in trust of the schools”

4. It was also pleaded by the plaintiff in his plaint that he is the one who started the recovery of public utility land for the primary and secondary schools in Mwiki that had been wrongfully and illegally assigned to private entities and that he is the one who filed a complaint with the National Land Commission, which led to the revocation of illegally assigned title deeds.

5. It was further pleaded by the plaintiff that the National Land Commission went so far as to urge that the plaintiff be publicly praised for focusing his efforts on the recovery of public utility land in his Constituency in the letter cited above, which also advised the 1st defendant to post a correction to its story.

6. The plaintiff avers that the article and words used therein read in their natural and ordinary meaning were understood to mean and/or create the impression that the plaintiff is a land grabber, thief, a unprincipled man, unprofessional and corrupt Member of Parliament engaged in unethical conduct, an untrustworthy person, a fraudulent and corrupt person who is under investigation by the National Land Commission.

7. The plaintiff further avers that he has suffered harm to his character and reputation as a result of the aforementioned defamatory statements and the 2nd defendant Daily Nation Newspaper's worldwide distribution, as well as being subjected to mockery, hatred, scandal, opium, and contempt in the eyes of his family, constituency, peers, and the general public.

8. It was pleaded by the plaintiff in his plaint that as a result of the defamatory publications, it has brought injury to his character, reputation and esteem, credence as a Christian, standing in society locally and internationally, loss of business and be shunned by voters within Kasarani Constituency.

9. The defendant entered appearance upon service of summons and filed its statement of defence on 13th April, 2018 to deny the plaintiff’s claim.

10. In their statement of defence, the defendants stated that insofar as the words are concerned, and in their ordinary meaning or otherwise consist of expressions of opinion, they were fair comments upon facts and were published as fair information on matters of public interest on issues concerning the rise in public land grabbing and irregular public land allocations in Kenya. They were made out of a sense of duty to the community, without any animosity toward the plaintiff, and in the honest belief that the information contained therein was true.

11. At the hearing of the suit, the plaintiff testified and called two (2) additional witnesses, while the defendants closed its case without summoning any witnesses.

12. The plaintiff who was PW1 adopted his signed witness dated 16th May 2019 and also produced the plaintiff’s list of documents dated 18th day of November 2020. It was his testimony that he was called by several people who read the said article and that he was told that he would not be elected because he is a land grabber.

13. The plaintiff testified that he was never contacted by the defendants to clarify the issues as it had been that the National Land Commission had written a letter dated 31st July 2017 informing the Nation Daily that I was a complainant and not a land grabber as commended by the National Land Commission but the defendants did not take any corrective measures.

14. It was the testimony of the plaintiff that the said article created the impression that he is a land grabber, corrupt Member of Parliament engaging in an unethical conduct which led to him being shunned by the voters in his Constituency two weeks to the general elections time, many withdrew from his campaign.

15. On cross-examination, the witness stated that he suffered loss of business due to the said publication as he was in the business of buying and selling land but he could not support the same with particulars of the alleged loss of business.

16. In re-examination, the witness stated that his ability to win the election was affected by the said publication.

17. Teresia Njeri Mwangi who was PW2 adopted her signed witness dated 16th May 2015 as her evidence in chief and stated that the plaintiff is a good friend and that she was in his campaign team for the Kasarani Parliamentary seat in the 2017 General elections.

18. In cross-examination, the witness stated that she was approached by various voters to clarify whether the publication was true but clarified to the voters that the plaintiff was not a corrupt person.

19. It was her testimony that she voted for the plaintiff because she was aware that he was not corrupt; in fact, he opposed land grabbers.

20. In re-examination, the witness stated that the words in the said publication portrayed the plaintiff as a corrupt person.

21. Johnstone Mugambi Kirima who was PW3 adopted his signed witness dated 21st September 2017 as her evidence in chief.

22. In cross-examination, it was his testimony that he was the chief campaigner of the plaintiff and due the said publication herein he moved out of his campaign team and did not vote for him during the 2017 General elections. That he found it difficult to support the plaintiff because the publication depicted him as a land grabber.

23. In re-examination, the witness stated that he did not vote for the plaintiff and also stopped campaigning for him.

24. At the close of the hearing, this court called upon the parties to file and exchange written submissions.

25. This court gave directions to have this suit be disposed of by written submissions. I have re-evaluated the arguments presented before this court. I have also considered the rival written submissions. The issues for determination that were put forward by both parties are as follows:i.Whether the plaintiff has made a case for defamation against the defendants; andii.Whether the plaintiff are entitled to the reliefs sought.

26. On the first issue, I borrow from the Black's Law Dictionary, 8th edition definition of the term ‘defamation’ as follows:“the act of harming the reputation of another by making a false statement to a third person.”

27. The ingredients of a defamatory claim were laid out by the Court of Appeal in the case of Raphael Lukale v Elizabeth Mayabi & another [2018] eKLR and are that: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.

28. In respect to the second and third ingredients which I wish to begin with, from my evaluation of the oral evidence tendered by and on behalf of the plaintiff, I established that the publications in question were made by the defendants and made reference to the plaintiff. In its pleadings, the defendants admitted to making the said publications and did not deny that the same related to the plaintiff herein.

29. I am therefore satisfied that the plaintiff has established the two (2) referenced ingredients on defamation.

30. This brings me to the first ingredient to do with whether the impugned publications are defamatory of the plaintiff.

31. At the heart of a defamatory statement lies its tendency to lower the reputation of the claimant in question. This was the position held by the Court of Appeal in the authority of S M W v Z W M [2015] eKLR and restated in the case of Joseph Njogu Kamunge [2016]eKLRthus:“A statement is defamatory of the person of whom it is published if it tends to lower him/her in the estimation of right thinking members of society generally or if it exposes him/her to public hatred, contempt or ridicule or if it causes him to be shunned or avoided.”

32. The legal position is that in order to determine whether a statement or publication is defamatory, one must seek to understand the meaning conveyed by the words in question to an ordinary/reasonable person.

33. On his part, the plaintiff under paragraph 16 of his plaint pleaded that the words complained of in the impugned publications were defamatory of him in the sense that they could be inferred in their ordinary and natural sense to imply that he is inter alia, a land grabber, a thief and hence a criminal, unprofessional and corrupt Member of parliament, untrustworthy person, fraudulent and corrupt person. The plaintiffs also pleaded and testified that as a result of the impugned publications, his reputation was lowered. This evidence was supported by that of PW3 who was an independent witness.

34. At the submissions stage, I note the argument by the defendants is that the said publication was not defamatory of the plaintiff as the content of the said article published consisted of expression of opinion which were fair comment and fair information upon facts which were matters of public interest.

35. I also note that the defendants on their part did not call any evidence to refute the claim by the plaintiff or raise the above issue at the preliminary stages of the suit and cannot therefore be heard to argue its case through their submissions.

36. That notwithstanding, I am satisfied that though the plaintiff did not set out verbatim the words published concerning them, they were able to set out the title of the said publications and describe in fair detail the nature of the publications made, as well as particularize their meaning in the ordinary and natural sense.

37. Upon considering the aforementioned particulars of defamation and innuendopleaded in the plaint and in the absence of any contrary evidence, I conclude that the words published would ordinary sense be taken to have the meaning pleaded in the plaint.

38. Concerning the reputation of the plaintiff, credible evidence was tendered to support the claim that following the impugned publication, his reputation was negatively affected.PW2 testified that while she voted for the plaintiff as she knew the truth, the majority of the voters believed the publication thus tarnishing the plaintiff’s reputation and diminishing his chances of being elected.

39. Further to the foregoing, I am alive to the existing legal principle that in instances of libel, the law presumes damage so long as a party has shown that the defamatory material was written or printed or in some permanent form. This was the position taken by the court in the case of Peter Maina Ndirangu v Nation Media Group Limited [2014] eKLR cited in the plaintiffs’ submissions, where the court stated that in an action of libel damage suffered need not be proved. Such position was restated in the case of Alnashir Visram v Standard Limited [2016] eKLR.

40. In the premises, I am satisfied that the plaintiff has shown that the publication in question is defamatory of them.

41. On the ingredient touching on malice, the court in the case of Phinehas Nyagah v Gitobu Imanyara [2013] eKLR was of the view that malice is not restricted to spite or ill will but may extend to reckless actions drawn from the publication in question.

42. It is the plaintiff’s submission that the defendant’s conduct was malicious in light of its disregarding the National Land Commission advise as contained in their letter dated 31st July 2017 in which the Commission clarified that indeed the plaintiff was a complainant and that he deserved public commendation for directing his efforts towards the recovery of public utility land in his constituency and that the Commission asked the defendants to correct the publication.

43. The plaintiff contends that the defendants did not before the publication clarify form the plaintiff what was the correct position and that the defendants did not care whether their publication was true or false and thus were malicious.

44. On the other hand, the defendants submitted that they did not act maliciously in the publication of the subject article as alleged in the plaint and proceeds to raise the defence of fair comment and thus the burden automatically shifts to plaintiff to prove that the defendant acted maliciously.

45. It is thus the defendant’s submission that the plaintiff has failed to prove that the defendants acted maliciously and in so submitting the defendants placed reliance on the provisions of Order 2 Rule 7 (3) of the Civil Procedure Rules ,2010 which provides as follows:Where in an action for libel or slander the plaintiff alleges that the defendant maliciously published the words or matters complained of, he need not in his plaint give particulars of the facts on which he relies in support of the allegation of malice; but if the defendant pleads that any of those words or matters are fair comment on a matter of public interest or were published upon a privileged occasion and the plaintiff intends to allege that the defendant was actuated by express malice, he shall file a reply giving particulars of the facts and matters from which the malice is to be inferred.

46. Upon considering the nature, frequency and circumstances of the impugned publications coupled with the impact namely the loss of business and elections too going by the evidence tendered, it is my view that the plaintiff has proved malice against the defendants. It is noteworthy that malice was not refuted by the defendant by way of evidence.

47. In respect to the ingredient to do with whether the publication was false, the court in the case of Joseph Njogu Kamunge [2016] eKLR reasoned that a defamatory statement is presumed to be false unless and until the same is shown to be true by a defendant.

48. In the present instance, I am satisfied that the plaintiff brought credible evidence to demonstrate the false nature of the impugned publications and which evidence was not countered by the defendants at the trial. Furthermore, while I note that the defendants pleaded the defence of fair comment on a matter of public interest, it did not tender any evidence at the trial to support such defence. To my mind therefore, the plaintiff has shown that the impugned publications were untrue.

49. In view of the foregoing, I am satisfied that the plaintiff has established a claim for defamation against the defendant on a balance of probabilities.

50. This brings me to the second issue touching on whether the plaintiff is entitled to the reliefs being sought.

51. On general damages, the plaintiff urged the court to be guided by the authority of Samuel Ndungu Mukunya v Nation Media Group Limited & another (2015) eKLR where the court awarded the plaintiff Kshs.20,000,000/= the case of Alnashir Visram v Standard Limited (2016) eKLR where the Court awarded the plaintiff Kshs.26,000,000/= and the case of Christopher Ndarathi Murungaru v John Githongo (2019) eKLR where the Court awarded the plaintiff Kshs.27,000,000/=

52. The plaintiff therefore submits that in consideration of the time factor ,the damages payable herein should be higher ,they pray for Kshs.35,000,000/= general damages.

53. I considered the professional standing of the plaintiff who going by his testimony and supporting evidence, is a public figure, former Member of Parliament, well known business man and a man high standing in society. I also took into account his evidence that he lost his Parliamentary seat and also the loss of business due to the impugned publication.

54. I also considered the case of Miguna Miguna v Standard Group Limited & 4 others [2017] eKLR in which the Court of Appeal upheld an award of Kshs.5,000,000/= made under this head.

55. The more recent case of Michael Kamau Mubea v Nation Media Group Limited & 2 others [2019] eKLR in which this court awarded a sum of Kshs.7,000,000/= on general damages to a plaintiff who was both a lawyer and a journalist.

56. I therefore find the award of Kshs.4,000,000/= to be reasonable for the plaintiff, in the circumstances.

57. For exemplary and punitive damages, the same are only awarded by the court to show disapproval of the defendant’s conduct when the court is satisfied that the publication was oppressive or arbitrary and propelled by the desire and as a way of drawing a financial benefit. The Court of Appeal in Board of Trustees, National Social Security Fund v Judy Wambui Muigai (2017) eKLR reiterated the position of the law when it held:“Such damages are in our view called for in situations of oppressive, arbitrary or unconstitutional actions by servants of the government or wrongful conduct which has been calculated by the defendant to make a profit for himself, where such award is expressly authorized by the statute……exemplary damages go beyond compensation and are meant to punish the defendant may well be ordered against a defendant who acts out of improper motive or where he is actuated by malice”

58. Exemplary damages, being aimed of punishing the defendants are also called punitive damages and therefore refer to one and the same remedy.

59. In this matter I do find that having had the opportunity to apologise but failed to do so. I do find that failure to apologise when demanded, justify an award of exemplary damages. I do award the plaintiff exemplary damages in the sum of Kshs 600,000/=.

60. I enter judgement in favour of the Plaintiff and against the Defendant and make the following awards:i.General damages for defamation Kshs.4,000,000/=ii.Exemplary damages Kshs. 600,000/=Total Kshs.4,600,000/=iii.Costs of the suit.iv.An injunction is hereby issued restraining the defendants whether by themselves, agents or servants from further publishing and/or causing to be published words defamatory to the plaintiff.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 11TH DAY OF NOVEMBER, 2022. ………………………J. K. SERGONJUDGEIn the presence of:…………………………… for the Plaintiff…………………………… for the 1st Defendant................................... for the 2nd Defendant