[2024] KEHC 12720 (KLR)

Nzibo v Nation Media Group Limited & another (Civil Suit 57 of 2020) [2024] KEHC 12720 (KLR) (Civ) (12 November 2024) (Judgment)

Neutral citation: [2024] KEHC 12720 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Suit 57 of 2020

JN Mulwa, J

November 12, 2024

Between

Amb. (Dr) Yusuf Abdulrahman Nzibo

Plaintiff

and

Nation Media Group Limited

1st Defendant

Cecil Odongo

2nd Defendant

Judgment

1. By a Plaint dated 16th April 2020, the Plaintiff sued the Defendants for alleged defamation, libel and slander and sought judgment against them jointly and severally for:i.Damages: -a.General damages for slander, defamation and libel.b.Compensatory damages.c.Aggravated and exemplary damages for libel.i.A declaration that the Plaintiff is entitled to a retraction of the defamatory words and a suitably worded apology published in a prominent manner in the newspapers.ii.A permanent injunction to refrain the Defendants, their servants, agents or otherwise from further writing, printing, airing and/or publishing or causing to be printed, published or distributed, in any manner whatsoever the aforementioned publications containing the words referred to herein or any similar words defamatory to the Plaintiffs.iii.Deletion and/or removal of all posts, publications of the offending articles that are still published in the Defendants’ websites, Facebook, YouTube and Twitter on walls and an unconditional admission of liability for slander.iv.Costs of this suit.v.Interest on (1) (a), (b) and (c) above at court rates.

2. The Plaintiff states that he has held several notable positions, including Chairperson of the Supreme Council of Kenya Muslims (SUPKEM), former Ambassador to the Netherlands, Czech and Slovak Republics, the United States, Mexico, Republic of Colombia, the Kingdom of Saudi Arabia, Kuwait, Bahrain, Yemen, and Iraq. Additionally, he is a former Commissioner of the Independent Electoral and Boundaries Commission (IEBC), former Deputy Managing Director of the Industrial Development Bank Limited, and former Commissioner General of the Kenya Revenue Authority. Further, he is a recipient of the State commendations Order of the Grand Warrior and Moran of the Burning Spear, and works in Nairobi and elsewhere within and outside the Republic of Kenya.

3. The Plaintiff avers that on 18th and 19th November 2019, the Defendants maliciously and without any justifiable cause, published and distributed or caused to be circulated, libelous articles through various platforms namely, the Daily Nation Newspaper Website, the Daily Nation Breaking News Twitter account, and the Taifa Leo Newspaper. The Plaintiff states that the article in the Defendants’ website read: “Supkem Chairman Yusuf Nzibo Ousted Over Graft Claims.”; the twitter account post read: “SUpkem Chairman Yusuf Nzibo Ousted From Office On Allegations Of Corruption; Vice Chairman Hassan Ole Naado Appointed In Acting Capacity.”; and the article in the Taifa Leo Newspaper stated: “Nzibo Avuliwa Uenyekiti Supkem, Wa Afurushwa Ofisini...yatokana Na Utawala Mbaya, Ufisadi Na Kushindwa Kuwajibikia Majukumu Yake.”

4. The Plaintiff asserts that the words published by the Defendants were not only false and malicious but also defamatory. He claims that, in their plain and ordinary meaning, the statements would be understood by reasonable members of society and the international community, particularly the Muslim community, where he is highly regarded, to imply that he is:a.Corrupt, greedy, avaricious in nature siphoning money to satisfy his personal greed.b.Immoral, unethical and unscrupulous person and therefore, incapable of holding any public office.c.A dishonest person who could not be relied upon or trusted.d.Of low moral standing and lacked integrity having committed a criminal offense of (corruption).e.A thief, scoundrel, glutton and a complete social misfit who should be shunned and avoided by all right-thinking members of the society and international community.

5. The Plaintiff further claims that the articles were factually inaccurate, negligently written, actuated by malice, and intended to damage his reputation, self-esteem, and standing in society as a distinguished diplomat and leader both in Kenya and internationally. As a result, the Plaintiff asserts that he has suffered public ridicule, professional harm, significant injury to his dignity and self-confidence, as well as emotional distress. Moreover, he avers that despite demands for an apology and a notice of legal action, the Defendants have refused to retract the defamatory statements or articles.

6. In their Defence dated 4th September 2020, the Defendants admitted that the 1st Defendant published the statements referenced by the Plaintiff on the three platforms but denied that these statements were made maliciously, without justifiable cause, or that they were false or defamatory. They argued that the publications were simply reports of public meetings held by a public body addressing matters of public interest, including the Plaintiff’s removal as National Chairman of the Supreme Council of Kenya Muslims during a meeting on 17th November 2019, due to allegations of poor governance and other related concerns, as well as broader governance issues in religious and public institutions. The Defendants argued that the publications were made under qualified privilege, without malice, and were based on a genuine belief in their truth as fair information on matters of public interest. They further denied that the publications carried the meanings attributed to them by the Plaintiff or exposed him to public ridicule, shame, contempt, or abhorrence. Additionally, the Defendants rejected the claim that the Plaintiff suffered general professional loss or serious injury to his dignity and self-confidence.

Plaintiffs Case and Evidence 7. PW1, Amb. (Dr) Yusuf Abdulrahman Nzibo, the Plaintiff herein, adopted his witness statement dated 16th April 2020 as his evidence-in-chief and produced the lists and bundles of documents filed on the same date and on 28th February 2022. He stated that he served as the Chairperson of the Supreme Council of Kenya Muslims (SUPKEM). He averred that on 18th November 2019, he received calls from friends and family informing him that the Defendants had posted defamatory publications about him on their Daily Nation Website and Daily Nation Breaking News Twitter account. The defamatory publication also appeared in the Taifa Leo newspaper on 19th November 2019. He was shocked that the Defendants published such defamatory content, even after seeking clarification from him. The Plaintiff asserted that as a result of the malicious publications in the Defendant’s newspaper and online platform, his reputation and self-esteem were severely damaged, discrediting him in the eyes of right-minded members of society and the international community. This caused him to be shunned and exposed to hatred, contempt, and ridicule.

8. The articles by the Defendants were sensationally published for wider circulation, reaching over 38 million users globally. The intent was to cause the gravest harm, loss, and damage to his reputation, without reason or justification, out of malevolence and spite. These baseless defamatory publications were so shocking that even SUPKEM’s Secretary, Amb. (Dr.) Mohammed A. Mahat wrote a WhatsApp message to the members of the National Executive Council (NEC) of SUPKEM and copied to PW1, expressing disbelief in the corruption allegations made against him.

9. The Plaintiff stated that as a distinguished diplomat and leader in high offices of the Republic of Kenya, his name has been tarnished nationally and internationally due to these unsubstantiated publications yet he has held various positions without any record of corruption. He averred that the defamatory content continues to subject him to public ridicule, shame, contempt, and disdain. Despite this, the Defendants continue to display the defamatory articles online, escalating the injury to his lifelong career, image, and standing in society, which he has tirelessly worked on for over fifty years. PW1 further testified that in the three years since these publications, his life has been turned upside down. He has applied for jobs but has been unsuccessful, and he has been ostracized by the Muslim community due to the corruption allegations. His life has been a nightmare, and his family has also been taunted.

10. During cross-examination, PW1 stated that he applied for a job at the EACC and was shortlisted. Although success was not guaranteed, the public is invited to raise any complaints or comments about applicants. He acknowledged that although he did not reproduce the full articles in the Plaint, he provided the links to them. He also confirmed that during a SUPKEM meeting, issues regarding his leadership were raised, and it was resolved that he be suspended pending an AGM. Additionally, he acknowledged that SUPKEM matters are of public interest. On re-examination, he clarified that he was relieved of his position as the National Chairperson of SUPKEM pending the AGM, and the proceedings of that meeting were documented in minutes produced in evidence before the court.

11. PW2, Mr. Abdalla Hemed Mwaruwa, also adopted his witness statement dated 28th May 2020 as his evidence-in-chief and produced a list of documents filed on the same date. He testified that he is a retired former CEO of the Kenya Ports Authority and has known the Plaintiff for over 54 years. They attended high school together from 1966 to 1969 and later worked together at the Kenya Revenue Authority from 1996 to 1998. He averred that on 18th November 2019, he received calls from friends and family informing him that the Nation newspaper had posted defamatory publications about the Plaintiff. He immediately contacted the Plaintiff, who confirmed that his phone had been inundated with calls from concerned friends and family members, both nationally and internationally, shocked by the false allegations. On 19th November 2019, PW2 was further shocked when he read the same defamatory content in the Taifa Leo newspaper. The articles claimed that the Plaintiff had been ousted as SUPKEM chairman due to corruption allegations, which surprised him because he knew the Plaintiff’s integrity to be of the highest order and that he was incapable of such acts.

12. PW2 testified that the Plaintiff’s leadership and integrity, both nationally and internationally, were beyond reproach. He stated that he holds the Plaintiff in high esteem, having served in senior positions such as at the Industrial Development Bank (IDB) and Kenya Revenue Authority (KRA), as well as ambassadorial roles in the Hague, Washington, D.C., and Saudi Arabia. He could not reconcile these allegations with the Plaintiff he knew, as his long career had been free of any corruption. PW2 expressed his dismay at how, after years of safeguarding his reputation, someone could tarnish the Plaintiff’s character and integrity in such a baseless and scandalous manner. He supported the Plaintiff’s decision to sue the individuals responsible for spreading such defamatory claims in order to clear his name.

13. During cross-examination, PW2 reiterated that he was shocked upon reading the article. He defined corruption as any unlawful or improper act, including abuse of office or leadership. He confirmed that, while he is not a member of SUPKEM, he was aware of the SUPKEM National Executive Committee meeting of 17th November 2019. He asserted that he read the articles but maintained that they did not change his relationship with the Plaintiff because they were untruthful. Additionally, he stated that suspending an officer without cause does not constitute abuse of office. On re-examination, PW2 clarified that based on his long friendship with the Plaintiff, he did not believe the corruption allegations and disagreed with the article's contents.

Defence Case and Evidence 14. DW1, Sekou Owino, the 1st Defendant’s Head of Legal Department, adopted his witness statement dated 14th April 2021 as his evidence-in-chief and produced the Defendant’s list of documents dated 23rd August 2021. He testified that it was public knowledge that the Plaintiff was SUPKEM’s Chairman, but on 19th November 2019, he was suspended by the National Executive Committee pursuant to Article 10 Section (f) of SUPKEM’s Constitution. He stated that the Plaintiff was relieved of his duties due to among other reasons poor leadership, conflict of interest, high-handedness, corruption and mismanagement of his office. According to DW1 therefore, the publications were fair and accurate reports of SUPKEM’s decision and were made in the public interest regarding governance in religious and public institutions. DW1 further argued that the Plaintiff’s interpretation of the articles was unfounded. He stated that the information published was a true reflection of the discussions from the SUPKEM meeting on 17th November 2019, and there was no malice intended to tarnish the Plaintiff’s reputation. Moreover, he asserted that the publications were made in exercise of the right of free speech and expression.

15. During cross-examination, DW1 testified that his duties at Nation Media does not involve collecting and collating data as that is the responsibility of reporters and editors. He admitted that no Nation Media staff were present at the SUPKEM National Executive Committee meeting on 17th November 2019 and that the articles were based on information and minutes obtained from a SUPKEM insider. DW1 acknowledged that while the article on the Daily Nation website implied corruption as a reason for the Plaintiff's suspension, the word "corruption" was not explicitly used. Further, DW1 averred that the minutes alluded to issues with the Plaintiff's leadership, integrity and management, leading Nation Media to interpret the suspension as related to corruption. He averred the Plaintiff had been given an opportunity to respond to these allegations, and that the publications were based on the minutes. DW1 acknowledged that minutes become official documents upon approval, which can be done manually or electronically. He admitted that the SUPKEM minutes were dated 19th November 2019 but the articles were published on 18th November 2019, and the newspaper was dated 19th November 2019, meaning the Newspaper had been printed the night before.

16. DW1 maintained that the Defendants relied on the SUPKEM minutes that were provided by the Secretary General, Amb. Mahat. He admitted that the Plaintiff’s ouster was due to his leadership style and not missing money or corruption. He also confirmed that the authors of the minutes did not blame the Plaintiff for corruption and opined that the signatories to the minutes interpreted the allegations differently regarding corruption. Additionally, he admitted there were responses from readers of the online publications but was not aware of the extent of their current digital viewership or worldwide coverage

17. In re-examination, DW1 clarified that the term “corruption” is not limited to economic crimes and reiterated that the publication was entirely based on the SUPKEM minutes

Analysis and Determination 18. The court has carefully considered the pleadings, the evidence adduced by the parties and their respective written submissions as well as authorities cited. The following are the two broad issues that fall for determination:a.Whether the Plaintiff has made out a case for defamation against the Defendants; andb.Whether the defence of qualified privilege is available to the defendants.c.Whether the Plaintiff is entitled to an award of damages, and if so, the quantum.

19. According to Black’s Law Dictionary, 9th Edition at page 479 defamation is defined as:“The act of harming the reputation of another by making a false statement to a third person.”

20. The law of defamation is concerned with the protection of a person’s reputation. Patrick O'Callaghan in the Common Law Series: The Law of Tort at paragraph 25. 1 stated that:“The law of defamation, or, more accurately, the law of libel and slander, is concerned with the protection of reputation: 'As a general rule, English law gives effect to the ninth commandment that a man shall not speak evil falsely of his neighbour. It supplies a temporal sanction …’ Defamation protects a person's reputation that is the estimation in which he is held by others; it does not protect a person's opinion of himself nor his character. 'The law recognizes in every man a right to have the estimation in which he stands in the opinion of others unaffected by false statements to his discredit' and it affords redress against those who speak such defamatory falsehoods…”

21. The Court of Appeal in the case of Wycliffe A. Swanya v Toyota East Africa Ltd & another [2009] eKLR stated that in a suit founded on defamation the plaintiff must prove the following elements: -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.

22. In the instant case, it is undisputed that the 1st Defendant published the articles in question on 18th and 19th November 2019. It is also uncontested that the articles specifically mentioned the Plaintiff by name and referenced his position as the National Chairperson of SUPKEM and his past role as a diplomat. The primary issue to determine, therefore, is whether these articles were defamatory toward the Plaintiff.

23. In S M W v Z W M [2015] eKLR, the Court of Appeal succinctly stated: -“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.”

24. In Halsbury’s Laws of England 4th Edition Vol. 28 at page 23 the authors opined:“In deciding whether or not a statement is defamatory, the court must first consider what meaning the words would convey to the ordinary man. Having determined the meaning, the test is whether, under the circumstances in which the words were published, a reasonable man to whom the publication was made would be likely to understand them in a defamatory sense.”

25. Further, Kuloba J. (as he then was) in J. Kudwoli & Anor v Eureka Educational & Training Consultants & 2 others [1993] eKLR stated that a reasonable man in the context of defamation cases is simply a fair–minded person with ordinary intelligence.

26. Based on the aforementioned authorities, can it be concluded that the publications tarnished the Plaintiff’s reputation in the eyes of reasonable members of society? Upon thoroughly reviewing the impugned articles presented in court by the Plaintiff, the court finds that a reasonable reader would interpret them to imply that the Plaintiff was compelled to resign from his position as the National Chairperson of SUPKEM due to poor leadership, corruption, and the mismanagement of Hajj funds. Additionally, the Plaintiff called an independent witness, PW2, Mr. Abdalla Hemed Mwaruwa, who testified that, as a reasonable person, he believed the Plaintiff’s character and integrity had been significantly harmed by the publication. PW2 recounted that on 18th November 2019, he received surprising calls from friends and family familiar with the Plaintiff, informing him that the Nation newspaper had published defamatory statements about the Plaintiff, whom they all regarded as a man of integrity. PW2 had a similar reaction when he read comparable content in the Taifa Leo newspaper on 19th November 2019, finding it difficult to reconcile the allegations with the Plaintiff’s long, distinguished career, free of corruption.

27. For the foregoing, the court is satisfied that the publications made on 18th and 19th November 2019 were defamatory to the Plaintiff's reputation as a long-serving diplomat and National Chairperson of SUPKEM at the time.

Whether the defence of qualified privilege is available to the Defendants 28. The Black’s Law Dictionary 10th Edition defines the word ‘privilege’ as follows: -“a special legal right, exemption or immunity granted to a person or class of persons; an exception to a duty.a privilege grants someone the legal freedom to or not to do a given act. It immunizes the conduct that, under ordinary circumstances, would subject the actor to liability.”

29. The Dictionary further defines the term ‘qualified privilege’ as follows: -“a privilege that immunizes an actor from suits only when the privilege is properly exercised in the performance of legal or moral duty.”

30. Section 7 (1) and (2) of the Defamation Act provides as follows regarding the qualified privilege of newspapers.1. Subject to the provisions of this section, the publication in a newspaper of any such report or other matter as is mentioned in the Schedule to this Act shall be privileged unless such publication is proved to be made with malice.

2. In an action for libel in respect of the publication of any such report or matter as is mentioned in Part II of the Schedule to this Act, the provisions of this section shall not be a defence if it is proved that the defendant has been requested by the plaintiff to publish, in the newspaper in which the original publication was made, a reasonable letter or statement by way of explanation or contradiction, and has refused or neglected to do so, or has done so in a manner not adequate or not reasonable having regard to all the circumstances.”

31. In the instance case, it is common ground that the publications by the Defendants fall under Part II Rule 5 (a) of the Schedule to the Defamation Act as it relates to a report of the findings or decisions of:“(a)an association formed in Kenya for the purpose of promoting or encouraging the exercise of or interest in any art, science, religion or learning, and empowered by its constitution to exercise control over or adjudication upon matters of interest or concern to such association or the actions or conduct of any persons subject to such control or adjudication:”

32. The question that arises therefore is whether the publications were actuated by malice? The Court of Appeal in Raphael Lukale v Elizabeth Mayabi & Another [2018] eKLR stated that: -“Malice can be inferred from a deliberate or reckless ignoring of facts. Evidence of malice may be found in the publication itself if the language used is utterly beyond or disproportionate to the facts. Malice may also be inferred from the relations between the parties before or after the publication or in the conduct of the defendant in the course of the proceedings. See Godwin Wachira v Okoth (1977) KLR 24 and J P Machira v. Wangethi Mwangi, Civil Appeal No. 179 of 1997. ” [my emphasis]

33. In Phinehas Nyaga v Gitobu Imanyara [2013] eKLR, Odunga J. (as he then was) stated as follows: -“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.”

34. DW1, Sekou Owino, confirmed that no Nation Media staff attended the SUPKEM National Executive Committee meeting on 17th November 2019. Furthermore, DW1 acknowledged that the publications were based on information and minutes obtained from a SUPKEM insider. Although DW1 asserted that the minutes relied on were dated 19th November 2019, it is evident that all the disputed publications were made before that date. This indicates that the Defendant relied on unverified information when reporting the decision of SUPKEM's National Executive Committee, using language that was excessive and disproportionate to the facts.

35. Additionally, as the Plaintiff rightly submitted, the minutes dated 19th November 2019 did not explicitly mention the word "corruption" in reference to the Plaintiff’s leadership at SUPKEM. Yet, the contested publications cited corruption as one of the reasons for the Plaintiff's removal. The Defendants have also failed to show whether they made any efforts to verify the NEC's actual reasons for its decision before publishing the articles

36. In the court's view, it is clear that the Defendants' intention was to sensationalize the articles or spice them up without first verifying the accurate facts, most likely with the intention of making the publications more appealing to the public or increasing their circulation as submitted by the Plaintiff. Alternatively, it may have been a case where the Defendants, despite knowing the truth, especially after seeking clarification from the Plaintiff, recklessly disregarded it in a deliberate attempt to subject the Plaintiff to hatred, contempt, or ridicule among right-thinking members of society. Consequently, the court finds that the Defendants' publications were malicious.

37. Ultimately, the court holds that the Plaintiff has proved the tort of defamation against the Defendants to the required standard which is on a balance of probabilities.

Whether the Plaintiff is entitled to an award of damages and if so, the quantum. 38. It is well settled that an award of damages is a matter of judicial discretion. In C A M v Royal Media Services Limited [2013] eKLR, the court of Appeal stated that:“No case is like the other. In the exercise of discretion to award damages for defamation, the court has wide latitude. The factors for consideration in the exercise of that discretion as enumerated in many decisions including the guidelines in Jones v Pollard (1997) EMLR 233-243 include objective features of the libel itself, such as its gravity, its province, the circulation of the medium in which it is published and any repetition; subjective effect on the Plaintiff’s feelings not only from the prominence itself but from the Defendant’s conduct thereafter both up to and including the trial itself; matters tending to mitigate damages for example, publication of an apology; matters tending to reduce damages; vindication of the Plaintiff’s reputation past and future.”

39. In Joseph Njogu Kamunge v Charles Muriuki Gachari [2016] eKLR, Mativo J. cited the case of John v MG Ltd (1996) 1 ALL E.R. where the English Court of Appeal 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...Exemplary damages on the other hand had gone beyond compensation and are meant to “punish” the defendant. 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.”

40. In the instant case, the Plaintiff seeks Kshs. 45,000,000/- for general damages, Kshs. 25,000,000/- for aggravated damages and Kshs. 10,000,000/- for punitive damages. On the other hand, the Defendants proposed a paltry Kshs, 200,000/- as the total damages to be awarded to the Plaintiff if at all.

41. In Musikari Kombo v Royal Media Services Limited [2018] eKLR, the Court of Appeal upheld an award of Kshs. 5,000,000/- in general damages and Kshs. 1,000,000/- in aggravated damages. Similarly, in Githongo v Murungaru (Civil Appeal 404 of 2019) [2022] KECA 821 (KLR) (19 May 2022), the Court of Appeal awarded Kshs. 7,000,000/- in general damages, Kshs. 2,000,000/- in aggravated damages, and Kshs. 1,000,000/- in punitive damages.

42. In the case of Samuel Ndung’u Mukunya v. Nation Media Group Limited & Another [2015] eKLR the court awarded to the Plaintiff then a Judge of the High Court Kshs. 3,500,000/= aggravated damages and Kshs. 15,000,000/= general damages. Based on the above precedents, the court is of the view that the Plaintiff would be adequately compensated in the sum of Kshs. 11,000,000/- in general damages as tabulated at paragraph 45.

43. The plaintiff also seeks a permanent injunction to restrain the Defendants from further publishing, or causing to be published, any articles containing the defamatory words in question or any similar statements.

44. However, the court notes that the alleged defamatory statements were published nearly five years ago, and it is unlikely that the defamation will be repeated. Furthermore, granting such an injunction would unjustifiably infringe on the Defendants’ constitutional right to freedom of expression. Therefore, the request for a permanent injunction is denied. However, an order shall issue for deletion of all posts, publications of the offending articles in the 1st defendants websites and social media platforms.

Disposition 45. Judgment is entered for the Plaintiff against the 1st Defendant as follows:a.Liability 100% against the 1st defendant.b.General damages Kshs. 8,000,000/-c.Aggravated damages Kshs. 2,000,000/-d.Exemplary damages Kshs. 1,000,000/-Total Kshs. 11,000,000/-The above amount shall attract interest at court rates from the date of this judgment until full settlement.e.The 1st defendant is directed and ordered to delete and or remove all posts and or publications of the offending articles the defendants websites, YouTube and all social media platformsf.Costs of the suit shall be borne by Nation Media Group Limited the 1st defendant to the plaintiff.

DELIVERED DATED AND SIGNED AT NAIROBI THIS 12TH DAY OF NOVEMBER 2024. JANET MULWAJUDGE