[2022] KEHC 12018 (KLR)

Odera v Osale (Civil Appeal 43 of 2021) [2022] KEHC 12018 (KLR) (20 June 2022) (Judgment)

Neutral citation: [2022] KEHC 12018 (KLR)

Republic of Kenya

In the High Court at Kakamega

Civil Appeal 43 of 2021

PJO Otieno, J

June 20, 2022

Between

Vincent Aratu Odera

Appellant

and

Faith Otubula Osale

Respondent

(Being an appeal against the judgment delivered on August 31, 2021. )

Judgment

1. The judgment that aggrieved the appellant and provoked this appeal was delivered on the August 31, 2021. It is purport and effect was to dismiss the appellants claim for general damages and injunction against the respondent on the allegation that the respondent heard words the appellant viewed defamatory of him.

2. The foundation of the claim was that on an unspecified date the respondent published on her facebook face, Faith FehfehOsaleh Faith the following words:-“Pitia hapa inaitwa rubbish. Huyu hajui tulitoka kitambo idiot umetumwa na huyo saitani mdogo anaitwa Odera ama?"

3. It was additionally pleaded that the appellant was summoned to Butere Police Station to respond to a complaint by the respondent that she feared for her life as the appellant had threatened to kill her but having so reported to the police no steps were taken against him but that all the same he had suffered loss and damage because his person had been degraded as he was deemed a criminal.

4. In addition the respondent was taken to making posts on her facebook page aforesaid imputing that the appellant was an idiot and a devil which posts had demurred the plaintiffs character and reflected him a person of law morals and religious by bereft of integrity.

5. The claim in the plaint was resulted by the respondent who while admitting a stint of relationship with the appellant denied having published the offending words nor that she run the facebook page but admitted having made a report to the police station as a constitutional right and subsequently forgave the appellant after he showed remorse and sought forgiveness hence he was never charged in court. The report to the police was justified in the grounds that the report to police was the consequence of events which posed danger to the life of the respondent including a visit by the appellant to her work place and issuing threats through her colleagues.

6. That the appellant had suffered damages and loss and the claim for damages were denied in entirety it being asserted that the words complained about whether true or untrue were incapable of lowering the plaintiff’s reputation in the mind of right thinking members of society and put the appellant to strict proof thereof.

7. It was then reiterated that the short stint relationship was terminated by the respondent after she consulted her parents on its viability and was told that the same was untenable because the two belonged to the same clan and were by customs not allowed to marry. As a result of the breaking the appellant became violent and hostile to her and went on a spree of threat issue which compelled the respondent to make a report to the police. On the basis of such conduct the respondent sought from court an order of injunction to restrain the appellant from visiting her work and from intimidating her, harassing her and issuing threats to her.

8. The appellant responded to the counterclaim without a reply to defence and pleaded that it was the appellant who terminated the relationship on account of comprehensive differences, without the involvement of parent. He then denied being obsessed with the Respondent, never proposed marriage to her nor threatened her even on the date he visited her work place and prayed that the counterclaim be dismissed with costs.

9. At the hearing, only the plaintiff gave evidence while the defendant opting not to give evidence. The appeal was directed to be canvassed by way of written submissions pursuant to which direction the Appellant filed submissions dated May 9, 2022 on the May 24, 2022 while the respondent filed hers dated June 6, 2022 on June 15, 2022.

10. The memorandum of appeal as crafted set out five (5) grounds of appeal but a proper reading of the same reveals that grounds 1 – 4 actually sums to the question whether the case was proved to the required standard. That only leaves the fifth ground as a stand alone ground.

11. Accordingly, after perusal of record and submissions by both sides, I do discern the issues that isolate themselves from determination to be two namely:-i)Whether the case before the trial court was proved to the requisite standards and if, therefore its dismissal was erroneous?ii)Whether the failure to assess damages was an error.

12. In its rendition and conclusion of the judgment, the court said:-“From the above legal provisions, the law requires that section 78 A and 106 B of the Act are read conjunctively and complied with. The screenshots in this case are an electronic record and provides electronic digital evidence. Therefore, they ought to be produced with a certificate as provided by Section 106B of the Act and fulfils the requirements of authenticity and validity of the information and/or evidence contained in the said screenshots. The content of the certificate would aid and satisfy the court as to reliability of generation of the electronic record/evidence; the integrity of the process and the origin of the content. Therefore, although the requirement of the certificate is a procedural and technical matter, section 106 B (4) of the Act is mandatory and is about form and substance. Before the court can admit electronic records/evidence a certificate is mandatory to confirm source, process, custody and delivery of the said electronic record before admission so as to pre-empt manipulation of the record. (See Idris Abdi Abdullahi v Ahmed Bashane & 2 others [2018] eKLR).The plaintiff has failed to meet this requirement and can therefore not be said to have proved conclusively that the defendant is the known owner, holder and administrator of the Facebook page “faith rehfehosaleh faith” wherein the alleged defamatory statement was made. Having so found, it is my view and I so hold that the plaintiff has failed to prove all the ingredients of the tort of defamation on a balance of probabilities. It follows that his prayer for an injunction also fails thus his suit is dismissed with no order as to costs in light of the failure by the defendant to also prove her counterclaim. For the avoidance of doubt, the counter-claim is also dismissed with no orders as to costs. It is so ordered.”From that excerpt where is the error committed by the trial court?

13. In coming to the conclusion it did, the trial court did address itself to what publication qualify as defamatory and correctly held that it is not the assessment of the offended party not courts but the audience the publication is made to. The concerned words must be shown to have had the effect of injuring the reputation of the subject in the eyes and estimation of the right thinking members of the society. It is not enough that the subject of the publication considers herself insulted or abused.

14. Accordingly for a claimant to succeed in a claim for defamation, he must prove that the statement referred to him and not any other person, that the statement was published and was not accurate but false and that it was defamatory in that it was viewed by the audience to injure the plaintiff in his character and standing in society by reducing the esteem and repute with which reasonable members of the society held him1. 1Selina Patani v Dhiranji Patani [2019] eKLR

15. Here the only evidence was by the appellant with no attempt being made to call another person who could have read the publication to establish that his estimation of the appeal was lowered on account of the publication grounded, libel and that which attributes a criminal offence punishable by indictment is achievable per see, the law still is that parties and the court must be bound by the pleadings filed. The party is bound never to depart and give evidence in a matter not pleaded while the court is bound to consider only what has been pleaded unless a matter not pleaded is dealt with in a manner to show that parties did place it before the court and left same for court’s determination.

16. Here the plaint as filed did not plead that the matter was achievable per see. In fact not even particulars of the defamation nor was the meaning a reasonable person would assign to the words were set out.

17. More fundamentally, the appellant failed in his onus to prove that the publication was indeed by the respondent and that the subject was him and nobody else.

18. In effect, I find no justification having reevaluated and reexamined the record in full, to interfere with the conclusions made by the trial court.

19. The upshot is that the appeal lacks merits and is thus dismissed with costs.

DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 20TH DAY OF JUNE 2022. PATRICK JO OTIENOJUDGEIn the presence of:No appearance for the appellant.No appearance for the respondent.Court assistant: Kulubi.