[2023] KEHC 23904 (KLR)

Odhiambo & another v Odhiambo (Civil Appeal E16 of 2022) [2023] KEHC 23904 (KLR) (13 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23904 (KLR)

Republic of Kenya

In the High Court at Kakamega

Civil Appeal E16 of 2022

PJO Otieno, J

October 13, 2023

Between

Martin Otieno Odhiambo

1st Appellant

Margaret Okendo Odhiambo

2nd Appellant

and

Vitalis Ofutho Odhiambo

Respondent

(Being an appeal from the Judgment & Decree of Hon. W. K. Cheruiyot (SRM) in Mumias PMCC No. E002 OF 2020)

Judgment

Background of The Appeal 1. The Appellants, by way of a Plaint dated 28th October, 2020, sued the Respondent at the Senior Principal Magistrate Court at Mumias for general and exemplary damages for defamation, costs of the suit and interest from the date of filing the suit till payment in full.

2. The pleaded claim was that on 7/9/2020 at about 8PM while relaxing with family members, the Respondent, without provocation, uttered words, of and concerning the Appellants, in dholuo language, words which when translated into English mean; -“You are a poor person and will remain poor forever, employed people are useless, your mother killed my father, you are a thief who steals in Nairobi and I will make sure you remain poor forever.”

3. The Appellant’s contention was that the words were malicious and calculated to disparage their character and that of their family and that they have further suffered psychological torture, odium and contempt because in their natural and ordinary meaning the words meant and were understood by right thinking member of the society to mean that the Appellants were a thief and a murderer respectively who had committed criminal offences punishable by imprisonment. As a consequence of the utterances, the Appellant asserted that they had suffered loss in their images and were entitled to damages.

4. Through a statement defence dated 22nd January, 2021, the Respondent denied the Appellant’s claim that he uttered the words complained about or that the Appellants had suffered any injury to merit an award of damages and strict proof was invited. It was equally asserted that the Plaint did not meet the tenets of defamation and could not attract the prayers made.

5. After hearing and recording evidence from the two claimants as well as the evidence from the Respondent and one additional witness and after appraising same, the trial court delivered its Judgment on 26th January, 2022, in which it made a finding that the Appellants had failed to prove their case on a balance of probability and the suit was thus dismissed with costs.

6. The decision aggrieved Appellants who then lodged a memorandum of appeal dated 25th February, 2022 by which they fault the trial court’s Judgment on three grounds that: -“a)That the trial learned magistrate erred in law and fact by failing to recognize that the words uttered by the respondent were actionable per se under common law as the words imputed the appellants had committed a criminal offence punishable by imprisonment.b)That the trial learned magistrate erred in law and fact when he failed to appreciate the fact that there was publication of the defamatory words to third parties who were the plaintiffs individually who heard the defamatory words uttered against the other.c)That the trial learned magistrate erred in law and fact when he made his judgment contrary to the weight thereof.”

7. The Appellants pray that the order and decree of the trial court be set aside and Judgment be entered against the Respondents as prayed in the Plaint.

8. The appeal was directed to be canvassed by way of written Submissions but only the Appellants have filed their submissions dated 12. 11. 2022. In the Submissions, it is contended that the words uttered by the Respondent imputed that the 1st Appellant was a thief while the 2nd Respondent was a murderer both of which are criminal offences punishable by imprisonment and which genre of libel “actionable per se”, without proof of damages, under common law. On the element of publication, they contend that the publication was made to each of them personally when the utterances were made. They further submit that the witnesses in the trial court were relatives in a polygamous set up and lived in the same compound and due to bad blood, the Respondent may have been triggered to utter the said words.

Issues, Analysis and Determination, 9. Appreciative of its mandate as a first appellate Court, the Court has considered the grounds of appeal and re-appraised the pleadings and proceedings of the lower court and the Submissions by the Appellant and discerns the issue for determination to be whether the words if uttered by the Respondent to the Plaintiffs, were defamatory in nature and therefore if the determination by the trial court was apt or erroneous.

10. The tort of defamation, whether slander or libel, is defined as the act of harming the reputation of another by making a false statement to a third person. See (Black’s Law Dictionary). A claimant seeking damages or indeed other remedies for the tort must thus prove that a false statement which refers to him and tends to caste him in a defamatory manner was published by the Defendant. See John Ward -v- Standard Ltd, [2006] eKLR.

11. In this appeal, therefore, the Court’s mandate is to establish if the words complained about were indeed uttered by the Respondent in a false manner, if the same referred to the Plaintiff and tended to lower his reputation in the eyes of the right-thinking members of the society.

12. The threshold issue is whether the words were uttered and published. The evidence by both Appellants was that both heard what the Respondent said about both of them. To both, 1st Appellant heard the Respondent to say that the 2nd Appellant had killed his father who was the husband to the 2nd appellant while the 2nd appellant heard the Respondent assert that the 1st Appellant was a useless poor man on account of being on paid employment whose mother had killed Respondent’s father. For the Respondent, in both statement of defence and evidence of DW1 and 2, there was vehement denial of ever uttering the said words. In fact, the evidence by both sides to the dispute paint the picture of a fractured polygamous set up where one household never talks to the other. It was thus a case that required evidence beyond that of the disputants to prove publication on a balance of probabilities. As it stands, the evidence from each side was by a son and the mother. The re-examination of the record by the Court falls short of satisfying the Court that the Respondent published to the two what he thought of them. The Court finds the evidence to even out and therefore the Publication was not adequately proved on a balance of probabilities.

13. Without publication by the Respondent, the rest of the issues whether the words were true or false and whether the same have had the effect of injuring the Claimant’s reputation become moot.

14. I would stop at this juncture but my examination of the proceedings and judgment show that the gravamen of the decision of the trial court was that it was incumbent upon the Appellants to prove that as a result of the defamatory words their characters were injured resulting in loss of reputation.

15. While that is the general command of the law on defamation, like all other general rules, there is an exception to it. The exception to the general rule that the words be proved to have tended to lower the reputation exists where the words complained about allege an indicatable offence against the claimant or where it disparages him in his office, profession, calling, trade or business held or carried on by him at the time of the publication. In such cases it is not necessary to allege or prove special damages, because, in such instances the tort is termed as actionable perse1. Had the words been proved to have been uttered and published by the Respondent, in so far as they alleged the criminal offense of murder against the 2nd Appellant, the cause would have been actionable per se. In Samson Odoyo v Ojwang’ K’Ombudo [1993] eKLR, the Court of Appeal had this to say on allegations imputing criminal conduct: -1Section 3, Defamation Act“The effect of the slander was that the respondent in the presence of the appellant’s family accused the appellant of planning to commit the criminal offence of murder. Such slander is actionable per se and no actual damage need be proved.”

16. It was an improper exposition of the law that there was an obligation to prove special damage. Had there been proof of uttering of the words by the Respondent, the Judgment would have invited interference by setting aside.

17. There having been no proof of uttering by the Respondent, the very cornerstone in every case for defamation, the Court finds that there is no merit in the appeal which is dismissed.

18. Having so dismissed the appeal, the Court takes cognizance of the fact that the parties are members of a family and that the Respondent has been awarded the costs by the trial court. The Court directs that each party shall bear own costs of this appeal.

DATED, SIGNED AND DELIVERED AT KAKAMEGA, THIS 13TH DAY OF OCTOBER 2023. PATRICK J. O. OTIENOJUDGEIn the presence of:No appearance for partiesCourt Assistant; Polycap Mukabwa