[2022] KEHC 16407 (KLR)

Oloo v Headlink Publishers Limited (Civil Suit 306 of 2015) [2022] KEHC 16407 (KLR) (Civ) (16 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16407 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Suit 306 of 2015

JK Sergon, J

December 16, 2022

Between

George Onyango Oloo

Plaintiff

and

Headlink Publishers Limited

Defendant

Judgment

1)George Onyango Oloo, the plaintiff herein has sued the defendant herein via a plaint filed on 18th May, 2012 and is seeking the following reliefs:i.An apology and Retraction in terms to be agreed upon by the Plaintiff.ii.A permanent Prohibitory Injunction to restrain the Defendant whether by itself, its servants, agents and/or employees from re-publishing the articles complained of, or any other defamatory publications, malicious misstatements and/or injurious falsehoods against the Plaintiff.iii.General damages for Defamation in favour of the Plaintiff.iv.General Damages for Injurious Falsehoods and/or Malicious Misstatementsv.Damages on the footing of aggravated and/or exemplary damages in favour of the plaintiff.vi.Costs of this suit.vii.Interest on (c), (d) and (e) above.viii.Any further relief the Court deems fit to grant.

2)The plaintiff’s claim is that in November, 2014 the defendant herein published and/or caused to be published in its 10th to 16th, 2014 edition of Weekly Citizen, under the title ‘TNA Secretary general’s unknown side laid bare’. The publication that the plaintiff claim is defamatory to him reproduced herein below:“…TNA secretary general Onyango Oloo is a man under sige. It is now alledged that Onyango has abandoned his family in Manyatta estate in Kisumu and moved in with a widow called Deborah in Kajulu, who is wife of the late councilor Sebo Odhiambo…Onyango is also accused of having milked Jane, the wife of the former senior politician in Kisumu, Angai Abongo. Onyango allegedly conned Jane millions of shillings and used the money to build a house in Syokimau for his wife Carren whom he had dumped while he was on a long sojourn preying on gullible widows.Onyango who is the chairman of the Lake Basin Development Authority is also under pressure from TNA loyalists who are keen to see him kicked out of the seat. Those scheming to kick him out argue he has no value. Politicians from Jubilee stronghold of Central and Rift Valley say he comes from CORD zone and that the party should replace him with loyalists from either Rift Valley or Central regions.His problems began when he secretly pushed for nominations of MCAs and Senators without proper consultations and throwing the party’s constitution out of the window.Initially he was believed to be in good books with part chairman Johnson Sakajja but the two have since fallen out due to political interests.According to sources well versed with TNA power games, Onyango had been promised nominations to either Parliament or Senate but instead Sakajja landed the nomination something that he has never forgiven Sakajja for. He was latter promised appointment to the Cabinet to represent the Luo community but president Uhuru appointed Rachel Omamo, daughter of former Cabinet Minister Odongo Omamo. It has been whispered that Uhuru feared Oloo would not be approved by Parliament’s vetting committee as he is having a pending criminal case”

3)According to the plaintiff, the above words used in the impugned publication in their ordinary meaning and interpretation were understood by the right thinking members of the public and by means of insinuation and innuendo, to mean that:i.That the plaintiff is a philanderer and is an irresponsible man who has abandoned his family.ii.That the plaintiff is an inept, incompetent, unskilled and ineffectual office holder.iii.That the plaintiff is unfit to hold aa national office.iv.That the plaintiff is an unscrupulous fellow who is a thief and cons money from individuals.v.That the plaintiff is corrupted and fraudulent in his dealings and has no respect for the rule of law.vi.That the plaintiff can only hold office solely on the basis of a reward by the National Alliance.

4)His further argument is that the said words were maliciously published with an intent to discredit the plaintiff before the right thinking members of the general public. The particulars of malice are as particularized under paragraph 7 of the plaint to include;

5)Prior to the publication subject hereof, the Defendant never approached the Plaintiff with a view to obtaining and/or inquiring the correct factual position respecting the allegations of philandering, abandoning his family, stealing money, criminal liability and corruption as alleged.

6)The Defendant never sought to discuss with the Plaintiff concerning the publications complained of subject hereof but solely relied on extraneous distorted information obtained out of malice.

7)The defendant never sought to verify the contents of the subject publication.

8)The defendant knew, or ought to have known, that the allegations contained in the said publications were grave and with criminal intonation.

9)The said words were published with reckless disregard as to whether or not they were defamatory.

10)The defendant published the allegations contained in the said publication recklessly and irresponsibly without caring whether the allegations in question were true or false and without taking steps to verify the facts and/or ascertain the truth.

11)The defendant has to date not cared to admit liability or even tender a retraction with a suitable apology thereto despite demand in this regard having been made to the defendant prior to filing this suit.

12)The defendant published and/or caused to be published the said words without due consideration of the plaintiff’s position as a family man, in the National Alliance and Lake Basin Development Authority.

13)The plaintiff, George Onyango Oloo, testified on 30th September, 2021 that the impugned publication of 10th November, 2015 by the defendant was not true and only served to damage his reputation. He further testified that the publication by the Weekly Citizen owned by the defendant has a wide circulation and his friends called to make inquiries on the said publication. The plaintiff states that since the alleged defamatory publication was not retracted, his political career and especially his leadership ability is always in question. He urged the court to compel the defendant to apologize and order damages in his favour as against the defendant.

14)PW 2, Micheal Oliewo,confirmed reading the impugned publication by the Weekly Citizen of 10th November, 2015 and specifically on the contents that referred to the plaintiff. He testified that he immediately called the plaintiff to notify him of the publication. His further testimony was that he met the plaintiff in 1990 at the University of Nairobi.

15)He stated that the plaintiff has represented him in a number of court cases in addition to contesting for a political position in Kisumu where he is a voter. He further testified that he knew the plaintiff to be a morally upright however his perception changed after reading the publication.

16)The plaintiff submit that he seeks to rely on the following documents;i.The plaint dated 28th August, 2015ii.The plaintiff witness statement dated 28th August,2015iii.The witness statement of Joseph Mathai dated 15th July, 2020iv.The witness statement of Moses Ochieng’ Adem 15th July, 2020v.The submissions and the authorities filed herewithvi.All the exhibits produced before this honourable court.

17)The plaintiff has identified the following issues for this court’s consideration and determination;i.Whether the words published refer to the plaintiffii.Whether the said publication by the defendant was malicious and with an intent to discredit the plaintiff before the right thinking members of the publiciii.Whether the article complained about carry false allegationsiv.Whether the defendants published the allegations recklessly and irresponsibly without care to know if they were true or false and without taking steps to verify the fact and/or ascertain the truth.v.Whether the publications by the defendants were defamatory of the plaintiff as alleged in the plaintvi.Whether the defense of justification is available to the defendant.

18)The plaintiff submits that the impugned article mentions his name six times and further introduced him as the National Alliance Secretary General, a position he was then. He further contends that his identity was confirmed by PW 2, Micheal Aliewo,in his testimony in court.

19)In defining defamation, the plaintiff has referred to the Black’s Law Dictionary Tenth Edition at page 506 which states;“Malicious or groundless harm to the reputation or good name of another by the making of a false statement to third person. If the alleged defamation involves a matter of public concern, the plaintiff is constitutionally required to prove both statements falsity and the defendant’s fault.

20)The plaintiff has also referred to the text in Hulsbury’s Laws of England 4th Edition Vol. 28 at page 23 where 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 whom the publication was made would be likely to understand them in a defamatory sense.”

21)Additionally, he has referred to the case of Viztelly v Mudies Select Liabrary Limited [1990] 1QB 178, the case of Amritlal Bhagwabji Shah v The Standard Ltd &another, Nairobi Hccc No. 1073 Of 2004 and the case of John Edward v Standard Ltd where the court defined defamation and the ingredients thereof;“A statement is said to be defamatory when it has a tendency to bring a person to hatred, ridicule, or contempt or which causes him to be shunned or avoided or has a tendency to injure him in his office, profession or calling. The ingredients of defamation are;-The statement must be defamatory.The statement must refer to the plaintiff.The statement must be published by the defendant.The statement must be false.”

22)Similarly, reference has been made to the case of Joseph Njogu Kamunge v Charles Muriuki Gacheri [2016] eKLR where the court cited Gatley on Libel and Slander which adopted the definition in Thomas v CBC where it was held;“The gist of the torts of libel and slander is the publication of matter (usually words) conveying a defamatory imputation. A defamatory imputation is one to a man's discredit, or which tends to lower him in the estimation of others, or to expose him to hatred, contempt or ridicule, or to injure his reputation in his office, trade or profession, or to injure his financial credit. The standard of opinion is that of right-thinking persons generally. To be defamatory an imputation need have no actual effect on a person's reputation; the law looks only to its tendency. A true imputation may still be defamatory, although its truth may be a defence to an action brought on it; conversely untruth alone does not render an imputation defamatory."

23)It is the plaintiff’s further submissions that the words in their natural meaning damaged his reputation and character as a family man. Reference has been made to the case of Kudwoli Veureka Educational & Training Consultants No. 126 Of 1990 as cited in Wycliffe Swanya v Toyota East Africa Limited & Another Civil Appeal No. 70 Of 2008 where the court held inter alia that;“In order for a claim to succeed, it must be shown that the words are defamatory in that they have a propensity to lower a person’s reputation in the eyes of the right thinking persons or that the words tend to cause the person to be rejected, disliked, ridiculed or avoided by people. In this regard the words must have been shown to have injured one’s reputation character or dignity. It must also be proved that the defamatory matter was published and it referred to the claimant.”

24)The plaintiff has also made reference to the case of Musikari Kombo v Royal Media Services Limited [2018] eKLR where the Court of Appeal stated that;“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 expressed himself in the following manner:“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…”

25)The plaintiff has submitted that the allegations in the impugned publications are false and only meant to taint his image and character. He contends that the TNA party neither lost any money, nor has he been investigated or charged with mismanagement of funds during the period he was its secretary general. The plaintiff further contends that the defendant failed to take any step to verify the alleged defamatory statements before publication. He has made reference to the case of Stanbic Bank Limited v Stephen Mutoro & 2 Others [2014] eKLR which cited with approval the decision in Phineas Nyagah v Gitobu Imanyara[2013]eKLR where it was held that:“Evidence of malice may be found in the publication itself if the language used is utterly beyond or disproportionate to the facts. That may lead to an inference of malice…….malice may also be inferred from the relations between the parties. The failure to inquire into the facts is a fact from which inference of malice may properly be drawn.”

26)The plaintiff further submission is that the statements published in the defendant’s newspaper was defamatory. He has further submitted that all the ingredients of the tort of defamation has been fulfilled. The plaintiff submits that PW2, Micheal Aliewo, testimony that he called the plaintiff immediately after reading the statements on the defendant’s publication confirms that the publication referred to him. Further, the plaintiff states that in the words of the witness, the publication made him reevaluate his integrity and ability as a political leader.

27. The plaintiff has also submitted that since the defendant neither entered appearance, file defence nor participated in the proceedings despite being serve, there is no defence available to them. He has submitted that the defence of justification or qualified privilege is not available in the present suit for reason that the published statements are false. He made reference to the case of Joseph Njogu Kamunge v Charles Muriuki Gachari [2016] eKLR and the case of Hon. Uhuru Muigai Kenyatta v Baraza Limited [2011] eKLR. He has further reiterated the prayers sought in the plaint.

28)A perusal of the record indicates that despite service, the defendant neither entered appearance, filed any pleadings or participated in the hearing of the suit. I have perused the file and it is evident from the numerous affidavit of service that the plaintiff was indeed served.

29)The defendant did not participate in the proceedings despite proper service therefore the evidence by the plaintiff remains uncontroverted. Having gone through the plaintiff’s pleadings and submissions, the issues for this court’s determination are;i.Whether the plaintiff has proved that the publication of 10th November, 2011 by the defendant was false, malicious and defamatory;ii.What damages, if any, are awardable and who should pay costs?

30)Gatley on Libel and Slander 10th Edition at page 8 states:-“There is no wholly satisfactory definition of defamatory imputation. Three formulae have been particularly influential: SUBPARA (1)would the imputation tend to ‘lower the plaintiff in the estimation of right-thinking members of society generally?(2)would the imputation tend to cause others to shun or avoid the claimant?(3)would the words tend to expose the claimant to ‘hatred’ contempt or ridicule? The question what is defamation relates to the nature of the statement made by the defendant: words may be defamatory even if they are believed by no one and even if they are true, though in the latter’s case they are not, of course, actionable.”

31)Similarly, Patrick O'Callaghan in the Common Law Series: The Law of Tort at paragraph 25. 1 states as follows;“The law of defamation, or, more accurately, the law of libel and slander, is concerned with the protection of reputation: 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 that injure his reputation.”

32)Recently, the Court of Appeal in Selina Patani & Another v Dhiranji v Patani [2019] eKLR cited with authority the case of John Ward v Standard Ltd, HCCC 1062 of 2005 where the ingredients of defamation were summarized as below: -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.

33)From the foregoing, the elements of the tort of defamation are that the words must be defamatory in that they must tend to lower the plaintiff’s reputation in the estimation of right minded persons in the society or they must tend to cause the plaintiff to be shunned or avoided by other persons. In other words, the words complained of must be shown to have injured the reputation, character or dignity of the plaintiff. The burden of proof lies with the Plaintiff to prove his case on a balance of probabilities as stipulated in section 109 of the Evidence Act which provides that the burden of proof lies with that person who wishes the court to believe in its existence and that he who asserts a fact must prove, as stipulated in section 107 of the Evidence Act. The provisions of sections 107 and 109 of the Evidence Act, Cap 80 provide;107. (1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

34)From the onset and from the issues as framed by the plaintiff, there is a presumption that there was publication of the statements subject of this suit. However, this court is under a duty to determine, from the evidence adduced by the plaintiff and his respective witness, whether there was publication and whether the publication, if established, was defamatory of and concerning the plaintiff.

35)In the present case, the plaintiff claims that the alleged defamatory statement was published by the defendant November 10th to 16th 2014 edition of Weekly Citizen under the title “TNA Secretary General’s Unknown Side Laid Bared”.The defamatory statement as alleged by the plaintiff plaint filed on 3rd September, 2015 is as reproduced below;“…TNA secretary general Onyango Oloo is a man under siege. It is now alledged that Onyango has abandoned his family in Manyatta estate in Kisumu and moved in with a widow called Deborah in Kajulu, who is wife of the late councilor Sebo Odhiambo…Onyango is also accused of having milked Jane, the wife of the former senior politician in Kisumu, Angai Abongo. Onyango allegedly conned Jane millions of shillings and used the money to build a house in Syokimau for his wife Carren whom he had dumped while he was on a long sojourn preying on gullible widows.Onyango who is the chairman of the Lake Basin Development Authority is also under pressure from TNA loyalists who are keen to see him kicked out of the seat. Those scheming to kick him out argue he has no value. Politicians from Jubilee stronghold of Central and Rift Valley say he comes from CORD zone and that the party should replace him with loyalists from either Rift Valley or Central regions.His problems began when he secretly pushed for nominations of MCAs and Senators without proper consultations and throwing the party’s constitution out of the window.Initially he was believed to be in good books with part chairman Johnson Sakajja but the two have since fallen out due to political interests.According to sources well versed with TNA power games, Onyango had been promised nominations to either Parliament or Senate but instead Sakajja landed the nomination something that he has never forgiven Sakajja for. He was latter promised appointment to the Cabinet to represent the Luo community but president Uhuru appointed Rachel Omamo, daughter of former Cabinet Minister Odongo Omamo. It has been whispered that Uhuru feared Oloo would not be approved by Parliament’s vetting committee as he is having a pending criminal case”

36)According to the plaintiff, the alleged defamatory publication which enjoys country wide circulation including online presence has lowered his reputation as it made him out as an incompetent leader and a philanderer in the public eyes. He further contends that the alleged publication has affected his political career and his personal life. He states that apart from losing friends and becoming a laughing stock among his peers and colleagues in the legal profession, his wife has been subjected to psychological torture. Additionally, he averred that his chances for a political appointment has reduced drastically.

37)Since the defendant did not participate in these proceedings, the burden of proof continued to lie with the Plaintiff to prove his case in accordance with section 107 and section 109 of the Evidence Act. The plaintiff did not file or produce any documentary evidence in support of his claim as against the plaintiff. I have thoroughly perused our court record and it is evident that the plaintiff only filed his witness statement and bundle of authorities. The defendant did not defend the suit.

38)I do find that indeed there was a publication relating to the plaintiff by the defendant as pleaded in the plaint. The publication touched on the plaintiff and triggered the filing of the current case. The contents of the publication are that the plaintiff conned one Jane millions of shillings and used the money to build a house for his family. There is also publication to the effect that the plaintiff preys on gullible widows. I am satisfied that the publication was defamatory as it painted the plaintiff as a man of lose morals who preys on windows and milk their money.

39)Gatley on Libel and Slander, 10th Edition at page 8 explains defamation as follows:-“There is no wholly satisfactory definition of defamatory imputation. Three formulae have been particularly influential: SUBPARA (1)would the imputation tend to ‘lower the plaintiff in the estimation of right-thinking members of society generally?(2)would the imputation tend to cause others to shun or avoid the claimant?(3)would the words tend to expose the claimant to ‘hatred’ contempt or ridicule? The question what is defamation relates to the nature of the statement made by the defendant: words may be defamatory even if they are believed by no one and even if they are true, though in the latter’s case they are not, of course, actionable.”

40)I do find that the statement published by the defendant was defamatory. The statement referred to the plaintiff and there is no evidence from the defendant to establish that the statement was true. I am satisfied that the plaintiff has proved his case on a balance of probabilities.

41. The second issue relates to the quantum of damages to be awarded to the plaintiff. In their written submissions, counsel for the plaintiff did not make any suggestion as to the amount of damages in quantitative terms should be paid to the plaintiff. Counsel urged the court to award general damages for injurious falsehood and/or malicious statements.

42)In the case of C.A.M. v Royal Media Services Limited [2013] eKLR the Court of Appeal held:-“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 233-243include 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.”

43)In the case of Sankale Ole Kentai v Nyamodi Ochieng Nyamodi & Another, [2012] eKLR the Court awarded Kshs.800,000/= as damages to the plaintiff. This suit was undefended. The defendant’s publication as per the plaint is circulated weekly. It cannot be categorized as a mainstream publication. PW2 testified that he was surprised by the publication as he knew the plaintiff to be morally upright. I do find that an award of Kshs.800,000/= is sufficient compensation to the plaintiff.

44)In the end, the plaintiff is awarded Kshs.800,000/= as general damages plus costs of the suit. The judgment sum to attract interest at court rates from the date of judgment until full payment.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 16TH DAY OF DECEMBER, 2022. ..............................................J. K. SERGONJUDGEIn the presence of:……………………………. for the Appellant……………………………. for the Respondent