[2022] KEHC 9834 (KLR)

Olunga v Weekely Citizen & 2 others (Civil Appeal 569 of 2017) [2022] KEHC 9834 (KLR) (Civ) (9 June 2022) (Judgment)

Neutral citation: [2022] KEHC 9834 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 569 of 2017

JN Mulwa, J

June 9, 2022

Between

Vitalis Onyango Olunga

Applicant

and

Weekely Citizen

1st Respondent

Jane Omogi

2nd Respondent

Leonard Oriaro

3rd Respondent

(Being an appeal against the Judgment and Decree of Hon. M. Obura (PM) delivered on 3rd December, 2015 in Nairobi Chief Magistrate's Civil Case No. 2812 of 2012)

Judgment

1. The Appellant filed a suit against the Respondents in the trial court vide a Plaint dated 24th May 2012 where he sought the following reliefs: an apology and retraction of an alleged defamatory publication in the Weekly Citizen titled “Principal interdicted after school funds looted", general damages, exemplary damages, an injunction, costs of the suit and interest thereon.

2. He alleged that he was defamed by the aforesaid article which the 1st Respondent wrote and published in its weekly Citizen Newspaper of 21st to 27th May, 2012, volume 16 issue number 21 at page 7. In particular, the Appellant reproduced the impugned article as follows:“Jane Omogi, Siaya District Education Officer said George Odhiambo Anyangah former Obambo Mixed Secondary School Principal, has been interdicted and replaced by the deputy principal at Barding Secondary School on acting capacity.The development came after, a section of board members, led by area civic leader, councilor Leonard Oriaro, who had raised red flag over the school's mismanagement embezzlement of development funds and impunity, at the school, orchestrated by Anyangah and a section of school board governors.Oriaro, who is a board member at the institution, said it forced himself and some of his colleagues on the school's board to write a protest letter against the malpractices to the ministry of Education on discovery that millions of shillings meant for the school projects could not be accounted for.According to some board members, Anyangah and the board chairman Vitalis Onunga are responsible for Sh. 400,000 withdrawal from the institution's bank account for the construction of a pit latrine, which they observed could not have cost more than Sh. 70,000. Other grievances, stated in the protest letter, were that an inflation of Sh. 40,000 was detected, after it emerged that Sh. 170,000 was withdrawn to fund the wiring of classrooms instead of the required. Sh. 30,000 for the project. Anyangah is also accused to have singlehandedly increased the fee to Sh. 15,000 at the beginning of the term up from the usual Sh.11,000, a move that immediately put him on a collision course with the board members and the parents, who vowed to reverse the decision which they termed as illegal.They further claimed that a plan to equip the school with ICT equipment hit a snag after the principal conspired and illegally awarded Sh. 870,000 tender to one of the board members who consequently purchased substandard equipment.Oriaro said the school has been battling dwindling academic performance for the last two years the teacher has been heading it, adding concerned sponsors had threatened to withdraw their support for the institution.Equally saddening is the fact that over Sh. 450,000 which was donated by parents on the board members and stakeholders, to cater for the upkeep of the Kenyan Queens, the Obambo Mixed Netball team that had emerged the 2010 Kenya National Secondary School Netball Cup champions, in the East African regional ball games in Barara Uganda last year, cannot be accounted for bearing in mind that soon after the collection of the said amount the Naivasha-based Brookside milk processor had taken over the complete upkeep of the netball team in Uganda.”

3. Further, he alleged that the defamatory information was circulated to the 1st Respondent by the 2nd and 3rd Respondents. The Appellant claimed that in their natural and ordinary meaning, the words meant that he was a thief as well as a corrupt and dishonest man. That as a consequence, his personal and business reputation was seriously damaged and he also suffered great distress and embarrassment.

4. Only the 2nd Respondent filed a Statement of Defence dated 4th December 2012 where she denied ever publishing the defamatory words or contributing to the publication in any way.

5. The 1st and 3rd Respondents neither filed Defences nor participated in the hearing of the matter.

6. After hearing the Appellant’s case and that of the 2nd Respondent, the trial court found that the Appellant had not proved his case on a balance of probability and dismissed it with costs. Being aggrieved by the said decision, the Appellant lodged this appeal and raised the following grounds:1. The learned magistrate erred in law and fact in finding that the publication dated May 21-71, 2012 complained of by the Respondent was not defamatory.2. The learned magistrate erred in law and fact in finding that the Appellant had failed to establish his claim on a balance of probabilities.3. The learned magistrate erred in law by failing to provide for grounds that lead to judgment against the appellant in respect to the 1st and 3rd Respondents.4. The learned magistrate erred in fact and law by holding that the 1st, 2nd and 3rd Respondents bear no liability to the appellant for the publications made.5. The learned magistrate erred when he held that the thrust of the 3rd Respondent's publication did not shun his reputation and that the evidence of the witnesses was not sufficient to prove the same.7. The learned magistrate erred in failing to find that the 1st, 2nd and 3rd Respondents originated the said publications on falsehoods concerning the Appellant.8. The learned magistrate erred in failing to hold that it was not a lawful practice of journalism for the 3rd Respondent to abuse their position as owners of a media enterprise to engage in character assassination and total destruction of the Appellant's reputation and integrity.9. The trial magistrate erred in law by failing to assess the damages payable to the Appellant.

7. This being a first appeal, this court is by law enjoined to re-consider and re-evaluate the evidence presented before the trial court and come up with its own independent conclusions. (See Selle v Associated Motor Boat Co. [1968] EA 123)

8. PW1, Tom Olunga Owuor testified that he was a former board member at Obambo Secondary School in Siaya during the period when the Appellant was a chairman of the school. He testified that he personally read the article which alleged that the Appellant and the principal had squandered school’s funds. He stated that the false information ruined the Appellant’s reputation in the village as he was portrayed as a thief. The publication was false. In his view, the information emanated from the 3rd Respondent who got it from the district education officer, the 2nd Respondent herein. On cross examination, PW1 stated that the publication did not affect how he views the Appellant.

9. PW2, Vitalis Onyango Olunga was the Appellant herein. He testified that his name was mentioned in negative light in the publication at paragraph 4 thereof. He testified that the allegation that he embezzled the school’s funds damaged his character and affected him psychologically and his public life. That he missed the opportunity to be an Executive Officer in Siaya County and some people who were close to him begun to shun him. He stated that there were general audit quarries and he was not held responsible for any wrong doing. He faulted the 2nd Respondent for failing to forward the audit query to the Board for deliberation.

10. PW3, Joseph Nallo adopted his statement as his evidence in chief. He stated that he served in the school’s Board of Governors when the Appellant was the chairman. In the statement, he stated that someone called him ad informed him that the theft report to the 1st Respondent was made by the 2nd and 3rd Respondents. He stated that the publication was false since he was on the ground and was well aware of everything going on in the school. Further, he claimed that the publication was damaging to the Appellant’s reputation. In cross examination, he stated that the article didn't change his impression of the Appellant who was his relative and village mate.

11. DW1, Jane Atieno Omogi was the 2nd Respondent herein. She adopted her statement dated 30th July 2014 as her evidence in chief. She testified that she is the District Education Officer, Siaya. She denied giving any information to the Weekly Citizen Reporter and stated that it could have been done by any member of the public or the board. She testified that the PTA Chairman admitted that school funds were misused. She confirmed that the contents and conclusion of the article are false and that the person they held accountable for misappropriation of funds was the school principal.

Analysis and Determination 12. I have considered evidence tendered before the trial court and the Appellant’s written submissions together with the authorities cited. The key issue arising for determination is whether the learned trial magistrate erred in finding that the Appellant had not proved his defamation claim.

13. According to Patrick O'Callaghan in the Common Law Series: The Law of Tort at paragraph 25. 1, the law of defamation is concerned with the protection of a person’s reputation and not his character. The elements of defamation were outlined by the Court of Appeal in case of Selina Patani & another v Dhiranji V. Patani [2019] eKLR as follows:(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.

Whether the article referred to the Appellant 14. In Onama v Uganda Argus [1969] EA 92, the Court of Appeal of Eastern Africa held that in deciding the question of identity, the proper test is whether reasonable people who knew the plaintiff would conclude that that the report referred to him. I have studied the impugned article which is the subject of the instant case. It is clear that Paragraph 5 thereof specifically referred to the Appellant by his name “Vitalis Onunga” and the position he held at the material time which was chairman of the Board of Governors of Obambo Mixed Secondary School. This fact was not disputed by any of the witnesses. In the circumstances, the court finds that any reasonable person who knew the Appellant would be led to the conclusion that the article referred to him.

Whether the statements and/or words complained of were defamatory of the Appellant 15. A defamatory statement was defined by the Court of Appeal in S M W v Z W M [2015] eKLR as:“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.”

16. 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.”

17. From the above authorities, it is evident that the test for whether a statement is defamatory will depend on what a reasonable person would perceive of the words used. Kuloba J. (as he then was) had an opportunity to consider who a reasonable man is in the context of a defamation claim in J. Kudwoli & Anor v Eureka Educational & Training Consultants & 2 others (1993) eKLR. The Learned Judge expressed himself as follows: -“This standard rules out extremes at either poles; embracing neither a genius nor an idiot, neither a fanatic nor a faddist, neither a walking encyclopedia nor an illiterate. He is simply a fair–minded person and not one with a morbid or unduly suspicious mind which must discover defamatory imputation in everything published. One with impervious intellect is excluded. The test of reasonable which guides and directs the court in deciding whether the matter carries a defamatory imputation requires involving ordinary intelligence, not the intelligence of persons setting themselves to work to deduce some unusual imputation might succeed to discover.”

18. The specific statement in the impugned article which the Appellant deemed to be defamatory of him reads:“According to some board members, Anyangah and the board chairman Vitalis Onunga are responsible for Sh. 400,000 withdrawal from the institution's bank account for the construction of a pit latrine, which they observed could not have cost more than Sh. 70,000. ”

19. The ordinary and natural meaning of the above paragraph when looked at in light of the entire publication is that the Appellant colluded with the school principal to embezzle the school’s funds in the sum of Kshs. 400,000 on the pretext that the same was to be used for construction of a pit latrine. The Appellant’s witnesses, PW1 and PW2, both testified how in their assessment as reasonable people, the words used meant that the Appellant and the principal of the school had squandered the school’s funds. They were categorical that the impugned article ruined the Appellant’s reputation in the village since it portrayed him as a thief. I am therefore satisfied that the Appellant’s reputation was indeed injured.

Whether the Statement was published by the Respondents? 20. The Appellant submitted that the impugned article identifies the source of its content and the persons behind its publication as the 2nd and 3rd Respondents. In his view therefore, it was fool hardy for the trial magistrate to claim that the source of the defamatory words was unknown.

21. It is not in dispute that the article in issue was written and published by the 1st Respondent. In the article, the 2nd and 3rd Respondents were mentioned as having taken various actions in respect to the allegations therein. The 2nd Respondent is mentioned as having said that the former principal of the school had been interdicted whilst the 3rd Respondent was mentioned as the whistleblower. The article does not however state in what context the said Respondent’s acted as such. The Appellant as well as both PW1 and PW2 purported to lay blame on the 2nd and 3rd Respondents on that basis by alleging that it was the two that disseminated the information to the 1st Respondent for publication. Notably however, neither of them tendered any proof that the 1st and 2nd Respondents were the originators of the article.

22. I am more drawn to believe DW1’s evidence that the information could have been shared by anybody else given that the entire Board of Governors was aware that there had been misappropriation of school funds. The party that could have been best placed to reveal the source of the information is the 1st Respondent who did not participate in the proceedings before the trial court. It did not manufacture the article; the contents therein must have been disseminated to the publisher of the 1st Respondent by somebody well known to itself. In its wisdom and choice, it failed to appear or defend from the accusations labelled against it. There is therefore no doubt that the publication was made by the 1st Respondent.

Whether the statement was false and malicious 23. All the witnesses who testified before the trial court were in agreement that the statement which made reference to the Appellant was false. Particularly, PW3’s uncontroverted testimony was that the information therein did not depict the real situation on the ground as he was still serving in the school and was well aware of everything that was going on. More importantly, the 2nd Respondent who was part of the team that received the audit report testified that she did not agree with the article. Further, during her cross examination, the 2nd Respondent categorically confirmed that the information on the article is false since the only person that they held accountable for misappropriation of funds was the school principal who is not a party to the proceedings.

24. Further, I have perused the entire record, there is no evidence that the 1st Respondent took any steps to ascertain and/or verify the allegations which painted the Appellant as an accomplice to the person who had mismanaged school funds before publishing it. There was therefore malice on the part of the 1st Respondent. I am persuaded to find that it was out of malice that the 1st Respondent published the offending article without ascertaining the truth of the claims therein and particularly those that referred to the Appellant.

25. I am guided by the case of Phinehas Nyagah v Gitobu Imanyara [2013] eKLR where the court stated as follows:“An injurious falsehood may not necessarily be an attack on the plaintiff’s reputation. The words must be maliciously published and malice can be inferred from a deliberate or reckless or even negligently ignoring of facts…Malice here does not necessarily mean spite or ill-will but recklessness itself may be evidence of malice. 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 but the law does not weigh in a hair balance and it does not follow merely because the words are excessive, there is therefore malice. Malice may also be inferred from the relations between the parties before or after publication or in the conduct of the defendant in the course of the proceedings. Malice can be founded in the publication itself if the language used is utterly beyond the facts. 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.” [Emphasis mine]

26. For all the foregoing reasons, it is my considered view that the Appellant proved his case on a balance of probability.

27. The next question therefore is to determine the appropriate remedies in the circumstances. I note that in his submissions filed herein, the Appellant seems to have abandoned the prayers for an apology and injunction which were sought in the Plaint. He has now urged the court to award him Kshs. 500,000 in compensatory damages and a similar sum for aggravated damages as well as costs and interest thereon.

28. In Joseph Njogu Kamunge v Charles Muriuki Gachari [2016] eKLR, Mativo J. cited the case ofJohn 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.”

29. In determining the appropriate award in this case, reliance was placed on the following decisions involving similar circumstances: Joseph C. Langat v Wilson K. Rono & another [2019] eKLR where the court held that it would have awarded Kshs. 500,000/- in general damages if the claim had been proved; Bethwel Allan Omondi Okal v Royal Media Services [2017] eKLR, where the court awarded general damages for Kshs. 200,000/- and exemplary damages of Kshs. 2,500,000/-: Kenya Tea Development Agency Ltd v Benson Ondimu Masese T/A B. O. Masese & Co. Advocates [2008] eKLR where the Court of Appeal raised an award of Kshs. 500,000/- to Kshs. 2,000,000/-. Others are Elisha Ochieng Odhiambo v Booker Ngesa Omole [2021] eKLR.

30. The thread running through the decisions is that an award of damages for defamation is dependent on the claimant’s status in the public eye and the gravity of ridicule and scorn from the right thinking members of the society within the claimant’s jurisdiction and career. The Appellant having been a high school board chairman was well placed in the region and the defamatory publication of theft of the school funds without a doubt left his character and reputation seriously injured. To that end, the court awards Kshs. 500,000/- for general damages and a similar amount for aggravated damages.

31. Consequently:(i)The appeal is allowed; the trial court’s judgment dated 3rd December 2015 is set aside in entirety.(ii)The Appellant is awarded a sum of Kshs. 500,000/- in general damages and Kshs. 500,000/- in aggravated damages.(iii)The 1st Respondent, Weekly Citizen, shall bear the costs of this appeal as well as costs in the trial court to the Appellant.Orders accordingly.

DATED SIGNED AND DELIVERED THIS 9TH DAY OF JUNE 2022. J.N. MULWAJUDGE