[2023] KEELRC 3376 (KLR)

Omariba v Isuzu East Africa Limited & another (Employment and Labour Relations Cause 868 of 2019) [2023] KEELRC 3376 (KLR) (20 December 2023) (Judgment)

Neutral citation: [2023] KEELRC 3376 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Employment and Labour Relations Cause 868 of 2019

JK Gakeri, J

December 20, 2023

Between

Felix Erick Gwaro Omariba

Claimant

and

Isuzu East Africa Limited

1st Respondent

Honda Motorcycle (K) Limited

2nd Respondent

Judgment

1. The Claimant commenced this suit by a Memorandum of Claim filed on 20th December, 2019 alleging unfair termination of employment and defamation.

2. It is the Claimant’s case that he joined the 1st Respondent on 9th May, 2019 as a Vehicle Warehouse Supervisor at a basic salary of Kshs.200,000/= and served diligently.

3. The Claimant avers that before joining the 1st Respondent, he worked with the 2nd Respondent as the Assistant Parts Manager and resigned voluntarily on 1st April, 2019 by written notice.

4. The Claimant further avers that when the 1st Respondent sought a reference from the 2nd Respondent, it published defamatory statements about him as they were unfounded allegations published arbitrarily with malicious intent as it was not within the Claimant’s knowledge and the 2nd Respondent had already acknowledged his resignation.

5. That acting on the information from the 2nd Respondent, the 1st Respondent terminated the Claimant’s employment without being afforded a fair hearing to respond to the allegations.

6. The Claimant prays for;(i)12 months compensation by the 1st Respondent for unfair termination.(ii)Damages for defamation by the 2nd Respondent, Kshs.25,000,000/=.(iii)Costs of the suit.(iv)Interest on (i) (ii) and (iii).

1st Respondent’s case 7. The 1st Respondent admits that the Claimant was indeed its employee serving the probationary period and the offer of employment was subject to satisfactory references from 3rd parties.

8. That the Claimant’s salary was consolidated.

9. It is the Respondent’s case that it sought a reference from the Claimant’s immediate employer, the 2nd Respondent and responses dated 23rd May, 2019 and 6th June, 2019 were provided which the 1st Respondent considered unfavourable and terminated the Claimant’s employment vide letter dated 8th April, 2019.

10. That the 1st Respondent sought and obtained detailed confirmation of the alleged fraudulent activities from the 2nd Respondent.

11. The 1st Respondent avers that the termination of the Claimant’s employment was based on a condition precedent and disciplinary hearing did not arise and the 1st Respondent had no reasonable cause to believe that the information provided was false and had no obligation to verify the same and the unsatisfactory reference was a valid and justifiable reason to terminate the Claimant’s employment.

2nd Respondent’s case 12. The 2nd Respondent denies having defamed the Claimant or being responsible for his termination from employment as the information given to the 1st Respondent was not defamatory nor published maliciously and the Claimant resigned after investigations had been concluded.

13. It is the 2nd Respondent’s case that it did not publish the information in the letter dated 8th May, 2019.

14. That there is no labour dispute between the Claimant and the 2nd Respondent as he was not an employee when the alleged defamation took place.

Claimant’s evidence 15. On cross-examination, the Claimant confirmed that the offer by the 1st Respondent was conditional upon satisfactory references and admitted that he was serving the probationary period.

16. That he tried to explain himself but his employment was terminated.

17. The witness admitted that he was paid for the days worked and one month’s salary in lieu of notice.

18. That a meeting was held on 10th June, 2019 but he was not heard.

19. The witness confirmed that the Respondents were competitors and his work required a high level of integrity.

20. That he disclosed to the 2nd Respondent that he had gotten employment with the 1st Respondent and the letter dated 6th June, 2019 was given to him by the 1st Respondent.

21. The witness testified that no investigation was going on against him or any of the associates and further admitted that he attended the meeting held on 11th April, 2019 and signed the same on 13th May, 2019 while an employee of Isuzu EA Ltd, the 1st Respondent.

22. The Claimant admitted that he was invited for a disciplinary hearing vide email dated 3rd May, 2019 and attended the hearing on 6th May, 2019, two days before he left the 2nd Respondent’s employment and was cleared of the alleged malpractices.

23. On re-examination, the Claimant testified that he had consented that referees be contacted, was paid all dues other than compensation and had no pending disciplinary letter.

24. The Claimant maintained that he was not afforded the opportunity to rebut the allegations by the 2nd Respondent.

25. That the email had no specific allegations, his resignation 2 days later was accepted unconditionally and the outcome of the hearing was not filed in court.

26. That the allegations made to the 1st Respondent had not been itemized in any document.

1st Respondent’s evidence 27. Mr. Anthony Musyoki confirmed that the Claimant was entitled to a fair process during his exit and his employment was terminated on the basis of the information provided by the 2nd Respondent and was afforded a chance to respond to the allegations but no notice to show cause was issued or invitation to discuss the contents of the letter.

28. The witness confirmed that the 1st Respondent did not confirm whether the information was accurate of not.

29. That the Claimant served the 2nd Respondent for about one (1) month and was still on probation.

30. That the 1st Respondent relied on the letter dated 23rd May, 2019.

31. The witness testified that other than the 2nd Respondent’s letter, the 1st Respondent had another undisclosed source of information.

2nd Respondent’s evidence 32. Mr. Eric Ngugi confirmed on cross-examination that the Claimant resigned voluntarily and had previously been invited for a disciplinary hearing but minutes were not filed.

33. The witness confirmed that no notice to show cause had been given as investigations by the Finance Manager were on-going but the report was not filed.

34. That the letter dated 6th June, 2019 made no reference to the particulars of the alleged improprieties.

35. The witness confirmed that the information provided to the 1st Respondent was truthful.

36. That the Claimant was accorded an opportunity to explain what he knew about the allegations.

37. On re-examination, the witness told the court that the 2nd Respondent had not adduced evidence of the Claimant’s personal involvement in the activities alleged but he was the one in-charge of the Parts department and oversaw all the operations.

Claimant’s submissions 38. Counsel isolated three issues for determination on termination, defamation and reliefs.

39. On termination, counsel submitted that it was unfair and unlawful for want of a substantive justification and procedural fairness as no notice to show cause was issued and no hearing took place and RWI confirmed that the 1st Respondent did not verify the information and the Claimant’s probationary contract was terminated.

40. Reliance was made on the sentiments of the court in Ezekiel Nyangoya Okemwa V Kenya Marine & Fisheries Research Institute (2016) eKLR and Walter Ogal Anuro V Teachers Service Commission (2013) eKLR on the elements of a fair termination of employment.

41. Counsel submitted that the Claimant was not afforded the opportunity to rebut the allegations and no evidence was adduced.

42. That he was entitled to all the rights as an employee.

43. Reliance was also made on the decision in Mary Chemweno Kiptui V Kenya Pipeline Co. Ltd(2014) eKLR to urge that the Respondent did not employ a fair procedure.

44. On defamation by the 2nd Respondent, counsel urged that since the Claimant’s resignation was unconditionally accepted, and RWII confirmed that the Claimant was invited to a disciplinary hearing, and investigations were carried out by the Finance Manager but availed no report, the 2nd Respondent was aware of the alleged fraudulent activities but accepted his resignation unconditionally and no formal accusation had been made.

45. According to counsel, if the Claimant had serious disciplinary issues, the Respondent would have declined the resignation or express it in its letters dated 8th May, 2019 and 23rd May, 2018.

46. Counsel submitted that the 2nd Respondent’s letter dated 6th June 2019 lowered the Claimant’s reputation and cited Uhuru Muigai Kenya V Baraza Ltd to urge that a defamatory statement is presumed false unless its truthfulness is proved by the maker and the 2nd Respondent failed to do so as no evidence was adduced to prove that the Claimant acted as alleged.

47. As regards the reliefs sought, counsel submitted that the Claimant was entitled to maximum compensation and Kshs.25,000,000/= in general damages based on the holding in Kipyator Nicholas Kiprono Biwott V Clays Ltd & 5 others(2000) eKLR where the court awarded the plaintiff Kshs.15,000,000/= as the Claimant lost his employment and there was no evidence implicating him.

1st** Respondent’s submissions 48. Counsel identified two issues touching on termination and 2nd Respondent’s notice of claim.

49. Counsel relied on the decision in Monica Munira Kibuchi & 6 others V Mount Kenya University; Attorney General (Interested Party) (2021) eKLR to urge that the facts in question in the instant suit took place before the foregoing decision and the law permitted termination in the said manner as held in Mathias Amata MwalovKenya Wildlife Services (2021) eKLR.

50. That even a retroactive application of the decision in Monica Munira Kibuchi V Mount Kenya University (Supra) would still conclude that the termination was fair as the 1st Respondent complied with the requirements of Section 41 of the Employment Act, 2007 as the Claimant was invited for a hearing and was notified of the findings of the background checks.

51. That the 1st Respondent had no reason to doubt the 2nd Respondent’s information about the Claimant.

52. On the 2nd Respondent’s Notice of Claim for breach of confidentiality, counsel submitted that the information was requested for in confidence and was only divulged to the Claimant whom it related to as opposed to anyone else.

53. That the writer of a reference owes a duty to the prospective employer not to misrepresent facts about employees if they are likely to injure the employee or 3rd party.

54. That the information about the Claimant was truthful.

55. That no ascertainable damage was occasioned to the Claimant as he still works in the automotive industry and the 2nd Respondent’s Notice of Claim cannot be ascertained.

56. According to the 1st Respondent’s counsel, termination of the Claimant’s employment was fair and the 2nd Respondent’s letter to the 1st Respondent was not malicious and no breach of confidentiality ensued.

2nd Respondent’s submissions 57. On the alleged defamation, counsel submitted that the letters dated 21st May, 2019 and 4th June, 2019 were not defamatory as the ingredients of defamation as set out in John WardvStandard Ltd (2006) eKLR were not met as demonstrated in Naqvi Syed OmarvParamount Bank Ltd & another (2015) eKLR.

58. That the Claimant’s reputation was not injured as he adduced no evidence to establish the same.

59. According to counsel, there was loss of tyres and sale of oil to an associate in the Claimant’s department.

60. That the 2nd Respondent enjoyed qualified privilege as the letters related to the Claimant’s employment and there was no malice or intent to injure his character.

Findings and determination 61. It is common ground that the Claimant was an employee of the 2nd Respondent before joining the 1st Respondent on 9th May, 2019 pursuant to a written contract of employment dated 5th April, 2019.

62. It is also not in contest that the Claimant was serving the probationary period when the 1st Respondent terminated his employment based on information it had received from the 2nd Respondent.

63. It is also not in dispute that the Claimant left the 2nd Respondent’s employment vide a resignation letter dated 8th April, 2019 and served the 30 days’ notice.

64. The issues for determination are:(i)Whether termination of the Claimant’s employment by the 1st Respondent was unfair.(ii)Whether the 2nd Respondent defamed the Claimant.(iii)Whether the 2nd Respondent’s Notice of Claim is enforceable.

65. As regards termination of the Claimant’s employment, counsels adopted opposing positions with the 1st Respondent’s counsel urging that the termination was fair as the facts of the case took place before the decision in Monica Munira Kibuchi V Mount Kenya University (Supra) prior to which the provisions of Section 42 (1) of the Employment Act, 2007 exempted probationary contracts from the provisions of Section 41 of the Employment Act, 2007 in relation to procedural fairness.

66. Clause 1 of the Claimant’s offer of employment by the 1st Respondent stated inter alia;“This offer of employment is also subject to receiving satisfactory references from whatever source(s) the company may refer to”.

67. This would appear to suggest that the offer was conditional upon receipt of what the 1st Respondent considered to be satisfactory references.

68. The letter of termination dated 10th June stated that the Claimant’s employment was grounded on unsatisfactory background report.

69. The letter is reticent on the nature of the report but as confirmed by RWI and RWII and letters on record, the 1st Respondent relied on the 2nd Respondent’s letters to terminate the Claimant’s probationary contract on 10th June, 2019.

70. According to the 2nd Respondent’s letter dated 6th June, 2019, the following were the Claimant’s transgressions.1. Under the Claimant’s supervision, there was loss of tyres under unclear circumstances and he attempted to cover up using money that was meant for cash back to the 1st Respondent’s Dealers without consulting management.2. There was sale of oil to an associate in the Claimant’s department using a dealer’s account so that the associate could enjoy quantity discount. This happened under his watch.3. He never reported on these two issues up to the point when the management discovered and enquired from him what was happening.

71. The 2nd Respondent’s letter was in response to the 1st Respondent’s letter dated 4th June, 2019 which intimated that the 1st Respondent had informally learnt of the Claimant’s involvement in fraudulent activities.

72. It would appear to follow that the 2nd Respondent’s letter of 6th June, 2019 confirmed their fears as it solidified and confirmed the information provided by the informal source.

73. Both RWI and RWII were unambiguous that the 1st Respondent relied on the information provided by the 2nd Respondent in dismissing the Claimant from employment.

74. Based on the conditional nature of the offer of employment by the 1st Respondent and the information provided by the 2nd Respondent, the 1st Respondent in the court’s view had a reason to terminate the Claimant’s probationary employment contract and although the 1st Respondent did not avail a copy of the minutes of the meeting.

75. The Claimant admitted that he was invited by the Director Human Resource for an on-line meeting which had 5 participants and he tried to explain himself but was still dismissed from employment.

76. Clause 3 of the Offer of Employment was explicit that;“. . . During this period, (3 months), employment may be terminated by either side giving the other thirty (30) calendar days of notice or one (1) month’s salary in lieu of notice”

77. Was the 1st Respondent bound to take the Claimant through a disciplinary process analogous to the requirements of Section 41 of the Employment Act, 2007?

78. The court is not so persuaded as relying on the decision in Monica Munira Kibuchi V Mount Kenya University (Supra), Section 41 of the Employment Act, 2007 was still operational and the 1st Respondent was bound to act accordingly as submitted by the 1st Respondent’s counsel, a fact admitted in the 3rd Judge Bench decision as follows;“Having so found, the next question is whether the respondent is liable for terminating the services of the petitioners without according them a hearing as stipulated under section 41 of the Act. The answer to this question would be in the negative. The respondent honestly believed and applied the law as it was prior to the pronouncements contained in this judgement. It would therefore be unjust to condemn the respondent for applying the law as enacted by parliament even if that law is, as we have found it be, inconsistent with the Constitution”.

79. In the court’s view, the fact that the Claimant was informed of the outcome of the background checks and the unsatisfactory nature of the reference from the 2nd Respondent in accordance with the Terms of the Contract and the law at the time, a formal disciplinary hearing to justify his dismissal on letters from another employer would be subjecting the 1st Respondent to an onerous burden on proof as it was relying on secondary information provided by a 3rd party and had no access to the primary documents.

80. In the sum, the court is in agreement with the 1st Respondent’s counsel that termination of the Claimant’s employment was fair and lawful.

81. As to whether the 2nd Respondent’s letter dated 6th June, 2019 was defamatory, the court proceeds as follows:

82. In the words of V.W Rogers in Winfield and Jolowcz on Tort 16th Ed. 2002 at P.404-405“Defamation is the publication of a representation which reflects on a person’s reputation and tends to lower him in the estimation of right-thinking members of society generally or tends to make them shun or avoid him. For historical reasons, defamation takes the form of two separate torts, libel and slander. The former being generally more favourable to the claimant because it is actionable per se and injury to reputation will be presumed.”

83. It is also defined as the publication of a representation which subjects a person to hatred, ridicule and contempt.

84. Whereas under English Law Libel is actionable per se so that the plaintiff is not required to prove actual loss or damage, slander is not except in four circumstances, damages must be proved.

85. As correctly submitted by the 2nd Respondent’s counsel, the elements of defamation were summarised in John Ward V Standard Ltd (Supra) as follows;(i)The statement must be defamatory in its ordinary or natural meaning or by innuendo.(ii)The statement must refer to the plaintiff.(iii)The statement must be published by the defendant.(iv)The statement must be false.

86. In the instant suit, it is not in contest that the 2nd Respondent published information about the Claimant to a 3rd party which the Claimant characterizes as defamatory.

87. Has the Claimant established a cause of action for defamation?

88. The Claimant argues that the information given to the 1st Respondent by the 2nd Respondent was false or untrue.

89. It is the Claimant’s case that he was invited for a disciplinary hearing on 6th May, 2019 via email dated 3rd May, 2019. The email did not set forth any specific allegations other than the phrase “malpractices and procedural mishaps”.

90. Significantly, the email made reference to an investigation.

91. The Claimant testified on cross examination that he attended the hearing and was cleared of the alleged malpractices, evidence the 2nd Respondent did not controvert.

92. If there were unresolved issues at the hearing, why were they not documented in the minutes for records or issuance of a notice to show cause or summary dismissal letter? Had the 2nd Respondent concluded the investigations or were they still on-going and if so, when were they concluded? The letter dated 6th June, 2019 makes no reference to an investigation or report.

93. In further embellishment of his argument, the Claimant confirmed that the alleged hearing took place 2 days before his notice lapsed, he completed and signed the exit interview on 13th May, 2019 and left and the 2nd Respondent did not confront him with the alleged malpractices when he was still their employee or refuse to accept his resignation letter and make it conditional at the very least.

94. Minutes of a Departmental Meeting held on 11th April, 2019 which the Claimant attended and signed while in the employment of the 1st Respondent on 13th May, 2019 was a typical department meeting not a disciplinary one.

95. Puzzlingly, although the email dated 3rd May, 2019 make reference to an investigation which RWII referred to, the witness was emphatic that the report was prepared and none was filed in court. RWII testified that the investigation was conducted by the Finance Manager. Equally, the 2nd Respondent did not file the minutes of the purported disciplinary hearing.

96. In sum, the 2nd Respondent had neither the specific allegations made against the Claimant or supportive evidence nor the minutes and recommendations of the disciplinary committee and RWII testified as much.

97. RWII also confirmed the fact that the Claimant’s resignation was acknowledged by letter dated 8th May, 2019 after the alleged disciplinary hearing and investigation.

98. The writer thanks the Claimant for his “valued contribution to the company” and wishes him “every success in future”.

99. A panoramic view of the documentary evidence before the court reveals that the 2nd Respondent has not demonstrated the factual basis of the contents of the letter dated 6th June, 2019 as it has neither availed a catalogue of the accusations the Claimant faced, his response, minutes of the disciplinary hearing and the investigation report.

100. These documents would have effortlessly shown that by the time the Claimant left or subsequently, the 2nd Respondent had in its possession information implicating the Claimant’s honestly and trustworthiness and was not a reliable supervisor.

101. Without a factual basis of the contents of the 2nd Respondent’s letter to the 1st Respondent, it is evident that the statements painted the Claimant in a negative light as one who was unreliable, corrupt and dishonest among others.

102. In the court’s view, the statements were defamatory in their literal sense as they lowered the Claimant’s image in the estimation of right-thinking members of society and the 1st Respondent cannot be faulted for having relied on the letter to terminate the Claimant’s probationary contract.

103. On reference to the Claimant, it is common ground that the contents of the 2nd Respondent’s letter of 6th June, 2019 identified the Claimant by name. The Reference is clear that it was the Background check on Felix Enock Edward Omariba, the Claimant.

104. On publication of the statements, the court is guided by the sentiments of the Court of Appeal in Selina Patani & anothervDhiranji V. Patani (2019) eKLR as follows;“In, to constitute a cause of action, the alleged defamatory statement should be published to a 3rd party . . .” (See Pullman V Water Hill & Co. (1891) 1 QB 524).

105. In this case, the 2nd Respondent made the defamatory statements known to the 1st Respondent before it had made the same to the Claimant for a response or rebuttal.

106. As to the untruthfulness of the statements and as adverted to elsewhere in this judgement, the 2nd Respondent provided no verifiable material on which it arrived at the conclusion that the statements in its letter dated 6th June, 2019 were indeed true.

107. In the absence of an investigation report and/or findings of the disciplinary committee meeting, the 2nd Respondent had no reasonable basis to make the statements about the Claimant.

108. An investigation report would have shown when and how many tyres were lost and how much cashback was used to conceal the loss.

109. It would equally have shown how much oil was sold and to whom and the irregularities involved as well as the Claimant’s complicity.

110. From the evidence on record, it is the finding of the court that the 2nd Respondent has failed to prove that the contents of the letter dated 6th June, 2019 were indeed true.

111. In the upshot, the court is satisfied that the Claimant has demonstrated that the 2nd Respondent published defamatory information about the Claimant vide the contents of the letter dated 6th June, 2019.

Reliefs (i) Compensation for unfair termination 112. Having found that the Claimant failed to prove that termination of his employment by the 1st Respondent was unfair or unlawful, the prayer for compensation under Section 49(1)(c) of the Employment Act is unmerited and is declined.

(ii) General damages for defamation 113. Having found that the Claimant had proved that he was defamed by the contents of the 2nd Respondent’s letter dated 6th June, 2019, the Claimant is entitled to general damages for the tort of defamation.

114. It is however unclear on what basis the Claimant assessed damages at Kshs.25,000,000/= which is a humongous amount as the decision relied upon related to a politician and long serving Member of Parliament and government minister and the information was published to all the sundry.

115. In this case, the information was only made known to one person and as confirmed by the Respondent’s witness, the Claimant secured a job in the same industry notwithstanding that libel is actionable per se as emphasized in Mohammed Nasoro DimavMohamed Omar Soba (2013) eKLR as well as Patrick Lang’at & another V Samwel Otieno Odera & others (2021) eKLR.

116. In determining the quantum of damages, the court is guided by the sentiments of the court in Johnson Evan GicheruvAndrew Morton & another (2005) eKLR as follows;“In action of Libel, the trial court in assessing damages is entitled to look at the whole conduct of the defendant from the time libel was published down to the time the verdict was given. It may consider what his conduct has been before action, after action, and in court during the trial Praud V Graham 24 QBD 53, 55. In Broom V Cassel & Co. (1972) A.C 1067 the House of Lords stated that in actions of defamation and in any other actions where damages for loss of reputation are involved, the principle of restitutio in integrum has necessarily and even more highly subjective element. Such actions involve money award, which may put the plaintiff in a purely financial sense in a much stronger position than he was before the wrong. Not merely can he recover, the estimated sum of his past and future losses, but in case the libel driven underground, emerges from lurking place at some future date, he must be able to point to a sum awarded by a jury sufficient to convince a bystander of the baselessness of the charges.As Windeyer J. well said in Uren V John Fairtax & Sons Pty Ltd 117 C.L.R 115, 150, it seems to me that, properly speaking, a man defamed does not get compensation for his reputation, that is simply because he was publicly defamed. For this reason, compensation by damages operates in two ways – as a vindication of the plaintiff to the public and as a consolidation to him for a wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money.”

117. Significantly, the decisions relied upon by the Claimant on defamation are of little persuasion as they relate to publication of defamatory statements either by the media or other public mode of communication as was the case in Hon. Uhuru Muigai Kenyatta V Baraza Ltd t/a KTN (2011) eKLR where the court awarded Kshs.7,000,000/=.

118. In Kipyator Nicholas Kiprono Biwott V Clays Ltd & 2 others (2000) eKLR, the defamation took the form of a book published in the UK. The court awarded Kshs.15,000,000/= as compensatory damages.

119. In these cases, the plaintiffs were politicians who are widely known locally and internationally and the publication was both national and international.

120. Finally, in Ezekiel Okemwa V Kenya Marine & Fisheries Research Institute (2016) eKLR, the court awarded Kshs.20,000,000/= for unfair and unlawful termination, diminished employability and in compensation for other violations.

121. It is unclear as to what fraction of the award related to defamation.

122. More importantly, however, the Claimant was a highly educated, skilled and experienced man who was internationally recognized, associated with an institution which shared the Nobel Prize for Climate Change with Al Gore, and a distinguished scientist and was listed among 2,000 outstanding intellectuals of the 21st Century among other accolades.

123. Finally, the Claimant lost appointments to work in prestigious international institutions on account of a criminal trial and his employability suffered enormously.

124. In this case, the Claimant did not adduce evidence of his standing in society, his work, or institutions he had been associated with, fame, recognition, credit and reputation.

125. The 1st Respondent testified that it only disclosed the letter to the Claimant, thus only three persons were aware of the statements, the 2nd Respondent, 1st Respondent and the Claimant.

126. From the foregoing, it is evident that the gravity of the libel was overall minor.

127. In the circumstances, the court is satisfied that the sum of Kshs.200,000/= is fair compensation.

128. On the last issue, the court is not persuaded that the 2nd Respondent’s notice of claim is enforceable as it gave the information while aware that it would be relied upon by the 1st Respondent in decision making and it behooved it to ensure that the information had a factual justification.

129. The fact that the Claimant availed no evidence on how his reputation was injured and was employed in the same industry cannot avail the 2nd Respondent other than by way of mitigation as libel is actionable per se.

130. In the upshot, judgement is entered for the Claimant against the 2nd Respondent with costs.It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 20TH DAY OF DECEMBER 2023DR. JACOB GAKERIJUDGEORDERIn view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.DR. JACOB GAKERIJUDGEDRAFTRULING Nairobi ELRC Cause No. 868 of 2019Page 16 of 16