[2021] KEHC 8185 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

CIVIL APPEAL NO. 22 OF 2019

PATRICK LANG’AT............................................................1ST APPELLANT

NATION MEDIA GROUP LIMITED................................2ND APPELLANT

VERSUS

SAMWEL OTIENO ODERA............................................1ST RESPONDENT

MILDRED MIRIAM OMONDI..................................... 2ND RESPONDENT

FACTOR CONNECT LTD............................................. 3RD RESPONDENT

[Being an appeal arising from the Judgment of the Hon. W. k. Onkunya (SRM)

delivered in Kisumu CMCC No. 451 of 2016 on 6th February 2017]

JUDGMENT

The Appellants, PATRICK LANG’ATand NATION MEDIA GROUP LIMITED were held liable for the defamation of the Respondents, SAMWEL OTIENO ODERA, MILDRED MIRIAM OMONDIand FACTOR CONNECT LIMITED, following the publication of an article on an online platform known as NAIROBI NEWS BLOG.

1. The trial court awarded to the Respondents the sum ofKshs 2,000,000/= as General Damages, andKshs 1,500,000/= as Exemplary Damages.

2. The Respondents were also awarded the costs of the suit, plus interest at court rates, from the date of judgment until payment in full.

3. Being dissatisfied with the judgment, the Appellants lodged an appeal to the High Court citing eight Grounds of Appeal. I find that the said Grounds of Appeal may be summarized as follows;

(i)The trial court failed to evaluate theevidence exhaustively and/or cumulatively.

(ii)Defamation was not proved as the articlecomplained of was true in most parts.

(iii)In any event, the article only referred tothe 3rd Respondent.

(iv)The article in issue contained allegationsin a corruption case in respect of whichthe respondents were eventually acquitted.

(v)The trial court failed to consider thecircumstances which mitigated any awardof damages payable to the respondents.

(vi)The trial court failed to consider theappellants’ submissions.

(vii)The Damages awarded were manifestlyor inordinately high.

4. Based on the said grounds of appeal, the Appellants asked this court to set aside the judgment of the trial court.

5. In the alternative, the Appellants asked this court to review, vary or reduce the award of damages, so that the same is brought in line with relevant decisions.

6. Finally, the Appellants asked the court to award them costs of the appeal and also of the suit.

7. Being the first appellate court I am enjoined by law to carry out a fresh comprehensive evaluation of all the evidence on record.

8. First, it is common ground that the Appellants published the article in contention. The said article was in the following words;

“How Kisumu Speaker Took Husband to‘Honeymoon Trips Using County Funds.’Kisumu Assembly Speaker, Ann Adul is

on the spot for taking her husband ElijahAdul on three ‘honeymoon trips’ paidfor by funds from the county assembly.

These are part of the accusationsleveled against her during the hearingof a case in which she is chargedalongside six others on Tuesday.

Ms Adul is said to have used her positionas chairperson of the County AssemblyService Board to Single source for thetrips using a proxy company, FactorConnect.

The prosecution said that Ms Adul tookher husband to Singapore, China andIsrael at a total cost of Shs 17. 4 Millionalongside a section of MCAs.

Mr. and Mrs. Adul were present in allthe trips by different committees of theHouse.”

9. In the event, I hold the considered opinion that only 3 issues arise from the grounds of appeal: the same are;

(1) Whether or not there was Defamation.

(2) If the answer to (1) is in the affirmative,did it relate to all the 3 respondents oronly to the Company?

(3) Was the award of Damages manifestlyor inordinately high?

1. Was there Defamation?

10. The Appellants reiterated that the Defence of justification provided an adequate defence, as the publication was made on an occasion of qualified privilege.

11. It was a statement concerning court proceedings which were going on; and the case was one that was of public interest. Therefore, the Appellants submitted that they were under a social and moral duty to publish the said words to members of the public, who had a like duty or interest to receive them.

12. It is common ground that the defence of justification or qualified privilege is a complete defence to an action founded on defamation. Section 6of the Defamation Actprovides as follows;

“A fair and accurate report in anynewspaper or proceedings heard beforeany court exercising judicial authoritywithin Kenya shall be absolutelyprivileged provided that nothing in thisSection shall authorize the publicationof any blasphemous, seditious or indecentmatter.”

13. Clearly, for a publication to constitute an absolute defence to a claim founded upon defamation, it must be a fair and accurate report.

14. When a statement was factually accurate, it cannot lower the reputation of the person about whom it is spoken or written. That which is factually accurate is a true reflection of said person.

15. If a person is a thief, and he is called a thief, he cannot seek compensation; and that is because he would have been described fairly and accurately.

16. At paragraph 37 of their submissions the Appellants submitted thus;

“My Lord, the Plaintiffs/Respondentswere already painted as corrupt andtheir reputation already suffered bythe fact that they were charged underthe Ethics and Anti-Corruption Courtwith offences of conspiracy to defraudand fraudulent acquisition of publicproperty through facilitation of threeinternational trips, notwithstandingthat the prosecution had to prove thecase against them.”

17. I was simply astounded at the audacity of that pronouncement! I am unable to fathom how the fact that a person has been charged with a criminal offence, of itself, causes his reputation to suffer.

18. I find that even the Appellants themselves are not convinced that that submission has a sound legal foundation. I so find because at paragraph 42 of their submissions they said;

“My Lord, the matter being criminal,any ‘reasonable person’ knew that thePlaintiffs/Respondents were presumedinnocent until proven guilty and thatthe article rested with the outcome ofthe Ruling.”

19. If any reasonable person knew that the Plaintiffs/

Respondents were presumed innocent until proven guilty, it cannot then be true that their reputations had suffered simply because they were on trial for alleged criminal offences.

20. The 1st Appellant was, during the proceedings in the criminal case against the Respondents, (together with other accused persons), convicted in relation to the words he had used in the publication dated 8th October 2015.

21. He was then sentenced to pay a fine of Kshs 1,400/=, or in default, he was to serve 10 days imprisonment.

22. At the material time, the record of proceedings shows the 1st Appellant as saying;

“The word ‘proxy’ gives a wrongimpression.”

23. It is then, that the learned trial magistrate pronounced herself thus;

“Mr. Langat stated that he misreportedcourt proceedings. I will have no optionsave to invoke provisions of Section 121of the Penal Code Cap. 63 Laws of Kenya,which relates to offences in judicialproceedings.”

24. It is within that context that the 1st Appellant was convicted and fined.

25. At paragraph 16 of their submissions, the Appellants said that the 1st Appellant;

“…. was admonished and apologized inopen court for ‘misreporting’, andbesides, the Plaintiffs/Respondents, andin particular the 3rd Plaintiff/Respondentdid not suffer any loss or damage as aresult.”

26. I carefully perused the record of the proceedings before the trial court. I note that the 1st Appellant first said the following about the reporting of 8th October 2015;

“I state that I abide by the statement ofthe Nation and Media Council.”

27. In other words, the 1st Appellant did not see anything wrong, initially.

28. However, he went on to;

“……. plead with the court if wordsmight have been erroneous.

The error will not be repeated.”

29. In other words, the 1st Appellant ultimately admitted that there was an error. He said that the error would not be repeated.

30. However, I did not find any apology from either of the Appellants.

31. More significantly, the Appellants did not lodge any appeal against the decision of the learned trial magistrate. In the circumstances, it follows that it is not open to the appellants to contradict the findings which have not been challenged by an appeal.

32. At any rate, the Appellants conceded, at paragraph 32 of their submissions that the use of the word ‘proxy’amounted to a misreporting.

33. By that concession, the Appellants are deemed to have also admitted that the report was not factually correct, because if it had been factually accurate, it would not have been a misreporting.

34. It therefore follows that the Appellants failed to demonstrate how they could benefit from the provisions of Section 6 of the Defamation Act.

35. In the case of UHURU M. KENYATTA V. BARAZA LEORNAD [2011] eKLR Rawal DCJ held as follows;

“While taking the defence of justificationor qualified privilege in the defamationcase, the defendant was required by lawto establish the true facts and the plaintiffhas no burden to prove the defence raisedby the defendant. Once verified, thejustification or qualified privilege doesinsulate the defendant, and in any event,the onus that the same is true, rests on thedefendants, to make it a fair publication.”

36. I can only add that that which is not shown to be factually accurate cannot, at the same time, be construed as fair.

37. I hold the considered view that when the 3rd Respondent (“the Company”) was referred to as a proxy of persons facing criminal charges, that implied the said Company had held itself out as having authority for and behalf of those other persons, whilst in fact the Company had no such authority.

38. PW2testified that through the use of the word “proxy”;

“It also comes out that the companybelonged to Anne Adul and was notour company.”

39. The article said that Ms Adul used her position as chairperson of the County Assembly Service Board to single source for the trips using a proxy company, Factor Connect.

40. PW1testified that that implied that the company

“…. M/s Adul sourced for, conspiredof this 15. 4 Million to facilitate the3 international trips.”

41. In my considered view, a company that allows itself to be used as a proxy, by someone who does not own it; and which then enables that person to commit an offence is dubious.

42. Therefore, the article in question was definitely dematory.

2. Who was defamed?

43. The article named the 3rd Respondent only.

44. In the case of HON. MWANGI KUNJURI Vs WANGETHI MWANGI & 2 OTHERS CIVIL APPEAL NO. 221 OF 2012, the Court of Appeal said;

“26. For defamation to succeed, thestatement must be published of andconcern the claimant.”

45. The Court made it clear that words were not actionable as defamatory unless they were published of and concerning the Plaintiff.

46. However, the said Court also made the following point, regarding the question about whether or not the Plaintiff can only bring an action for defamation if he was named in the article;

“It is not essential that the plaintiffmust be named in the defamatorystatement: where the words do notexpressly refer to the plaintiff theymay be held to refer to him if ordinarysensible readers with knowledge of thespecial facts could and did understandthem to refer to him (See Morgan V Odhams Press Ltd [1971] 2 All E.R. 1156). Suchspecial facts are material facts which must be pleaded in the plaint and mustbe proved in evidence in order to connectthe plaintiff to the words complained of.

Such pleading is often referred to as‘reference innuendo’ in contrast to a‘true innuendo’ where the extrinsicfacts only bear on the defamatorymeaning.”

47. In this case the Plaintiffs did not plead any reference innuendo. The Plaint made reference to the “natural and literal meaning” of the words in issue.

48. In any event, the Plaintiffs did not prove any reference innuendo.

49. Accordingly, it is only the 3rd Respondent which was defamed.

3. Quantum of Damages

50. It is well settled that the appellate court shall not reverse the award of damages which was granted by the trial court unless it is shown that the trial court either took into account irrelevant factors or failed to take into account some relevant factors.

51. The Appellants have submitted that the Respondents ought to have been granted only nominal damages.

52. The grounds for that submission are that the Appellants did not lead any evidence to prove that they suffered any loss or harm attributable to the defamatory article.

53. I was invited to rely on the case of NATION NEWSPAPERS LIMITED Vs LYDIA CHESIRE, CIVIL APPEAL NO. 26 OF 1982, to award Kshs 100,000/=.

54. In that case, the trial court awarded Kshs 15,000/=, but that sum was reduced by the appellate court, to Kshs 1,000/=, in the year 1984.

55. But the Appellants also appreciate that;

“71. My Lord, this is because althoughlibel is actionable per se and the courtmay presume that a plaintiff has sufferedharm as was stated in the MohammedNasoro Dima Vs Mohamed Omar Soba [2013] eKLR, the degree of such harm mustas of necessity be proved.”

56. The Appellants appear to be mixing up issues, when they concede that libel is actionable per se, yet they go on to urge that the Plaintiff must prove the degree of the harm he suffered.

57. In my understanding, when it is said that libel is actionable per se, (in relation to the aspect of compensation) it implies that the Plaintiff is not required to prove that he suffered any damages, in order to either have a cause of action or in order to be awarded compensation.

58. In this case, the Appellants did not publish any apology. If anything, as I alluded to earlier, the 1st Appellant expressed the view that they were not at fault.

59. Even in their current submissions, the Appellants still stated that DW1was admonished for “misreporting”.

60. By putting the word ”misreporting” in quotation marks, the Appellants are saying that they still did not believe that their action constituted misreporting.

61. Bearing in mind that the fact that the 1st Appellant was convicted for the said misreporting, I hold the view that the Appellants continued rejection of a finding made by the trial court, and which was not challenged by an appeal, is indicative of the Appellants’ attitude.

62. In my considered view, the said attitude is sufficient basis to justify the award of both the General Damages and the Exemplary Damages granted by the trial court.

63. Accordingly, the appeal is dismissed, save for the fact that the Judgment in favour of the 1st and 2nd Respondents is set aside.

64. The Appellants will pay to the 3rd Respondent, the closts of the appeal.

65. However, as regards the 1st and 2nd Respondents, they will pay costs of the appeal, to the Appellant.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 3RD DAY OF MARCH 2021

FRED A. OCHIENG

JUDGE