[2022] KEHC 1286 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL SUIT NO. 46 OF 2019

PAUL MWANIKI GACHOKA...................................................................1ST PLAINTIFF

PAUL MWANIKI GACHOKA & RAPHAEL NDIRANGU

T/A MWANIKI GACHOKA & CO. ADVOCATES.................................2ND PLAINTIFF

VERSUS

NATION MEDIA GROUP LIMITED....................................................1ST DEFENDANT

WANJOHI GITHAE...............................................................................2ND DEFENDANT

JUDGMENT

1. The 1st and 2nd plaintiffs in the present instance lodged a suitagainst the 1st and 2nd defendants vide the plaint dated 3rd March, 2019 and sought for the following reliefs:

a. A permanent injunction restraining the defendants by themselves or by their agents, servants and employees or otherwise howsoever from publishing and/or making disparaging and/or defamatory words and remarks as regarding the plaintiffs on the transaction relating to the property known as Land Reference No. 29123 (Formerly L.R. No. 4927 (I.R. 1213) or in any way whatsoever.

b. An order directing the 1st defendant to make and publish an apology to the plaintiffs through the Sunday Nation and the Daily Nation newspapers.

c. A mandatory injunction directing the 1st defendant by itself or by its agents, servants and employees or otherwise howsoever to forthwith remove and pull down from the 1st defendant’s website the defamatory publications on the plaintiffs which was published on 24th February, 2019.

d. Damages for libel.

e. Damages for injurious and malicious falsehood.

f. Aggravated damages for libel, injurious and malicious falsehood.

g. Costs of the suit.

h.Interest on (d), (e), (f) and (g) above.

2. The plaintiffs pleaded in their plaint that on 24th February, 2019 the 2nd defendant in his capacity as an employee/agent of the 1st defendant published on page 9 of the Sunday Nation Newspaper and in the website namely http://www.nation.co.ke/ the following defamatory publication concerning them and in respect to the property known as Land Reference No. 29123 (Formerly L.R. No. 4927 (I.R. 1213) (“the property”):

“EACC Link in Sh. 8Bn Land Scam” and “Law Firm tied to Commissioner implicated in Fraudulent Transactions”

“…It emerged that both the Ethics and Anti-corruption Commission (EACC) and DCI have had the same complaint filed with them previously, but little progress was made prompting the complaint to go directly to ODPP for intervention.

In June 2018, details of the alleged fraudulent transactions were reported to the EACC but no action was taken. A similar complaint was reported to the DCI August, 2018 but is unclear whether any investigations were undertaken.

…the saga revolves around 302 acres prime property located on both sides of the Northern by-pass near Kamiti in Nairobi. The law firm is implicated on two accounts, the fraudulent acquisition of the land and payment of compensation money by the Roads Ministry to a company registered unprocedurally.”

3. The plaintiffs pleaded in their plaint that the defendants further made the following defamatory and malicious publication:

“The land in question belonged to former provincial commissioner John Godhand Mburu who died in 1981.

The deceased had acquired the land in May1974.

All was well until around 2010 when the land was “sold” and part of it hived off for the construction of Western by-pass and compensation paid to a strange company.

The remainder of the land later changed hands before being subdivided into small plots and sold to unsuspecting buyers.”

4. It is pleaded in the plaint that the aforesaid statements could in their natural and ordinary meaning, be taken to infer that they are criminals, fraudsters, dishonest and corrupt, to mention a few.

5. It is also pleaded in the plaint that as a result of the aforesaid defamatory statements, their reputation was brought to question and that they suffered ridicule and humiliation in the eyes of the public.

6. The plaintiffs pleaded that the impugned statements were actuated by malice and were circulated in various other platforms, including social media platforms such as Facebook and Twitter.

7. The plaintiffs also pleaded that on 23rd February, 2019 the 2nd defendant contacted the 1st plaintiff in respect to the aforementioned statements prior to their publication at the time, and that despite the latter clarifying the correct position on the same, the 2nd defendant ignored the sentiments by the 1st plaintiff and instead went ahead to publish the defamatory statements as they are.

8. It is pleaded in the plaint that despite being served with a demand letter on 1st March, 2019 the 1st defendant continued to publish defamatory publications against the plaintiffs on its website.

9. Upon being served with summons, the 1st and 2nd defendants entered appearance and put in their joint statement of defence dated 22nd July, 2019 to deny the assertions made in the plaintiffs’ claim.

10. In their statement of defence, the defendants while admitting to making the publications stated in the plaint, deny that the same are defamatory of the plaintiffs, stating instead that the said publications are an accurate representation of the contents borne in the complaint made to the EACC and based on the findings drawn by the 2nd defendant upon exercising due diligence.

11. At the hearing, the 1st plaintiff testified and called two (2) additional witnesses, while the 2nd defendant gave evidence for the defence case.

12. In his chief testimony, the 1st plaintiff stated that he is an advocate of the High Court of Kenya having been admitted to the bar in the year 1991 and proceeded to adopt his executed witness statement as evidence and to produce his bundle of documents as P. Exh 1-19.

13. The 1st plaintiff stated that he is currently a Commissioner with EACC and that he also served in an official capacity in various bodies.

14. The 1st plaintiff gave evidence that during his time as a professional and prior to the impugned publications, he has never received any adverse reports from any of the relevant bodies and that he runs the 2nd plaintiff in an honest and genuine manner.

15. It is the evidence of the 1st plaintiff that on 23rd February, 2019 he received communication from a colleague informing him that a journalist had been making inquiries on allegations of fraud and that shortly thereafter, he received a call from the 2nd defendant alleging that he was involved in a land scandal pertaining to the property, adding that the 2nd defendant later followed with a text message indicating that he will publish the material to that effect.

16. It is also the evidence of the 1st plaintiff that subsequently, he started receiving communications regarding the defamatory article associating his name and the name of the 2nd plaintiff in the supposed land scandal.

17. The 1st plaintiff stated that he is not aware of any complaint that had been made against him or the 2nd plaintiff and that even upon serving the defendants with a demand letter, no apology was made or retraction effected; instead, the defendants republished the defamatory material against the plaintiffs.

18. In cross-examination, the 1st plaintiff stated that a further publication was made following the filing of the instant suit, and further stated that his law firm undertook a clear transaction in respect to the property.

19. The 1st plaintiff denies that the impugned publication was an accurate representation of any reports made to the EACC and states that any responsible journalist or media house would have first sought clarification on the allegations before moving to publish defamatory material.

20. It is the testimony of the 1st plaintiff that following the publication, he lost some of his arbitration matters and that business also went down as some of his clients became wary of him.

21. It is equally his testimony that the defamatory material was republished a day after the demand letter was served upon the defendants.

22. In re-examination, the 1st plaintiff stated that he was not asked to provide the defendants with any documentation prior to the making of the publication and that the 2nd plaintiff is not mentioned in the letter issued by the ODPP, neither was he made aware of any complaint against him.

23. The 1st plaintiff also stated that the documents relied upon by the defendants do not point to or establish any fraud on his part or on the part of his law firm, the 2nd plaintiff.

24. Raphael Ndirangu Gachoka who was PW2 began his evidence by stating that he is the Managing Partner of the 2nd plaintiff and by adopting his signed witness statement as evidence before this court.

25. In cross-examination, he restated the assertion made by the 1st plaintiff that at the time of filing the suit, a second defamatory publication had been made by the defendants and that the defendants ought to have sought clarification before publishing the defamatory material to begin with.

26. In re-examination, PW2 gave evidence that the letter issued by the ODPP makes no allegations of fraud.

27. Eric Okong’o who was PW3 adopted his executed witness statement as his evidence-in-chief.

28. In cross-examination, the witness stated that he has served with the 1st plaintiff in the Law Society of Kenya (LSK) and that he was shocked upon reading the impugned article and thought that the same had brought disrepute to the legal profession and destroyed the character of the plaintiffs. This marked the close of the plaintiffs’ case.

29. The 2nd defendant on his part adopted his signed witness statement as evidence and produced his bundle of documents as D. Exh 1-14.

30. He then stated that upon receiving information regarding the alleged fraud, he sought clarification from the 1st plaintiff, to no avail. That he then sought further information from the Chairman of EACC who insisted that he contact the 1st plaintiff.

31. In cross-examination, it was his testimony that he is an investigative reporter with years of experience and that he is aware that the provisions of the Media Council Act require the publication of fair and accurate information by the media.

32. It was also his testimony that upon receiving an anonymous letter dated 22nd June, 2018 relating to the alleged fraud, he began his investigations which lasted a period of three (3) months and that he wrote the impugned article with the approval of the editors of the 1st defendant.

33. The 2nd defendant testified that going by his investigations, the 1st plaintiff was a person of interest and that on trying to call him, the 1st plaintiff did not answer, which led him to leave a text message.

34. The 2nd defendant stated that he did not contact the other partners of the 2nd plaintiff since his focus was on the 1st plaintiff.

35. The 2nd defendant further stated that the letter issued by the ODPP made no mention of the plaintiffs.

36. In re-examination, it is the evidence of the 2nd defendant that it was mandatory for the impugned publication to be made on the scheduled date and that there is nothing to indicate that the material published is false and that he could have included further information had the same been provided to him.

37. At the close of the evidence, the parties were directed to put in written submissions. Going by the record, it is apparent that at the time of writing this judgment, this court only had the submissions by the defendants. It is also apparent that the submissions by the plaintiffs were not traceable from the online portal and hence this court could not make direct reference to them.

38. By way of their submissions dated 14th January, 2022 the defendants argue that the plaintiffs have not shown the manner in which the words complained of are defamatory in nature since the defendants have demonstrated that the said words are drawn from an article whose contents are substantially true and based on complaints made to EACC.

39. The defendants further argue that the words complained of are a fair comment on a matter of public interest and are factual in nature, being based on complaints of land fraud.

40. It is the submission by the defendants that the plaintiffs have not shown the manner in which their reputation has been lowered as a result of the publications in question and cites inter alia, the case of Daniel N. Ngunia V K.G.G.C.U. Limited [2000] eKLR in which the Court of Appeal held that:

“…we note from the record that the appellant was the only person who testified in support of his claim. In those circumstances, we cannot see how a claim based on defamation could have possibly succeeded even in the absence of the defence of qualified privilege.”

41. On quantum, it is the contention of the defendants that the plaintiffs are not entitled to the reliefs sought in the plaint, going further on to contend that should this court arrive at a different finding, then an award of nominal damages would suffice.

42. Consequently, the defendants urge this court to consider inter alia, the following awards made:

a. In the case of Eric Gor Sungu v George Odinga Oraro [2014] eKLR the court awarded general and aggravated damages in the respective sums of Kshs.5,000,000/= and Kshs.4,000,000/=.

b. The court in the case of Nelson Havi v Headlink Publishers Limited [2018] eKLR awarded the plaintiff the sums of Kshs.5,000,000/= and Kshs.1,000,000/= on general and aggravated damages respectively.

43. Upon considering the evidence tendered and the competing submissions together with authorities relied upon, I find the following to be the issues arising for determination:

i. Whether the plaintiffs have made a case for defamation against the defendants;

ii. Whether the defences of truth/justification and fair comment are available to the defendants; and

iii. Whether the plaintiffs are entitled to the reliefs sought.

44. In addressing the foremost issue, I turn my attention to the case of Samuel Ndungu Mukunya v Nation Media Group Limited & Another [2015] eKLR wherein the court aptly laid out the ingredients to be proved in a defamatory claim as follows:

a. The libel must be published by the defendant.

b. The published words must refer to the claimant.

c. The statement as published must be false and defamatory of the plaintiff.

d. The publication was malicious.

45. From my analysis of the pleadings and evidence placed before me, I established that it is not in dispute that the impugned publications were made by the 2nd defendant as an employee of the 1st defendant, and that the same made reference to the plaintiffs. I am therefore satisfied that the plaintiffs have satisfied the first and second ingredients for defamation.

46. On the third ingredient to do with whether the publication was false and defamatory of the plaintiffs, I considered the definition of what constitutes a defamatory statement as demonstrated by the Court of Appeal in the authority of S M W v Z W M [2015] eKLRthus:

“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.”

47. The courts have unanimously held that in order to determine whether a statement or publication is defamatory, one must seek to discover the meaning conveyed by the words in question to an ordinary/reasonable person.

48. In their plaint, the plaintiffs set out the natural and ordinary meaning of the words associated with the impugned publication in the manner indicated earlier in this judgment.

49. Upon considering the same alongside the contents of the publication in question, I am convinced that the plaintiffs have demonstrated the manner in which the publications could be inferred in the mind of the ordinary man and consequently lowered their reputation in the minds of members of the public.

50. On a similar note, in addressing the defendants’ position that the evidence of PW3 was not sufficient in ascertaining the manner in which the reputation of the plaintiffs was brought to ridicule and lowered, I opine that the plaintiffs would succeed in their claim so long as they are able to demonstrate how a reasonable person would receive the defamatory publication, which has been done. In so finding, I borrow from the Court of Appeal’s rendition in the recent case of Miguna Miguna v Standard Group Limited & 4 others [2017] eKLR where it held thus:

“By holding that the appellant needed to call witnesses to prove that the story was viewed and read as published, the learned Judge placed too high a standard on the part of the appellant whose duty did not extend beyond the usual standard in a civil case such as the one that was before her to prove the case on a balance of probabilities. We are of the respectful opinion that the appellant proved the case to the required standard.”

51. In the absence of any credible evidence to the contrary, I am therefore satisfied that the plaintiffs have proved that the publication is defamatory against them.

52. On the ingredient of malice, while it is apparent that the 2nd defendant reached the 1st plaintiff on phone, it is also apparent that a day later, the impugned publication was made by the 2nd defendant without granting the 1st plaintiff sufficient opportunity to properly respond to the serious allegations made against him and his law firm in the publication or without demonstrating that he had gathered enough credible evidence to support the making of the publication.

53. In his evidence, the 2nd defendant admitted having failed to contact any of the other partners in the 2nd plaintiff law firm in order to verify the veracity of the allegations before proceeding to publish the material in question.

54. In other words, the defendants have not shown by way of credible evidence that the decision to publish the impugned material was made in good faith and upon the exercise of due diligence and the carrying out of thorough investigations. I am therefore satisfied that the plaintiffs have proved that the impugned publication was actuated by malice.

55. In so finding, I am persuaded by the following decision adopted by the court in the case of Phinehas Nyagah v Gitobu Imanyara [2013] eKLRthus:

“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.”

56. In the premises, I find that the plaintiffs have proved their claimfor defamation against the defendants.

57. On the second issue concerning whether the defences of truth/justification and fair comment are available to the defendants, having already found that the defendants did not bring any credible evidence to show that the impugned publications were based on truthful and verifiable facts, I see no need to dwell any further on the subject of truth/justification.

58. On the defence of fair comment on a matter of public interest, in order for the defendants to succeed, they would be required to meet the following threshold set out in the case of Jacob Mwanto Wangora v Hezron Mwando Kirorio [2017] eKLR thus:

“In Peter Carter – Rucks Treatise on Libel and Slander stated as follows:

“…For the defence of fair comment to succeed it must be proved that the subject matter of the comment is a matter of legitimate public interest; that the facts upon which the comment is based are true and that the comment is fair in the sense that it is relevant to the facts and in the sense that it is expressed of the honest opinion of the writer.”

59. Upon my examination of the pleadings, material and evidence on record, I find that the defendants have not satisfied me that the impugned statements were derived from true facts for which they were merely giving an opinion.

60. Consequently, I am of the view that the defences pleaded above are not available to the defendants, in the absence of proof to support the same.

61. This brings me to the third issue for determination, on the reliefs sought by the plaintiffs.

62. On general damages for libel, I considered the professional standing of the 1st plaintiff who going by his testimony and supporting evidence, is an advocate of the High Court of Kenya with a well of experience in the legal field. I also took into account his evidence that he is a founding partner of the 2nd plaintiff law firm which has also been in existence for a number of years.

63. I have considered the authorities cited by the defendants and referenced hereinabove under this head. I also considered the case of Miguna Miguna v Standard Group Limited & 4 others [2017] eKLR in which the Court of Appeal upheld an award of Kshs.5,000,000/= made under this head, and the more recent case of Michael Kamau Mubea v Nation Media Group Limited & 2 others [2019] eKLRin which this court awarded a sum of Kshs.7,000,000/= on general damages to a plaintiff who was both a lawyer and a journalist. I find an award of Kshs.8,000,000/= to be reasonable for each of the plaintiffs, in the circumstances.

64. On aggravated damages, it is apparent that no formal apology was made by the defendants in a bid to mitigate the damage already occasioned particularly to the reputation of the plaintiffs, noting that the impugned publication had a wide circulation. I am therefore satisfied that the plaintiffs are each entitled to an award of aggravated damages.

65. On damages for injurious and malicious falsehood, in the absence of any credible evidence or facts to support the granting of the same, I decline to make any award under that head.

66. Concerning the prayer for permanent and/or mandatory injunctions, upon considering the foregoing circumstances, I will allow the same.

67. I am also satisfied that the plaintiffs are entitled to an apology.

68. In the end, judgment is hereby entered in favour of the 1st and 2nd plaintiffs and against the 1st and 2nd defendants jointly and severally as follows:

i. A permanent injunction be and is hereby issued restraining the defendants by themselves or by their agents, servants and employees or otherwise howsoever from publishing and/or making disparaging and/or defamatory words and remarks as regarding the plaintiffs on the transaction relating to the property known as Land Reference No. 29123 (Formerly L.R. No. 4927 (I.R. 1213) or in any way whatsoever.

ii. An order be and is hereby issued directing the 1st defendant to make and publish an apology to the plaintiffs through the Sunday Nation and the Daily Nation newspapers within a period of 45 days from the date hereof.

iii. A mandatory injunction be and is hereby issued directing the 1st defendant by itself or by its agents, servants and employees or otherwise howsoever to forthwith remove and pull down from the 1st defendant’s website the defamatory publications on the plaintiffs which was published on 24th February, 2019 within a period of 45 days from the date of this judgment.

iv. Damages for libel Kshs.8,000,000/= (for each plaintiff)

v. Aggravated damages in the sum of Kshs.2,000,000/=(for each plaintiff)

Grand Total for each plaintiff Kshs.10,000,000/=

vi. The plaintiffs shall each have costs of the suit and interest on the total award of Ksh.10,000,000/= each at court rates from the date of judgment until the date of payment full.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 17TH DAY OF MARCH, 2022.

………….…………….

J. K. SERGON

JUDGE

In the presence of:

……………………………. for the 1st and 2nd Plaintiffs

……………………………. for the 1st and 2nd Defendants