[2017] KEHC 4057 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL CASE NO. 275 OF 2014

PENINAH WAMBUI ......................................................1ST PLAINTIFF

STEPHEN KIMANI .......................................................2ND PLAINTIFF

-V E R S U S –

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

MARGARETTA WA GACHERU................................2ND DEFENDANT

JUDGEMENT

1) Peninah Wambui and Stephen Kimani, the 1st and 2nd plaintiff respectively herein filed this suit on 10th September 2014 seeking for general and aggravated damages on a claim against the defendant for alleged defamation, based on a story published on 19th January 2014 in the Sunday Nation Newspaper issue.

2) On the 19th of January 2014 at page 3 of the Sunday Nation issue of the said newspaper, the defendant’s falsely and maliciously printed and published or caused to be written, printed and published of and concerning the plaintiff the words following that is to say “crime of the west stalks Kenya as oil painting vanish.”

3) Interlocutory judgment was entered on 17th February 2015 and the matter proceeded for formal proof hearing on 8th February 2017. During the formal proof hearing, both plaintiffs were led in their examination in chief and cross-examined by the defendants’ counsel. The said publication was clearly brought out in the plaint and also produced as evidence before the court during formal proof hearing.

4) When the suit came up for hearing, the plaintiff’s case was supported by the evidence of two witnesses namely; Peninah Wambui PW1 and Sephen Kimani PW2.

5) The 1st to take the witness stand was Peninah Wambui (PW1) who stated that she will rely on documents in her list of documents as exhibits in evidence as well as her signed witness statement whose contents she adopted as her evidence. PW1 stated that in 2011 she was the proprietor of a guest house in village market in Gigiri. She came to know of the newspaper story through her family and friends, which newspaper article was produced in court as exhibit PExh 1. The said publication is said to have affected her business, in that many diplomats moved out of her guest house and influenced others not to do business with her. PW1 further stated that as a result of the publication, her business went down, her landlord refused to renew the lease. PW1 said that she demanded for an apology from the defendants, when the alleged stolen item (oil painting) was found three days before the publication, which apology was not effected by the defendant, prompting the plaintiffs to institute this suit.

6) PW1 was cross examined by Miss Kemunto, learned advocates for the defendants and she stated that she had been given a lease to last upto 2014 (for the guest house in Gigiri) and that the said Mr. Koffi Osei Wadu whose paintings had been alleged to be stolen and later recovered was a client in PW1’s business. PW1 further stated that she wrote a demand notice to the defendants to tender an apology, which was not done. PW1 continued to state that the loss of the painting was investigated by Gigiri police station and the said newspaper article speaks of the loss of paintings which were later found 3 days before the publication. Further, that her reputation was damaged and she lost her business. PW1 finally on cross-examination said that she had not produced any statements of account to show the profit and loss of her business.

7) PW1 was re-examined by Miss Gacheru and she clarified the facts as stated in her written statement and in cross- examination.

8) Stephen Kimani (PW2) told this court that he is a businessman doing car hire service. He adopted the contents of his witness statement as his evidence. He further stated that he wishes to rely on the email attached to the supplementary list of documents marked DMF3, as well as the newspaper report marked as PExh 2. PW2 stated that the newspaper report affected his taxi business. He said he was treated as a liar and a dishonest person. This caused his clients to pull out causing him heavy losses forcing him to undertake other businesses. PW2 was also cross examined by Miss Kemunto where he stated that before 2014, he was running his own business and used to get referrals. PW2 further stated that the alleged lost paintings belonged to Mr. Koffi Osei Wadu who was a client in the business of the 1st plaintiff as well as his friend. PW2 stated that he used to pick Mr. Koffi and his luggage to and from the Village Market guest house. That before Mr. Koffi left, Kenya to Switzerland, he left his painting to be transported at a later time by PW2. It was until he heard that there was a newspaper article about a lost painting that he was made aware of the theft. PW2 stated that he was called by Mr. Koffi on 17th January, 2014 to tell him that the paintings had been found. This is when he called PW1 to inform her of the same. PW2 later went to Gigiri police station where he was informed that Mr. Koffi Osei Wadu had called them about the paintings. PW2 further stated that he was not presented with any statement of profit and loss of his business. PW2 went ahead to state that he wrote a demand notice to the defendants demanding an apology, which was not done. Further that the article alluded that there was an alleged theft of oil paintings. The investigations by the police were in respect of loss of paintings, he was a subject of investigation over the alleged loss.

9) At the close of evidence, parties were invited to file written submissions. All parties filed written submissions which I have considered together with the authorities cited. The issues that this court has to determine therefore are; whether or not the plaintiffs were defamed by the defendants’ publication. Secondly, whether or not the plaintiffs are entitled to the award of damages and if yes how much?

10) For purpose of deciding a case for defamation, the court is called upon to consider the essentials of the tort generally and to see whether these essentials have been established or proved. It is common ground that in a suit for defamation, the plaintiff must prove;

i. That the matter of which the plaintiff complains is defamatory in character.

ii. That the defamatory statement or utterance was published by the defendants publication in the sense of defamation which means that the defamatory statement was communicated to someone other than the plaintiff defamed,

iii. That it was published maliciously

iv. In slander, subject to certain exceptions, that the plaintiff has suffered special damage.”

11) It is with the above in mind, in the submissions of both parties that this is trite law. The plaintiff further relied on the case of Kennedy Nyakundi –vs- TJackson Ongubo & Another (2016) eKLR,in support of the prepositions above, while the defendant’s relied on the case of Whycliffe A. Swanya –vs- Toyota East Africa Ltd & Another Civil Appeal 70 of 2000 (2009)

12) The plaintiffs in their submissions stated that the defendant’s publication targeted them. The words published by their natural meaning or by way of innuendo and necessary implication were understood to mean that the plaintiffs were presumed to be untrustworthy and dubious, and were involved in the racket involving the disappearance of the paintings. The article mentioned the name “Peninah a proprietor of a guest house near the village market mall in Gigiri and Peter Kimani (Mr. Koffi’s driver)”

13) The plaintiff continues to state that the defendants have not adduced any evidence to prove that the contents of the publication are true. For this reason the defendants liable.

14) The defendants submitted that there was no proof of actual or inferred of malice by them in publishing the said article. That the plaintiffs had the onus to proof actual malice, ill will or spite or any direct or improper motive in the mind of the publisher at the time of the publication. It was further stated by the defendants that the plaintiffs did not produce before court evidence that the paintings were found and that the said information communicated to the defendants 3 days prior to the date of publication of the said article. The defendants argue that this evidence would have been crucial in determining the issue of liability.

15) Whether the plaintiffs are entitled to the orders sought. It is the Plaintiffs’ submission that damages for defamation are usually at the discretion of the court. The particulars of defamation pleaded and proved is libel. The plaintiffs need not to prove actual damage to their character and reputation to be entitled to damages. The plaintiffs relied on the case of Uren –vs- Jolum Fair fax and Sons Ply Ltd 117 CLRY 15,150 where it was held inter alia:

“It seems to me that properly speaking a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in 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 a consolation to him for wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money.”

16) The court in assessing damages is guided by the Defamation Act Kenya Cap 36 Section 16A, which provides for the base minimum amount to be awarded:

“In any action for libel, the court shall assess the amount of damages payable in such amount as it may deem just, provided that where the libel is in respect of an offence punishable by death, the amount assessed shall not be less than one million shillings, and where the libel is in respect of an offence punishable by imprisonment for a term of not less than 3 years the amount assessed shall not be less than four hundred thousand Kenya shillings.”

17) In essence, the court is obliged to consider inter alia the extent of publication. A libel published to millions has a greater potential to damage than a libel published to a handful of people. In the case of the plaintiff herein, it has emphatically been argued and reiterated that the article was published by a major local newspaper with a wide circulation.

18) It is important that the assessment of compensatory damages be informed by the distress and humiliation which the defamatory publication has caused the plaintiffs. The quantum of such damages will depend upon the seriousness of the libel and any actual, proved damage that the same may have caused the plaintiffs.

19) The Defendants on the other hand submitted that the quantum of damages must also depend on the evidence on record so that where the plaintiffs are unable to prove that as a result of defamation they suffered loss, the damages awardable are nominal. The Defendant relied on the case of Rossely Olivia Adero and Another –VS- Devsia Still Mills Limited and Another Nairobi HCCC 41/2003.

And further relied on the case of John-VS- Man Ltd (1966)1 ALLER 35 where it was reiterated that it is trite law that an award of damages should not enrich a party but restore the said party to the position he was before the alleged award.

20) On exemplary and punitive damages, the Defendants beseeched the court to award them Kshs.1,500,000/- on grounds that the Defendants did not publish an apology, nor did they enter appearance or attempt to give their side of the story in this proceedings despite being given the opportunity to do so.

21) The latitude in assessing punitive damages is very wide, court is under duty to not only consider the pain and suffering that has been occasioned but also whether if any measures have been taken by the defendant to mitigate or aggravate the potential or existing harm suffered by the plaintiff. In the case of Sutcliffe-VS-Pressdram Ltd (1990) All ER 269 referred to aggravated damages as

“The extent to which the pain and suffering is aggravated or reduced by the Defendant‘s subsequent conduct”

22) It is clear that the defendant did not issue any apology to the plaintiff’s in this case, to try minimise the already damaged reputation created in the public vide their newspaper article. For this reason the award on exemplary and punitive damages should be awarded.

23) Having considered the evidence before this court, the submissions from the learned Counsels and the provisions of substantive law applicable, I hereby enter judgment in favour of the plaintiffs and against the defendants jointly and severally as follows:

1. General damages of Ksh. 2,500,000/= each to Plaintiff.

2. Punitive or exemplary damages of Ksh.500,000/= each toplaintiff.

3. For the avoidance of doubt and in view of the awards in 1 &2 above, each plaintiff is to get kshs.3,000,000/= making the total to be ksh.6,000,000/=.

4. The defendants should publish an apology in their newspaper to be given a wide circulation within 30 days from the date of this judgement.

5. Costs of this suit is awarded to the plaintiffs.

Dated, Signed and Delivered in open court this 20th day of July, 2017.

J. K. SERGON

JUDGE

In the presence of:

.........................for the Applicant

.........................for the Respondent