[2017] KEHC 2830 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

CIVIL APPEAL NO. 91 OF 2013

PHILEMON ABONG’O ARODI………...........….….APPELLANT

VERSUS

THE STANDARD LTD….…..........................1ST RESPONDENT

CYRUS OMBATI………...……….….….… 2ND RESPONDENT

(Being an Appeal from the Judgment ofHon. Lucy Gitari (CM) inKisumu CMCC NO.2 OF 2010 delivered on 19th September 2013)

JUDGMENT

(1) Philemon Abong’o Arodi sued(hereinafter referred to as appellant)sued The Standard Ltd and Cyrus Ombati(hereinafter referred to as respondents) in the lower court claiming damages for defamation arising out of words published in the 1st respondent’s newspaper on or about 9th September, 2009.

The defendant/appellant filed a statement of Defence in which they conceded publishing the words complained of but denied that the same were defamatory.

(2) In a judgment delivered on 19th September, 2013, the learned trial Magistrate found that the appellant had not proved his case on a balance of probability and dismissed it with costs to the respondents.

The Appeal

(3) The Appellant being dissatisfied with the lower court’s decision preferred this appeal and filed the Memorandum of Appeal dated 18th October 2013 which set out 7 grounds of appeal to wit:-

1) The Learned Magistrate erred in law and in fact by making a finding that the appellant did not prove that he was retired and not sacked

2) The Learned Magistrate erred in law and in fact by holding out that the appellant was entitled to a pension even where he was sacked

3) The Learned Magistrate erred in law and in fact by holding out that the presumption of likely facts applied in the case of the appellant

4) The Learned Magistrate erred in fact by finding that there existed better evidence of the appellant’s retirement that that which was given by the appellant

5) The Learned Magistrate erred in law and in fact by making a finding that the respondents’ words amounted to fair comment and were made in good faith

6) The Learned Magistrate erred in law and in fact by failing to find that the words of the respondent were defamatory and actionableper se

7) The Learned Magistrate erred in law and in fact by arriving at the decision that the appellant had failed to prove his case on a balance of probability

SUBMISSIONS BY THE PARTIES

(4) When the appeal came up for mention on 28. 3.17; the parties’ advocates agreed to canvass it by way of written submission which they dutifully filed.

(5) Appellant’s submissions

It was submitted for the appellant that the appellant proved his case having led evidence that he retired and was not sacked which evidence the respondents did not controvert. To this end, the appellant cited Street on Torts 5th Edition page 303.

(6) Respondents’ submissions

The respondents urged the court not to interfere with the finding of fact of the trial court. To this end, they cited NzoiaSugar Company Limited Vs Capital Insurance Brokers Limited [2014] eKLR and Kirugav Kiruga & Another [1988] KLR 348.

The respondents submitted that having failed to tender evidence to prove that he was retired and not sacked; the appellant did not controvert the words complained of.

(7) The evidence

The appellant testified that he joined the Police Force on 1st February, 1966 as shown in his letter of appointment PEXH. 1 and retired on 13th February, 2003 and rse through the ranks to the position of Commissioner of Police on 18th February, 1999. He stated that he retired from the service at the age of 55 years and received pension as shown in the letter marked PEXH. 5 from the Ministry of Finance. He stated that the publication made by the respondents on 9th September, 2009 were therefore false, malicious and defamatory. I have perused the entire record of appeal and considered the submissions by the appellant. I note that the appeal revolves around quantum which I shall consider as hereunder. The appellant’s witness said he was surprised by the newspaper article that the appellant was sacked because the appellant had told him he was retired. Respondents did not tender any evidence.

(8) Analysis and Determination

This being the first appeal, I have a duty to re-evaluate the evidence tendered before the trial court. I have considered the guiding principles laid down by the Court of Appeal. In NzoiaSugar Company Limited Vs Capital Insurance Brokers Limited (Supra) the Court cited Makube Vs. Nyamiro [1983] KLR 403;with approval and stated:

“ … a Court of Appeal will not normally interfere with a finding of fact by the trial court unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching the findings he did.”

(9) Similarly, in the case of Kirugav Kiruga & Another (Supra); the Court accepted the principle laid down by the House of Lords in Watt v Thomas[1947] 1 All ER 582where Sir O’Connor said:-

“It is a strong thing for an appellate court to differ from the finding, on a question of fact of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed jurisdiction to review the evidence in order to determine whether the conclusion reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion.”

(10)Issues for determinations

The fundamental issues raised in this appeal have been summarized as follows:-

a). Whether the words complained of are false

The burden of proof is on he who alleges. It goes without saying, but it is often necessary to say it Hon. Mr. Justice Musinga (as he then was) said in Timsales Ltd Vs. Harun Wafula Wamalwa (Nakuru HC Civil Appeal No. 95 of 1995) that -

"In our adversarial system of litigation, cases are tried and determined on the basis of the pleadings made and the issues of fact or law framed by the parties or the court on the basis of those pleadings pursuant to the provisions of Order XIV of the Civil Procedure Rules. The burden of proof is on the Plaintiff and the degree of proof is on the balance of probabilities."

(11) The decision was a restatement of Section 107 of the Evidence Act (Cap. 80, Laws of Kenya) which provides as follows:-

(1) whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove those facts exist."

(12) In addition Section 112 of the Evidence Act provides that in civil proceedings when any fact is within the knowledge of any party to those proceedings the burden of proving or disproving that fact is upon such party (him).

(13) The appellant was the Plaintiff in the lower court. The question is whether he discharged the burden of proof laid on him by Section 107 of the Evidence. In determining whether the appellant discharged that duty, it must be born in mind that his duty was to prove his claim against the Appellant, and the rspondent to disprove its liability against the appellant, not on the basis of proof beyond reasonable doubt but rather on the balance of probability.

(14) It was the evidence of the appellant that he was retired and not sacked. Although he did not produce his letter of retirement, he told the court that he had been served with a letter notifying him that his retirement was approaching. That letter was not produced and on this issue, the learned trial magistrate in her judgment rendered herself as follows:

“It is now trite law that where evidence exists and is not produced in court, the inference is that if the evidence was produced, it could have been adverse to the plaintiff. I must make this inference that failure to avail the letter showing how his appointment was terminated was because it would have been adverse to the plaintiff’s case”

(15) Bearing in mind that the burden of proof in a civil case is on a balance of probability, it is my view that the appellant was not able to discharge the burden in proof of the termination of his employment that he was retired and not sacked.

b. Whether the meaning attributed to the publication was defamatory

In an action for defamation, the claimant must establish three things. Firstly, that the words complained of are defamatory, that is, they tend to lower the claimant’s reputation in the estimation of right thinking members of society; secondly, that the words refer to the claimant and finally, that the words are malicious.

(16) It is not in dispute that the words complained of referred to the Plaintiff. The issue is whether those words were defamatory. The appellant in his testimony before the trial court confirmed that he was last Commissioner of Police appointed by the then President, Mr. Moi. He also confirmed that he dealt with the Mungiki menace during his tenure. He further confirmed that he left employment soon after the NARC Government came into office. No iota of evidence was tendered to demonstrate that the words complained of in their natural and ordinary meaning intended or were understood to mean that the appellant was incompetent, unworthy of holding office or was a criminal.

(17) Consequently, I find that appellant failed to tender any evidence to prove that the publication by the respondents was untrue and that it lowered his estimation in the minds of the right-thinking members of society.

The foregoing notwithstanding, this court is under a duty to determine whether the publication, though true, was actuated by malice.

c. Whether the respondents were actuated by malice

(18) On malice, Odunga J held inPhineas Nyagah Vs Gitobu Imanyara (2013) eKLR stated as follows:-

“Evidence of malice may be found in the publication itself if the language used is utterly beyond or disproportionate to the facts.

(19) The language in the publication is in my considered view not beyond or disproportionate to the facts. No malice can be imputed from the words that merely confirmed that the appellant was indeed the last Commissioner of Police appointed by the then President, Mr. Moi; that he dealt with the Mungiki menace during his tenure and left employment soon after the NARC Government came into office.

Orders

(20) From the foregoing; I am satisfied that the learned trial magistrate properly considered the law and facts placed before the court and arrived at the correct decision. There would therefore be no justification for this court to interfere with the trial court’s decision.

In the result, the appeal is disallowed with costs to the respondents.

DATED AND DELIVERED THIS12thDAY OFOctober2017

T. W. CHERERE

JUDGE

Read in open court in the presence of-

Court Assistant - Felix

Appellant - Mr. Ochieng

Respondent - Mr. Ayieko b/b for Marabu