[2024] KEHC 11656 (KLR)

Professor Tom Ojienda t/a Prof. Tom Ojienda & Associates v Aholi & 8 others (Civil Case 8 of 2016) [2024] KEHC 11656 (KLR) (Civ) (19 September 2024) (Judgment)

Neutral citation: [2024] KEHC 11656 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Case 8 of 2016

AN Ongeri, J

September 19, 2024

Between

Professor Tom Ojienda t/a Prof. Tom Ojienda & Associates

Plaintiff

and

Eric Aholi

1st Defendant

Charles Appletion

2nd Defendant

Brian Desouza

3rd Defendant

Anis Pringle

4th Defendant

Josephat Mwaura

5th Defendant

Jacob Gathecha

6th Defendant

Joseph Kariuki

7th Defendant

Benson Ndungu

8th Defendant

John Ndunyu Trading as KPMG

9th Defendant

Judgment

1. The plaintiff in this case Professor Tom Ojienda Sc T/a Prof. Tom Ojienda & Associates (hereafter Referred To As The Plaintiff Only) Has SuedEric AholiCharles AppletionBrian DesouzaAnis PringleJosephat MwauraJacob GathechaJoseph KariukiBenson NdunguJohn Ndunyu trading as KPMG Kenya (hereafter referred to as the defendants only) seeking the following remedies;i.General damagesii.Aggravated damagesiii.Interest on (i) and (ii) above at court’s ratesiv.An order of mandatory injunction compelling Eric Aholi, Charles Appleton, Brian Desouza, Anis Pringele, Josephat Mwaura, Jacob Gathecha, Joseph Kariuki, Benson Ndung’u and John Ndunyu and any other partner of KPMG Kenya, jointly and severally, to, within two days of the judgment hereof or such period as directed by court, publish an apology to Prof. Tom Ojienda SC in at least two newspapers of National newspaper of national circulation, unequivocally retracting and revoking the defamatory articles complained of, and in a manner as prominent as the offending defamatory articles;v.An order of permanent injunction restraining Eric Aholi, Charles Appleton, Brian Desouza, Anis Pringle, Josephat Mwaura, Jacob Gathecha, Joseph Kariuki, Benson Ndung’u And John Ndunyu and any other partner or agent of KPMG Kenya from further publication of the defamatory articles that the plaintiff complains of herein or any other defamatory article, words, material, testimony or remarks against, of and concerning Prof. Tom Ojienda SC in relation to the provision of legal services to MSC by the plaintiff’s law firm particularly Prof. Tom Ojienda.vi.Costs of this suit.vii.And any other or further relief as this honourable court may deem fit to grant.

2. The plaintiff averred in the plaint dated 17/8/2015 that he is an Advocate of the High Court of Kenya and has been conferred with the status of a Senior Counsel within the Legal Profession. The Plaintiff is the Managing Partner and Proprietor of Professor Tom Ojienda & Associates which law firm is situated in Nairobi in the Republic of Kenya.

3. Further, that the Plaintiff was at the material time a Commissioner of the Judicial Service Commission of Kenya. The Plaintiff had also served as the Chairman of the Law Society of Kenya The Plaintiff had also served as the Vice President and the President of the East Africa Law Society as well as the Financial Secretary of the Pan African Lawyers. The Plaintiff had also served as a Commissioner in the Truth Justice and Reconciliation Commission established after the 2007-2008 post election violence in the country.

4. The Plaintiff had also chaired the Land Acquisition Compensation Tribunal and served as a member of the National Environmental Tribunal in Kenya. The Plaintiff was also a renowned legal scholar who has authored several legal texts.

5. The Plaintiff had also served as a Council member of the International Bar Association, a Member of the Board of American Biographical Society, Member of the Council of Legal Education, a Member of the Public Law Institute of Kenya, a Member of the Board of Directors of the Kenya Industrial Property Institute and an Associate Professor of Public Law at Moi University.

6. The Plaintiff was also a Law graduate from the University of Nairobi, a Post Graduate Diploma Holder from the Kenya School of Law, a Masters Graduate from Kings College, University of London and a Doctorate holder from the University of South Africa. The Plaintiff also held a Diploma in French from Alliance Francais. The Plaintiff also a respected family man; a person of known good reputation, unrivaled success in the legal profession and high standing in the society.

7. The Plaintiff was at the material time an experienced Advocate of the High Court of Kenya of more than 24 years standing. He has taught Law at Moi University, Kenya, for over ten years. He has consulted for various state and multinational agencies, private entities and county governments. He has represented various private persons, state corporations, county governments, county assemblies, state agencies and multinational agencies in various courts all the way from the Subordinate Courts, High Court, Court of Appeal and the Supreme Court.

8. The Plaintiff has also published various books and peer reviewed articles; consulted for various agencies and presented articles in over 20 countries all over the world.

9. The Defendant is a partnership duly registered under Kenyan law and a member firm of the KPMG network of independent member firms affiliated with KPMG International, a Swiss entity with presence all over the whole world.

10. The plaintiff further averred that in a Report titled Mumias Sugar Company Limited Draft Forensic Investigation Report dated 8th July 2014 at pages 104-105 thereof, the Defendant unilaterally, maliciously, recklessly and without any justification whatsoever, published and caused to be published defamatory words of and concerning the Plaintiff as follows;“Kebati authorized the payment for the legal services from Professor Tom Ojienda. According to the Purchase order this was the matter of "Mumias Sugar Company Versus The Option Two Limited and James Ndungu Mboi and Serah Wambui Ndungu 1/A Kenini Haraka Enterprises on infringement of trademark and passing off suit" We noted that a total amount of Kshs.7,000,000. 00 was paid in via cheque number 72429. Nyongesa explained that service was not competitively sourced for. They mainly relied on the company's secretary's office to do the selection in view of the fact that court cases depend on specialization. Hence the appointment of Tom Ojienda advocates to represent MSC in this urgent issue of dealing with counterfeit sugar.He stated that the issue had been raised in an earlier internal audit report, dated after this award, the MSC board agreed that going forward sourcing of legal services would be undertaken through the procurement tendering process. He further stated that a pool of lawyers are now prequalified for tendering purposes. No contract was provided for the above service."

11. The said published words as used, expressly, are defamatory to the Plaintiff as the words in their natural and ordinary meaning as the Defendant intended, meant and was understood to mean:i.That the plaintiff is a scoflaw who violates laid down rules and regulations on procurement;ii.The Plaintiff was not in the prequalified list of Lawyers representing Mumias Sugar Company and was merely handpicked by the Company's Secretary to render the servicesiii.The Plaintiff was not qualified to undertake the tasks he had been assigned to undertakeiv.The Plaintiff lacks in integrity

12. Further, in the Report titled Mumias Sugar Company Limited (MSC)Draft Forensic Investigation Report dated 8th July 2014 at pages 328 thereof, the Defendant unilaterally, maliciously, recklessly and without any justification whatsoever, published and caused to be published defamatory words of and concerning the plaintiff as follows:“Emily Otieno advised MSC to single source legal services from Prof. Tom Ojienda, without following the due process."

13. The plaintiff averred that the said published words as used, expressly, are defamatory to the Plaintiff as the words in their natural and ordinary meaning, as the defendant intended, meant and was understood to mean:i.That the plaintiff is a scofflaw who violates laid down rules and regulations on procurement;ii.The Plaintiffs law firm was not in the prequalified list of Lawyers representing Mumias Sugar Companyiii.The Plaintiff was merely handpicked by the Company's Secretary to render the services.iv.The Plaintiff was not qualified to undertake the tasks the had been assigned to undertakev.That the Plaintiff is corrupt;vi.The Plaintiff lacks in integrity.

14. The Plaintiff contends that the Defendant never notified him of the allegations that the Defendant published against him and never gave him a chance to be heard on the same in utter and blatant disregard to the principle of Audi Alteram Partem.

15. The Plaintiff further contends that had the Defendant's publication of him was negligent, reckless and malicious and had the Defendant notified the Plaintiff of its deleterious publication regarding the Plaintiff's legal services to Mumias Sugar Company Limited, then the Plaintiff would have readily informed KPMG as follows:a.Firstly, Mumias Sugar Company Limited duly prequalified the firm of the Plaintiff into the Company panel of Advocates to provide legal services and at all material times, the Plaintiff's firm of Advocates was in the Company panel of Advocates.b.Secondly, the case of Nairobi HCC No. 463 of 2013: Mumias Sugar Company Limited versus The Option Two Ltd & 2 Others was a Commercial dispute filed by Mumias Sugar Company Limited seeking orders that the court declares that the packaging, distributing supply and/ or sale or passing off of option Two sugar as if it was Mumias Sugar infringed on the Registered trademarks of Mumias Sugar Company Limited and occasioned Mumias Sugar Company immense losses for which the Company sought to be compensated. The value of the subject matter in that case was the tonnage of the infringing sugar targeted for destruction which was 6,500 tonnes of Option two Sugar, worth Kenya Shillings Four Hundred Million (400,000,000. 00).Under the Advocates Remuneration Order, the Plaintiff's firm was by law entitled to charge Mumias Sugar Company Limited Kshs. Ten Million(10,000,000. 00) in instruction fees alone, exclusive of disbursements and VAT. Consequently, in fact MSC still owes the Plaintiff sums of money for the legal services provided for in that matter.c.Thirdly, and most critical, the Defendant's publication that Mumias Sugar Company Limited single sourced the plaintiffs firm of Advocates to provide the legal services, is, with respect, very misguided. Once firms of Advocates were prequalified into a panel of Advocates, Mumias Sugar Company Limited had the discretion to pick any of the prequalified firm of Advocates for any brief.That the Defendant's opinion that a Company would be advertising for legal services every time it is sued or seeks to sue untenable, to say the least. Neither is it supported by any law. Had the defendant notified the Plaintiff of its publication prior to the publishing, the Plaintiff would have, freely, brought to its attention, the decision of Lady Justice K. H. Rawal(Now Supreme Court Judge) in the case of Thiong'o Njiri & 81 Others versus the Municipal Council of Kiambu & Another, Nairobi HCCC No. 499 of 2010 [2011] eKLR, where in the Learned Judge expressed herself as follows:“In my considered view, the inclusion of service of on advocate to be procured by advertising and the procurement process could and does involve the breach of the provisions of the Advocates' Act, the Advocates' Remuneration Order as well as the Advocates (Practice) rules. I do wonder how an Advocate could bid to tender for legal service simpliciter. How an Advocate could place the economic provision for legal services in the tender without the claim, value or nature of claim being specified. The legal charges shall vary according to each and every case which the local authorities might file or defend. Inviting bid for legal services per se could contravene the spirit and purport of the Advocates Act which is a specific Act and prior in time. If the local authority needs the services for a specified case, the insistence of undergoing procurement process shall be self defeating due to the court procedure."

16. The aforesaid defamatory words published by the Defendant, of and conceding the Plaintiff, were authored and published maliciously, recklessly and were false and defamatory of the Plaintiff.Requirements Unde Order 2 Rule 7(3) Of The Civil Procedure Rules, 2010Particulars Of Malicei.The Defendant never attempted to interview the plaintiff in order to get the plaintiffs point of view before making the publishing the draft report. This notwithstanding, the Defendant proceeded to make the defamatory statements as stated above.ii.The Defendant did not take into consideration the fact that the Plaintiff's Law firm had been listed among the prequalified firms in the years 2013-2015 and which could therefore be legally contracted to take up any matter if need arose by MSC.iii.The Defendant did not take into consideration the 2013-2015 Goods and Services Suppliers prequalification Report particularly at Paragraph 7 thereof which made provision for 'prequalification for provision of legal services 'MSC/PM/D/15487. ' The Article read that "34 firms applied in this category. Recommendation: We recommend to the MTC for the prequalification for the below highlighted 29 firms which have scored above 50% pass mark in the category." The Article then proceeded to give the percentages that each law firm that had applied got. At position 12 was the Plaintiff's firm where it was allocated a percentage of 70%. The Plaintiffs firm scored way above the laid down percentage pass mark which was 50%.iv.The Defendant did not take into consideration that in the provision of legal services, the normal tendering processes are not adhered to as this would amount to touting or canvassing in contravention of the Advocates Act which prohibits the same. Consequently, advocates are put on record in matters that they are shown to have expertise in and not merely as a result of a bidding process.v.The Defendant did not take into account that the matters that they listed to have been assigned to the Plaintiff by the Company Secretary selectively were matters that came up after the Plaintiff's firm had been prequalified among the first 29 law firms that scored above the passmark. Therefore, to aver that the Plaintiff's Law firm was selectively picked amounts to gross misrepresentation in the highest form and misreporting to the public that relies on such audit reports to get to know about the ongoing of the companies that they intend to invest in.vi.At paragraph 1. 3 of the draft report, the Defendant asserts that the draft report was not a public document but an internal document prepared for the exclusive use of Mumias Sugar Company Limited, but proceeded to forward to parliament an unconcluded draft report containing allegations that the Defendant was yet to verify, as if the report were a final document prepared upon hearing the Plaintiff on the grossly misleading allegations made against him in the draft report.vii.The Defendant just noted that a total of 7, 000,000 shillings was paid to the Plaintiff via cheque number 72429. This is quite misleading as the Defendant failed to note that this payment was made in lieu of the legal services that had been provided for by the Plaintiff's Firm. Further, the Defendant failed to report that this payment was made in view of the fee note that had been raised by the Plaintiff's Firm of Advocates in view of the legal services that had been provided to MSC in Mumias Sugar Company Versus The Option Two Limited and James Ndungu Mboi and Serah Wambui Ndungu 1/A Kanini Haraka Enterprises on infringement of trademark and passing off suit. The payments were therefore legal and not whimsical and unjustified as is purportedly inferred in the draft report.viii.The Defendant withheld it from the public in its draft report that nowhere was the retention of KPMG Kenya Audit approved by shareholders at an Annual General Meeting or at all for purposes of conducting an audit of Mumias Sugar Company as required under the Companies Act;ix.The Defendant withheld it from the public in its draft report that the allegations they were purporting to raise concerned issues that were already audited by Deloitte and Touche, professional firm of auditors, whose opinion the Defendant never sought in compiling the so called forensic audit report;PARTICULARS OF FALSEHOODi.That the Plaintiff's Law firm had not been listed among the prequalified firms in the years 2013-2015 and could therefore not be legally contracted to take up any matter if need arose by MSC That the Plaintiffs Law firm was not among the 29 Law firms that had scored above the laid down percentage pass mark which was 50% in the 2013 – 2015 Goods and services Suppliers Prequalification Report.ii.That the Plaintiff's Firm was put on record as the MSC'S Advocate as a result of a flawed tendering processes. The Defendant did not take into consideration that in the provision of legal services, the normal tendering processes are not adhered to as this would amount to touting or canvassing in contravention of the Advocates Act which prohibits the same. Consequently, advocates are put on record in matters that they are shown to have expertise in and not merely as a result of a bidding process.iii.The matters listed by the Defendants to have been assigned selectively to the Plaintiff came before the Plaintiff’s firm had been prequalified. The Defendant did not take into account that the matters that they listed to have been assigned to the Plaintiff by the Company Secretary selectively were matters that came up AFTER the Plaintiff's firm had been prequalified among the first 29 law firms that scored above the pass mark. Therefore, to aver that the Plaintiff's Law firm was selectively picked amounts to gross misrepresentation in the highest form and misreporting to the public that relies on such audit reports to get to know about the ongoing sod companies that they intend to invest in.iv.The Defendant just noted that a total of 7,000,000 shillings was paid to the Plaintiff via cheque number 72429: This is quite misleading as the Defendant failed to note that this payment was made in lieu of the legal services that had been provided for by the Plaintiffs Firm. Further, the Defendant failed to report that this payment was made in view of the Fee note that had been raised by the Plaintiff's firm of advocates in view of the legal services that had been provided to MSC in Mumias Sugar Company Versus The Option Two Limited and James Ndungu Mboi and Serah Wambui Ndungu 1/A Kanini Haraka Enterprises on infringement of trademark and passing off suit. The payments were therefore legal and not whimsical and unjustified as is purportedly inferred in the draft report.

17. By reason of the publication of the aforesaid words, the Plaintiffs reputation has been lowered in the estimation of right thinking members of the Public and his reputation as a State Officer; a high-ranking citizen; a Senior Counsel; a celebrated Scholar; a former Council Member, International Bar Association; a Former Vice-President, Pan African Lawyers Union; a former President, East Africa Law Society; and a former Chairman, Law Society of Kenya as well as a respectable family man has been seriously and irretrievably tainted and blemished.

18. In publishing the aforementioned words by the Defendant, of and concerning the Plaintiff, the Defendant was actuated by malice and it was a continuation of a calculated, persistent and unjustified attack against the Plaintiff for which the plaintiff is entitled to aggravated damages based on the following facts:i.The Plaintiffs firm was not selectively picked to represent Mumias Sugar Company Limited in the Option Two matter as the matter came up in 2014 way after the Plaintiffs firm had been listed among the prequalified law firms.ii.The 7,000,000 million shillings paid to the Plaintiff by MSC was paid in lieu of the fee note raised by the Plaintiff's law firm after representing the company in the Option Two matter. In fact, the company still owes the Plaintiff legal fees as it had not completely paid the plaintiff the fee note of ten million shillings which was raised solely in compliance with the Advocates' Remuneration Order.

19. The Plaintiff further averred that the Defendant Firm negligently published the defamatory articles in due breach of their professional undertaking to their alleged client Mumias Sugar Company and the Plaintiff's firm being a firm negatively depicted in the Report as one that was handpicked in due breach of the procurement processes of the legal services.

20. The Plaintiff avers that in publishing the aforementioned words concerning him and his law firm, the Defendant, was in utter breach of its professional duty and it negligently misrepresented the facts to the Mumias Sugar Company Limited, the parliament of Kenya and indeed the entire public that:a.The Plaintiff's law firm of Prof. Tom Ojienda & Associates was selectively handpicked to handle the Option Two matter without any competitive selection whatsoeverb.The law firm of Prof Tom Ojienda was not among the firms that had been listed in the prequalified list of advocatesc.The Plaintiffs law firm was wrongly paid 7,000,000 shillings by Mumias Sugar Company Limited

21. The Plaintiff avers that it is in utter disregard of its professional duty to both Mumias Sugar Company and him and indeed any consumer of the Report that the Defendant failed to conduct due diligence and consult on the manner of procurement of legal services and therefore negligently Published to the public that the Plaintiffs law firm flawed procurement Procedures yet it was held by Justice Rawal that legal services cannot be procured in the normal manner that other services and goods are procured as that would be a complete violation of the Advocates Act and Advocates practice in general.

22. The Plaintiff contends that had the Defendant conducted due diligence then it would have had its attention brought to the judgment by Justice Rawal on the provision of legal services in the case of Thiong'o Njiri & 81 Others versus the Municipal Council of Kiambu & Another, Nairobi HCCC No. 499 of 2010 (2011) eKLR, wherein the Learned Judge expressed herself as stated above.

23. The Plaintiff avers that it is as a result of this negligent act of failing to conduct due research on the manner of procurement of legal services and/or negligently failing to interview the Plaintiff that led the Defendant herein to falsely, maliciously, recklessly and negligently misrepresent the facts to Mumias Sugar Company and the general public that the Plaintiffs law firm had been handpicked by the then legal officer Emily Otieno to act for Mumias Sugar Company Limited in the Option Two matter.

24. The Plaintiff avers that the legal aspect aside, the Defendant herein negligently misrepresented to Mumias Sugar Company Limited, the Parliament of Kenya and indeed the entire public the facts regarding the procurement of the legal services by his law firm by conveniently failing to disclose that the Plaintiff's law firm was in fact in the prequalified list of Advocates. Sadly, the Defendant in shameless disregard of the professional duty that it owed to the Plaintiff and his law firm misrepresented to Mumias Sugar Company, the Parliament of Kenya and indeed the entire public that the Plaintiff was in fact but merely handpicked by the then company Secretary Ms Emiy Otieno to represent Mumias Sugar Company Limited. This is despite the fact that it had by itself noted that that was an unconcluded Draft Report that was not meant for public use.

25. The Plaintiff avers that there need not be a direct fiduciary relationship for one to sue for professional negligence. All that a Plaintiff needs to show is that there was a negligent misrepresentation that was made directly to the person who was seeking the information, opinion or advice as was held in the case of Hedley Byre v Keller & Partners Ltd (1964).

26. It is against this background that KPMG having duly being contracted to conduct the Forensic Audit of the affairs of Mumias Sugar Company Limited owed a duty to Mumias Sugar Company to table the accurate facts in relation to the Forensic Audit at the very least;

27. However, in total opposite and breach of their professional duty as Forensic Auditors contracted by Mumias Sugar Company Limited, the Defendant herein negligently misrepresented facts to Mumias Sugar Company Limited, the Parliament of Kenya and indeed the entire public that my law firm had been but selectively handpicked by the then company secretary Ms Emily Otieno;

28. This gave the impression that his law firm and indeed the Plaintiff himself as the advocate conducting that matter was not in the prequalified list of Advocates/law firms that represented Mumias Sugar Company Limited and that had been paid seven million shillings by Mumias Sugar Company Limited for no reason whatsoever;

29. The Plaintiff avers that the Defendant being the Forensic Auditor had in its capacity and without any form of difficulty whatsoever the ability to get the records concerning the prequalified lists of lawyers that were acting for Mumias Sugar Company Limited. All the records concerning the affairs of the company were availed to the Defendant but the Defendant still chose to negligently misrepresent to Mumias Sugar Company limited, the parliament of Kenya and indeed the entire public that the Plaintiff's law firm had been selectively handpicked to handle the Option Two Matter.

30. The concept of professional negligence was explained in Bolam V Friern Hospital Management Committee (1936) ALI,ER 1957 Volume 2 where the court held that the test is the standard of the ordinary skilled man exercising and professing to have that special skill.

31. The Plaintiff avers that the question then is 'whether the Defendant meets the threshold of the standard of the ordinary skilled man exercising and professing to have that special skill?' The other question is 'would any reasonable audit firm conducting the same audit have seen these gross misrepresentations?

32. The Plaintiff avers that the answer is 'yes' and not only was the Defendant advised on the legal impact of the Report but the Defendant/Respondent was availed to all the records available for the provision of the legal services by Mumias Sugar Company Limited. They had no reason whatsoever to fail to go through the records. Had they gone through the records that were readily availed to them they would have found out that the Plaintiffs law firm was indeed listed among the prequalified law firms that rendered legal services to Mumias Sugar Company Limited at the time in question;

33. Instead, the Defendant proceeded, in express breach of its professional duty, to negligently misrepresent to Mumias Sugar Company Limited, the Parliament of Kenya and indeed the entire public that the Plaintiff's firm was selectively handpicked represent Mumias Sugar Company, a misrepresentation indeed as:a.Mumias Sugar Company Limited duly prequalified the Plaintiff's law firm, being Prof. Tom Ojienda & Associates, into the Company's panel of Advocates to provide legal services and at all material times to this publication, the Plaintiff's firm was in the Company's panel of Advocates.b.The case of Nairobi HCC No. 463 of 2013: Mumias Sugar Company Limited versus The Option Two Ltd & 2 Others was a Commercial dispute filed by Mumias Sugar Company Limited seeking orders that the court declares that the packaging, distributing, supply and/or sale or passing off of Option Two sugar as if it was Mumias Sugar infringed on the Registered trademarks of Mumias Sugar Company Limited and occasioned Mumias Sugar Company immense losses for which the Company sought to be compensated. The value of the subject matter in that case was the tonnage of the infringing sugar targeted for destruction which was 6,500 tonnes of Option two Sugar, worth Kenya Shillings Four Hundred Million (400,000,000. 00). Under the Advocates Remuneration Order, the Plaintiffs law firm was by law entitled to charge Mumias Sugar Company Limited Kshs. Ten Million (10,000,000. 00) in instruction fees alone, exclusive of disbursements and VAT. Consequently, in fact MSC still owes the Plaintiff's firm sums of money for the legal services provided for in that matter.c.The defendant's publication that Mumias Sugar Company Limited single sourced the Plaintiff's firm to provide the legal services, is, with respect, very misguided. Once firms of Advocates were prequalified into a panel of Advocates, Mumias Sugar Company Limited had the discretion to pick any of the prequalified firm of Advocates for any brief. The defendant's opinion that a Company would be advertising for legal services every time it is sued or seeks to sue is untenable, to say the least. Neither is it supported by any law. Had the defendant notified the Plaintiff of its publication prior to the publishing, the Plaintiff would have, freely, brought to its attention, the decision of Lady Justice K. H. Rawal (NowSupreme Court Judge) in the case of Thiong'o Njiri & 81 Others versus the Municipal Council of Kiambu & Another, Nairobi HCCC No. 499 of2010 [2011] eKLR, wherein the Learned Judge expressed herself as stated above.Particulars Of Negligencea.Failing to exercise due diligence by failing to go through the Goods and Services Supplies Report (2013-2015 Goods and Services Suppliers prequalification Report) which Report contained the Prequalified list of lawyers that Mumias Sugar Company Limited had retained to represent Mumias Sugar Company Limited should there be need for representation of the companyb.Negligently failing to question/interview the Plaintiff to find out the manner in which the legal services of his law firm for Mumias Sugar Company Limited were procured.c.The Defendant negligently failed to take into account that the matters that they listed to have been assigned to the Plaintiff by the Company Secretary selectively were matters that came up AFTER the Plaintiffs firm had been Prequalified among the first 29 law firms that scored above the pass mark.Therefore, to aver that the Plaintiffs Law firm was selectively picked amounts to gross negligent misrepresentation in the highest form and misreporting to the public that relies on such audit reports to get to know about the ongoing of the companies that they intend to invest in.d.At paragraph 1. 3 of the draft report, the Defendant asserts that the draft report was not a public document but an internal document prepared for the exclusive use of Mumias Sugar Company Limited, but proceeded to negligently forward to parliament an unconcluded draft report containing allegations that the Defendant was yet to verify, as if the report were a final document prepared upon hearing the Plaintiff on the grossly misleading allegations made against him in the draft report;e.The Defendant just negligently noted that a total of 7,000, 000 shillings was paid to the Plaintiff via cheque number 72429. This is quite misleading as the Defendant failed to note that this payment was made in lieu of the legal services that had been provided for by the Plaintiff's Firm. Further, the Defendant failed to report that this payment was made in view of the Fee note that had been raised by the Plaintiff's Firm of Advocates in view of the legal services that had been provided to MSC in Mumias Sugar Company Versus The Option Two Limited and James Ndungu Mboi and Serah Wambui Ndungu1/A Kanini Haraka Enterprises on infringement of trademark and passing off suit. The payments were therefore legal and not whimsica1 and unjustified as is purportedly inferred in the draft report.

34. The Plaintiffs claim against the Defendant therefore is for an order of mandatory injunction compelling Eric Aholi, Charles Appleton, Brian Desouza, Anis Pringle, Josephat Mwaura, Jacob Gathecha, Joseph Kariuki, Ndung'u And John Ndunyu and any other Partner of KPMG Kenya, jointly and severally, to, within seven days of the judgment hereof such period as directed by Court, publish an apology to Prof. Tom Ojenda SC in at least newspapers of National Newspapers of national circulation, unequivocally retracting and revoking the defamatory articles complained of, and in a manner as prominent as the offending defamatory articles; An order of permanent injunction restraining Eric Aholi, Charles Appleton, Brian Desouza, Anis Pringle, Josephat Mwaura, Jacob Gathecha, Joseph Kariuki, Benson Ndung'u And John Ndunyu and any other Partner or agent of KPMG Kenya from further publication of the defamatory articles that the Plaintiff complains of herein or any other defamatory article, words, material, testimony or remarks against, of and concerning Prof. Tom Ojienda SC in relation to the provision of legal services to MSC by the plaintiffs law firm particularly Prof. Tom Ojienda & Associates, Advocates; general and Aggravated damages, interest thereon, costs of this suit and any other relief that this Honourable Court may deem fit.

35. Despite the Plaintiffs demand for an apology from the Defendant and notice of intention sue being made, the Defendant has declined and/or refused to retract the said words and/or article nor has the Defendant rendered an appropriate apology thus the necessity of this suit.

36. The defendants filed a defence dated 12/4/2016 denying the plaintiff’s claim and pleaded the defence of qualified privilege.

37. The defendant denied that the plaintiff had any right to be notified or be heard with regard to any of the contents of the Draft Report

38. The defendant denied that the defendant was negligent, reckless or malicious as alleged or at all. The defendant denied that it owed any duty of care to the plaintiff as alleged or at all.

39. The 2013-2015 Goods and Services Suppliers Pre-qualification Report relied on by the plaintiff was merely a recommendation by the evaluation team to the MTC of Mumias which was the only body authorised to take decisions on pre-qualification. The 2013-2015 Goods and Services Suppliers Pre-qualification Report was not an approved panel of pre-qualified advocates. The plaintiff was not pre-qualified at the time the instructions in question were issued to the plaintiff.

40. The draft report was published to the Agriculture, Fisheries and Food Authority on 6th November, 2014 on an occasion of qualified privilege.a.The Acting Managing Director of Mumias, Mr. Coutts Otolo, instructed the defe3ndnat to forward a copy of the Draft Report to the Interim Director General on behalf of Mumias. Pursuant to these instruction, the defendant, on behalf of Mumias. Forwarded a copy of the Draft Report to the Interim Director General Agriculture, Fisheries and Food Authority under cover of a letter of 6th November, 2014. b.The Agriculture, Fisheries and Food Authority which is established under the Agriculture, Fisheries and Food Authority Act, 21013 is mandated to regulate the production, processing, marketing, grading, storage, collection, transportation and warehousing of agricultural products.c.By virtue of the mandate of the Agriculture, Fisheries and Food Authority:i.Mumias was under a duty to report the findings of the investigations carried out by the defendant into the affairs of Mumias to the Agriculture, Fisheries and Food Authority in answer to the requests made by the Agriculture, Fisheries and Food Authority pursuant to the Agriculture, Fisheries and Food Authority Act, 2013; andii.The Agriculture, Fisheries and Food Authority had a legitimate interest in receiving the Draft Report and the findings contained therein relating to the affairs of Mumias; andiii.The delivery of the Draft Report to the Agriculture, Fisheries and Food Authority by the defendant on the instructions issued by Mumias was pursuant to the duty owed by Mumias as set out in (i) above.iv.Further, in all the circumstances, the defendant was under a moral and social duty to provide the information in the Report to the Agriculture, Fisheries and Food Authority which had a corresponding interest and/or was entitled to receive the same.

41. On 18th December, 2014 the draft report was published to the Parliamentary Committee Parliamentary Committee on Agriculture of the National Assembly on 18th December, 2014 on an occasion of qualified privilege.a.The Government of Kenya through the Treasury owns 20% of the shares in Mumias.b.The Acting Managing Director of Mumias, Mr. Coutts Otolo, instructed the defendant to forward a copy of the Draft Report to the Clerk of the National Assembly on behalf of Mumias. Pursuant to that instruction, the defendant, on behalf of Mumias, forwarded a copy of the Draft Report to the Clerk to the National Assembly under cover of a letter dated 18th December, 2014. c.By virtue of the shareholding of the Treasury in Mumias and the contract between the defendant and Mumias:i.Mumias was under a duty to report the findings of the investigations carried out by the defendant into the affairs of Mumias to the National Assembly in answer to the requests made by the National Assembly pursuant to Article 125 of the Constitution; andii.The National Assembly had a legitimate interest in receiving the Draft Report and the findings contained therein relating to the affairs of Mumias; andiii.The delivery of the Draft Report to the National Assembly by the defendant on the instructions issued by Mumias was pursuant to the duty owed by Mumias as set out in (i) above.iv.Further, in all the circumstances, the defendant was under a moral and social duty to provide the information in the Report to the National Assembly which had a corresponding interest and/or was entitled to receive the same.

42. The defendant did not authorise any republication of the Draft Report.

43. Any cause of action that the plaintiff may have had, which is denied, was time barred under the proviso to section 4 (2) of the Limitation of Actions Act on the date when the Plaint herein was filed.

44. The defendant was carrying out a forensic investigation into transactions relating to the importation of sugar, commercial transactions; and procurement which requires a much more detailed review of these specific areas than the audit of financial statements which had been carried out by Deloitte and Touche.

The Plaintiff’s Evidence 45. The plaintiff testified as PW1. He adopted his written statement dated 17/1/2016 as his evidence in chief and he also produced a bundle of documents filed herein as his exhibits.

46. The plaintiff stated as follows in his written statement dated 17/1/2016.

47. That he is an Advocate of the High Court of Kenya and has been conferred with the status of a Senior Counsel within the Legal Profession.

48. That he is the Managing Partner of the Plaintiff/Applicant herein, conversant with the facts herein, hence competent to depone to this Affidavit;

49. He is aware that in an unconcluded and unilaterally prepared Draft Report by KPMG Kenya on alleged forensic audit of Mumias Sugar Company Limited dated 8 July 2014, the Defendant maliciously, recklessly and without any justification whatsoever published and caused to be published defamatory articles of and concerning him and his Law Firm in relation to the provision of legal services to Mumias Sugar Company Limited;

50. That at the material time, he was a Commissioner of the Judicial Service Commission Kenya and has also served as the Chairman of the Law Society of Kenya;

51. The plaintiff said that he has served as the Vice President and the President of the East Africa Law Society as well as the Financial Secretary of the Pan African Lawyers.

52. He has also served as a Commissioner in the Truth, Justice and Reconciliation Commission established after the 2007-2008 post election violence in the country;

53. He has also chaired the Land Acquisition Compensation Tribunal and served as a member of the National Environmental Tribunal in Kenya;

54. He has also served as a Council member of the International Bar Association, a Member of the Board of American Biographical Society, Member of the Council of Legal Education, a Member of the Public Law Institute of Kenya, a Member of the Board of Directors of the Kenya Industrial Property Institute;

55. He is also an Associate Professor of Public Law at Moi University;

56. He is a Law graduate from the University of Nairobi, a Post Graduate Diploma Holder from the Kenya School of Law, a Masters Graduate from Kings College, University of London and a Doctorate Holder from the university of South Africa. He also hold a Diploma in French from Alliance Francais. He said that he is the only Professor of Law who has been conferred with the status of Senior Counsel who can speak French;

57. The plaintiff sad he is a respected family man; a person of known good reputation, a religious Christian man who holds the position of a church elder in his local church and a man of unrivaled success in the legal profession and high standing in the society;

58. He said he is a legal scholar of international repute and to that effect he has published various books and peer reviewed articles; consulted for various agencies and presented articles in over 20 countries all over the world.

59. At all material times relevant to this suit, he was and still is an Advocate of the High Court of Kenya practicing within the Republic of Kenya and other Commonwealth Jurisdictions. Further, at all material times relevant to this suit, he had been retained as an Advocate of the Mumias Sugar Company Limited through a competitive process in which his Law Firm was listed as among the prequalified law firms and scored 70%, a percentage which was way above the pass mark percentage being 50 %. He said he meticulously and diligently represented the sugar company in various briefs;

60. Despite his undisputed success as a legal scholar and an Advocate conferred with the status of a Senior Counsel, the Defendant herein, in a Report titled Mumias Sugar Company Limited Draft Forensic Investigation Report dated 8th July 2014 at pages 104-105 thereof, the Defendant unilaterally, maliciously, recklessly, negligently and in utter disregard of its professional duty as Forensic Auditors negligently and without any justification whatsoever, published and caused to be published the impugned Article.

61. The said published words as used, expressly, are defamatory to him as the words in their natural and ordinary meaning, as the Defendant intended, meant and was understood to mean:a.That he is a scofflaw who violates laid down rules and regulations on procurement of legal services;b.That his law firm was not in the prequalified list of Lawyers representing Mumias Sugar Companyc.That he was merely handpicked by the Company's Secretary to render the legal services so required by MSCd.That he was not qualified to undertake the tasks that he had been assigned to undertake

62. Further, in the Report titled Mumias Sugar Company Limited Draft Forensic Investigation Report dated 8th July 2014 at pages 328 thereof, the Defendant unilaterally, maliciously, recklessly, negligently and without any justification whatsoever, published and caused to be published defamatory words of and concerning the plaintiff and his law firm as follows:“Emily Otieno advised MSC to single source legal services from Prof. Tom Ojienda, without following the due process,"

63. The plaintiff said that the said published words as used, expressly, words are defamatory to him as words in their natural and ordinary meaning, as the Defendant intended, to mean;vii.That he is a scofflaw who violates laid down rules and regulations on procurement;vii.That his law firm was not in prequalified list of lawyers representing Mumias Sugar Company Limitedix.That he was merely handpicked by the Company's Secretary to render the legal services so required by Mumias Sugar Company Limitedx.That he is not qualified to undertake the tasks that I had been assigned to undertake

64. Further, that the Defendant never attempted and negligently failed to interview him in order to get his point of view before making and publishing the Draft Report. This notwithstanding, the Defendant proceeded to make the impugned defamatory statements.

65. The Defendant did not take into consideration the fact that the his Law firm had been listed among the prequalified firms in the years 2013-2015 and which could therefore be legally contracted to take up any matter if need arose by MSC.

66. The Defendant did not take into consideration the 2013-2015 Goods and Services Suppliers prequalification Report particularly at Paragraph 7 thereof which made provision for 'prequalification for provision of legal services “MSC/PM/D/15487” the Article read that “34 firms applied in this category. Recommendation: we recommend to the MTC for the prequalification for the below highlighted 29 firms which have scored above 5% pass mark in the category”. The article then proceeded to give the percentages that each law firm that had applied got. At position 12 was the plaintiff’s law firm where it was allocated a percentage of 70%. Th plaintiff’s law firm scored way above the laid down percentage pass mark which was 50%.

67. The Defendant did not take into consideration that in the provision of legal services, the normal tendering processes are not adhered to as this would amount to touting or canvassing in contravention of the Advocates Act CAP 16 which prohibits the same.

68. Consequently, the same advocates are put on record in matters that they are shown to have expertise in and not merely as a result of a bidding process. More importantly is the fact that once a law firm is listed among the prequalified list, then all that is considered is the expertise of the particular advocate that is chosen to handle that matter;

69. The Defendant did not take into account that the matters that they listed to have been assigned to the plaintiff by the Company Secretary selectively were matters that came up AFTER his law firm had been prequalified among the first 29 law firms that scored above the pass mark. Therefore, to aver that the plaintiff’s Law firm was selectively picked amounts to gross misrepresentation in the highest form and misreporting to the public that relies on such audit reports to get to know about the ongoing of the companies that they intend to invest in.

70. To therefore say that the plaintiff’s law firm was single sourced and handpicked to handle particular cases for Mumias Sugar Company limited is erroneous to the core as that is not only a complete misrepresentation of the facts as they were but that is in complete violation of the legally acknowledged ways of procuring legal services;

71. At Paragraph 1. 3 of the Draft Report complained of herein, the Defendant asserts that the Draft Report was not a public document but an internal document prepared for the exclusive use of Mumias Sugar Company Limited. However, despite this Clause and its obviously inconclusive nature, the Defendant proceeded to forward the same inconclusive and negligently prepared Draft Report that contained false and deleterious allegations against the plaintiff as a person and his law firm to parliament as if the report were a final document that had been prepared upon hearing his side on the grossly misleading allegations made against the plaintiff;

72. The Defendant just noted that a total of 7,000,000 shillings was paid to the plaintiff via cheque number 72429. This is quite misleading as the Defendant failed to note that this payment was made in lieu of the legal services that had been provided for by the plaintiff’s Law Firm in the Option Two in which matter the Company ought to have paid his law firm 10,000,000 shillings in accordance with the Advocates Remuneration Order. Further, the Defendant failed to report that this payment was made in view of the Fee note that had been raised by his law firm in view of the legal services that had been provided to MSC in Mumias Sugar Company Versus The Option Two Limited and James Ndungu Mboi and Serah Wambui Ndungu 1/A Kanini Haraka Enterprises on infringement of trademark and passing off suit. The payments were therefore legal and not whimsical and unjustified as is purportedly inferred in the draft report.

73. The Defendant withheld it from the public in its Draft Report that nowhere was the retention of KPMG Kenya Audit approved by shareholders at an Annual General Meeting or at all for purposes of conducting an audit of Mumias Sugar Company as required under the Companies Act;

74. The Defendant withheld it from the public in its Draft Report that the allegations they were purporting to raise concerned issues that were already audited by Deloitte and Touch, a professional firm of auditors, whose opinion the Defendant never sought in compiling the so called Forensic Audit Report;

75. The plaintiff said that he is aware that he had a right to be heard before the publication of the deleterious allegations against him and his Law Firm in relation to the provision of legal services to Mumias Sugar Company Limited. However, the Defendant never notified him of the allegations that it published against me and never gave me a chance to be heard on the same in utter and blatant disregard to the principle of Audi Alteram Partem. He further contends that the Defendant's publication was reckless, negligent and malicious and had the Defendant notified him of its deleterious publication regarding HIS provision of legal services to Mumias Sugar Company Limited, then he would have readily informed KPMG as follows:a.Firstly, Mumias Sugar Company Limited duly prequalified his firm, being Prof. Tom Ojienda & Associates, into the Company's panel of Advocates to provide legal services and at all material times to this publication, that his firm was in the Company's panel of Advocates.b.Secondly, the case of Nairobi HCC No. 463 of 2013: Mumias Sugar Company Limited versus The Option Two Ltd & 2 Others was a Commercial dispute filed by Mumias Sugar Company Limited seeking orders that the court declares that the packaging, distributing, supply and/or sale or passing off of Option Two sugar as if it was Mumias Sugar infringed on the Registered trademarks of Mumias Sugar Company Limited and occasioned Mumias Sugar Company immense losses for which the Company sought to be compensated. The value of the subject matter in that case was the tonnage of the infringing sugar targeted for destruction which was 6,500 tonnes of Option two Sugar, worth Kenya Shillings Four Hundred Million (400,000,000. 00). Under the Advocates Remuneration Order, my firm was by law entitled to charge Mumias Sugar Company Limited Kshs. Ten Million (10,000,000. 00) in instruction fees alone, exclusive of disbursements and VAT. Consequently, in fact MSC still owes his firm sums of money for the legal services provided for in that matter.c.Thirdly, and most critical, the defendant's publication that Mumias Sugar Company Limited single sourced his firm to provide the legal services, is, with respect, very misguided. Once firms of Advocates were prequalified into a panel of Advocates, Mumias Sugar Company Limited had the discretion to pick any of the prequalified firm of Advocates for any brief. The defendant's opinion that a Company would be advertising for legal services every time it is sued or seeks to sue is untenable, to say the least. Neither is it supported by any law. Had the defendant notified him of its publication prior to the publishing, he would have, freely, brought to its attention, the decision of Lady Justice K. H. Rawal (Now Supreme Court Judge) in the case of Thiong'o Njiri & 81 Others versus the Municipal Council of Kiambu & Another, Nairobi HCCC No. 499 of 2010 [2011] eKLR which is referred to above.

76. That by reason of the publication of the aforesaid words, the plaintiff’s reputation has been lowered in the estimation of right thinking members of the Public and his reputation as a State Officer; a high-ranking citizen; a Senior Counsel; a celebrated Scholar; a former Council Member, International Bar Association; a former Vice-President, Pan African Lawyers Union; a former President, East Africa Law Society; and a former Chairman, Law Society of Kenya as well as a respectable family man has been seriously and irretrievably tainted and blemished. That further, the reputation of his law firm has been irreversibly tainted as the firm has been depicted as a procurement flawing firm that does not need to be considered by any serious corporation that is seeking legal services both nationally and internationally;

77. The plaintiff said that in publishing the aforementioned words by the Defendant concerning him, the Defendant was in utter breach of it professional duty and it is in lieu of this disregard of its professional duty that it negligently misrepresented the facts to the Mumias Sugar Company Limited, the Parliament of Kenya and indeed the entire public that:d.The plaintiff’s firm of Prof. Tom Ojienda & Associates was selectively handpicked to handle the Option Two matter without any competitive selection whatsoevere.The firm of Prof Tom Ojienda was not among the firms that had been listed in the prequalified list of advocatesf.That the plaintiff’s law firm was wrongly paid 7,000,000 shillings by Mumias Sugar Company Limited

78. The plaintiff said that he further aware that it is in utter disregard of their professional duty to both Mumias Sugar Company and him that the Defendant failed to conduct due diligence and consult on the manner of procurement of legal services and therefore negligently published to the public that his law firm flawed procurement procedures yet it was held by justice Rawal that legal services cannot be procured in the normal manner that other services and goods are procured as that it would be a complete violation of the Advocates Act and Advocates practice in general;

79. The plaintiff stated that had the Defendant conducted due diligence then they would have had their attention brought to the judgment by Justice Rawal on the provision of legal services in the case of Thiong'o Njiri & 81 Others versus the Municipal Council of Kiambu & Another, Nairobi HCCC No. 499 of 2010 [2011] eKLR.

80. It is as a result of this negligent act of failing to conduct due research on the manner of procurement of legal services and/or negligently failing to interview him that led the Defendant herein to falsely, maliciously, recklessly and negligently misrepresent the facts to the general public that the plaintiff’s law firm had been handpicked by the then legal officer Emily Otieno to act for Mumias sugar Company Limited in the Option Two matter;

81. That the legal aspect aside, the plaintiff is aware that the Defendant herein negligently misrepresented to the public the facts regarding the procurement of the legal services by the plaintiff’s law firm by conveniently failing to disclose to the public that the plaintiff’s law firm was in fact in the prequalified list of Advocates. Sadly, the Defendant in shameless disregard of the professional duty that it owed the plaintiff and his firm misrepresented to Mumias Sugar Company, the Parliament of Kenya and indeed the entire public that the plaintiff was in fact but merely handpicked by the then company Secretary Ms Emily Otieno;

82. It is against this background that KPMG having duly being contracted to conduct the Forensic Audit of the affairs of Mumias Sugar Company Limited owed a duty to Mumias Sugar Company to table the accurate facts in relation to the Forensic Audit at the very least;

83. The plaintiff said that he is aware that in total opposite and breach of their professional duty as Forensic Auditors contracted by Mumias Sugar Company Limited, the Defendant herein negligently misrepresented facts to Mumias Sugar Company Limited, the parliament of Kenya and indeed the entire public that his law firm had been but selectively handpicked by the then company secretary Ms; Emily Otieno;

84. The plaintiff said that he is aware that this gave the impression that his law firm and the plaintiff as the advocate conducting that matter was not in the prequalified list of Advocates/ law firms that represented Mumias Sugar Company Limited and that he had been paid seven million shillings by Mumias Sugar Company Limited for no reason whatsoever;

85. The Defendant being the Forensic Auditor had in its capacity and without any form of difficulty whatsoever the ability to get the records concerning the prequalified lists of lawyers that were acting for Mumias Sugar Company Limited.

86. The plaintiff said that he was aware that all the records concerning the affairs of the company were availed to the Defendant but the Defendant still chose to negligently misrepresent to Mumias Sugar Company limited, the parliament of Kenya and indeed the entire public that the plaintiff’s law firm had been selectively handpicked to handle the Option Two Matter;

87. The question then is 'whether the Defendant meets the threshold of the standard of the ordinary skilled man exercising and professing to have that special skill?' The other question is 'would any reasonable audit firm conducting the same audit have seen these gross misrepresentations?'

88. The plaintiff said that he is aware that the answer is 'yes' and not only was the Defendant advised on the legal impact of the Report but the Defendant/Respondent was availed to all he records available for the provision of the legal services by Mumias Sugar company Limited. They had no reason whatsoever to fail to go through the records that were readily availed to them they would have found out that the plaintiff’s law firm was indeed listed among the prequalified law firms that rendered legal services to Mumias Sugar Company Limited at the time in question;

89. That instead, the Defendant proceeded, in express breach of its professional duty, to negligently misrepresent to Mumias Sugar Company Limited, the Parliament of Kenya and indeed the entire public that he was selectively handpicked to represent Mumias Sugar Company, a misrepresentation indeed as:d.Mumias Sugar Company Limited duly prequalified his firm, being Prof. Tom Ojienda & Associates, into the Company's panel of Advocates to provide legal services and at all material times to this publication, the plaintiff’s firm was in the Company's panel of Advocates.e.The case of Nairobi HCC No. 463 of 2013: Mumias Sugar Company Limited versus The Option Two Ltd & 2 Others was a Commercial dispute filed by Mumias Sugar Company Limited seeking orders that the court declares that the packaging, distributing, supply and/or sale or passing off of Option Two sugar as if it was Mumias Sugar infringed on the Registered trademarks of Mumias Sugar Company Limited and occasioned Mumias Sugar Company immense losses for which the Company sought to be compensated. The value of the subject matter in that case was the tonnage of the infringing sugar targeted for destruction which was 6,500 tonnes of Option two Sugar, worth Kenya Shillings Four Hundred Million (400,000,000. 00). Under the Advocates Remuneration Order, my firm was by law entitled to charge Mumias Sugar Company Limited Kshs. Ten Million (10,000,000. 00) in instruction fees alone, exclusive of disbursements and VAT. Consequently, in fact MSC still owes his firm sums of money for the legal services provided for in that matter.f.The defendant's publication that Mumias Sugar Company Limited single sourced his firm to provide the legal services, is, with respect, very misguided. Once firms of Advocates were prequalified into a panel of Advocates, Mumias Sugar Company Limited had the discretion to pick any of the prequalified firm of Advocates for any brief. The defendant's opinion that a Company would be advertising for legal services every time it is sued or seeks to sue is untenable, to say the least. Neither is it supported by any law. Had the defendant notified me of its publication prior to the publishing, he would have, freely, brought to its attention, the decision of Lady Justice K. H. Rawal (Now Supreme Court Judge) in the case of Thiong'o Njiri & 81 Others versus the Municipal Council of Kiambu & Another, Nairobi HCCC No. 499 of 2010 [2011] eKLR, wherein the learned Judge expressed herself as follows:“In my considered view, the inclusion of service of an advocate to be procured by advertising and the procurement process could and does involve the breach of the provisions of the Advocates' Act, the Advocates' Remuneration Order as well as the Advocates (Practice) rules. I do wonder how an Advocate could bid to tender for legal service simpliciter. How an Advocate could place the economic provision for legal services in the tender without the claim, value or nature of claim being specified. The legal charges shall vary according to each and every case which the local authorities might file or defend. Inviting bid for legal services per se could contravene the spirit and purport of the Advocates Act which is a specific Act and prior in time. If the local authority needs the services for a specified case, the insistence of undergoing procurement process shall be self defeating due to the court procedure."

90. The plaintiff’s claim against the Defendant therefore is for an order of mandatory injunction compelling Eric Aholi, Charles Appleton, Brian Desouza, Anis Pringle, Josephat Mwaura, Jacob Gathecha, Joseph Kariuki, Benson Ndung'u And John Ndunyu and any other Partner of KPMG Kenya, jointly and severally, to, within two days of the Judgment hereof or such period as directed by Court, publish an apology to him in at least two newspapers of National Newspapers of national circulation, unequivocally retracting and revoking the defamatory articles complained of, and in a manner as prominent as the offending defamatory articles;

91. Further, the plaintiff seeks an order of permanent injunction restraining Eric Aholi, Charles Appleton, Brian Desouza, Anis Pringle, Josephat Mwaura, Jacob Gathecha, Joseph Kariuki, Benson Ndung'u And John Ndunyu and any other Partner or agent of KPMG Kenya from further publication of the defamatory articles that he has complained of herein or any other defamatory article, words, material, testimony or remarks against, of and concerning him in relation to the provision of legal services to MSC by my Law firm particularly Prof. Tom Ojienda & Associates, Advocates; general and aggravated damages; interest thereon and cost of this Plaint;

92. The plaintiff said he has read and understood the Constitution of Kenya which places a duty upon the Defendant to respect his reputation while publishing any documents or articles concerning him. He therefore believes that ingrained in its right to report its finding, is the duty upon the defendant to ascertain the accuracy of the information or ideas about him that it intends to impart to the public.

93. In cross examination, PW 1 confirmed that this claim arose out of a forensic report dated 8/7/2014 from the defendant to Mumias Sugar Company (MSC).

94. PW 1 said the report is called a draft and the same was unilateral since the plaintiff’s input was not sought.

95. The plaintiff said the publication referred to various court cases and the KPMG report is one of the cases.

96. PW 1 said he did not have a letter of appointment from MSC. He said his name was on page 71 where the prequalified firms were indicated and he said it was obvious there was communication to him from MSC to act for them in cases.

97. PW 1 said there was no single sourcing for legal services and that he was in the prequalified team.

98. PW 1 further said in cross-examination that legal services are distinct from other services in that once a lawyer is prequalified, the firm can be appointed and that issue is at the core of this case.

99. PW 1 said the insinuation in the KPMG report was that Emily Otieno had picked the plaintiff to act for MSC.

100. PW 1 said the report stated that they got instructions from Emily Otieno but his firm was prequalified.

101. PW 1 also said the defendant did not contact him before submitting the report.

102. PW 1 further said that bidding is not done in procurement of legal services since that would lead to undercutting and it is against the advocate remuneration order.

103. PW 1 also said the defendant knew or ought to have known that other parties would lay hold of the report and therefore the defendant ought to have verified the information contained in the report.

104. The plaintiff (PW 1) also said he challenged the appointment of the defendant which was not done by stakeholders in general meeting.

105. In re-examination PW 1 said it was the defendants report that led to the newspaper articles which form the basis of this case.

106. PW 1 said it was malicious and negligent for the defendant to say PW 1 was handpicked when he was prequalified.

107. PW 1 said if his law firm was not prequalified then whatever he did had legal ramifications.

108. He said they were issued with a letter of instructions dated 11/9/2013 at page 253 of the plaintiff’s bundle.

The Defendant’s Evidence 109. The defendant called one witness (DW 1) Brian Dsouza who adopted his written statement dated 12/4/2016 as his evidence in chief.

110. DW 1 said MSC reached out to them to do a forensic report evaluating their team members from finance department to the HR and the factory.

111. DW 1 said accordingly to their findings, the plaintiff was not a prequalified to supply legal services.

112. DW 1 said the list referred to by the plaintiff at page 71 of the plaintiff’s bundle referred to recommendations by the Mumias Tender Committee (MTC) who had the authority to prequalify staff.

113. DW 1 said they were not the external auditors of MSC but forensic investigators. He said they were appointed by the board of MSC and they had specific terms of engagement.

114. DW 1 said they were not investigating the suppliers but the process of appointing the suppliers.

115. DW 1 said the newspaper reports did not refer to their forensic report.

116. DW 1 said the reports referred to cases filed by Evans Kidero who was a former Managing Director of MSC.

117. In cross examination, DW 1 said Evans Kidero filed a suit against the defendant.

118. DW 1said he shared the report with the National Assembly. He said the forensic report was in draft form.

119. DW 1said he also shared the forensic report with Ministry of Agriculture, Fisheries and Food Authority on 6/11/2014.

120. DW 1 confirmed he authored the draft forensic report where they stated standard procedures were breached.

121. DW 1 said he did not need to interview the suppliers since he was required to investigate the internal processes of appointing suppliers.

122. DW 1 also said the defendant signed a contract with MSC contained at page 12 of their bundle of documents.

123. DW 1 said the contract signed by the CEO Mr. Otulo was their engagement letter.

124. DW 1said the defendant did not need approval from the general meeting in order to undertake the assignment of doing a forensic investigation.

Plaintiff’s Submissions. 125. The plaintiff submitted that his claim against the Defendant is that the Defendant published a defamatory Draft Report titled Mumias Sugar Company Limited Draft Forensic Report dated 8th July, 2014 hereinafter referred to as (‘the Draft Report’).

126. The Plaintiff further submitted that he has sufficiently demonstrated that the statements in the Draft report were defamatory and that he has proven that the Defendant did indeed publicize the report.

127. The Plaintiff submitted that he has satisfied all the elements required to establish a case for defamation as he has proven that: the statements in the Draft Report are defamatory, the statements refer to the Plaintiff, the statements are false, the statements were published and republished by the Defendant, and that the Defendant’s publication of the statements was actuated by malice.

128. Citing the case of John Ward v Standard Limited (2006) as cited in Raphael Lukale vs Elizabeth Mmayabi & Another (2018) on ingredients of defamation.

129. The plaintiff submitted that it is trite in law that in defamation, one must prove that the defendants communicated the words complained of to another person.

130. The Plaintiff submitted that the draft report was forwarded to Mumias Sugar Company. Moreover, although the draft report was intended to be an internal document solely for Mumias Sugar Company the defendant negligently forwarded the same to the Agriculture, Fisheries and Food authority on 10th November, 2014, the Capital Markets Authority and Parliament on 9th December 2014.

131. That at trial the Defendant through its witness Mr. Brian Dsouza admitted to having published the Draft report and forwarding the same to the Agriculture, fisheries and Food Authority and Parliament and that it is against this background that the Plaintiff submitted that the defendant published and republished the Draft Report.

132. The Plaintiff submitted that the words complained of are defamatory to the him as the words implied and were understood to mean that the Plaintiff: violates procurement rules and regulations, was not on the Prequalified List of lawyers for Mumias Sugar Company and was handpicked by the Company Secretary and that the statement also suggests that the Plaintiff was not qualified for the tasks assigned and lacks integrity.

133. He submitted that the draft report lowered his reputation by implying that the Plaintiff is a beneficiary of a flawed procurement procedure, thereby casting doubt on his qualifications, and imputing corruption.

134. Further the Plaintiff submitted that the publication of the Report resulted in reputational harm, as it falsely suggests malfeasance and lack of integrity on the part of the Plaintiff, thus causing objective third parties to question the Plaintiff’s professional qualifications and ethical conduct, as evidenced by subsequent newspaper articles tarnishing his image.

135. The Plaintiff sought to rely on the case of Joseph Njogu vs Charles Muriuki Gachari (2016) eKLR, where the court held that:“A defamatory imputation is one a man’s discredit, or which tends to lower him in the estimation of others, or to expose him to hatred, contempt or ridicule, or to injure his reputation in his office, trade or profession, or to injure his financial credit. The standard of opinion is that of right-thinking persons generally. To be defamatory an imputation need have no actual effect on a person’s reputation; the law looks only to its tendency.’’

136. He submitted that notwithstanding the Defendant’s purported intent to report on alleged flawed procurement procedures within Mumias Sugar Company, the adverse mention of the Plaintiff in the said Draft Report is such that any reasonable and objective person reading is likely to infer that the Plaintiff is corrupt, lacks integrity and was not qualified to perform the assigned tasks.

137. The Plaintiff sought to rely on the case of Musikari Kombo v Royal Media Services Limited (2018)

138. The Plaintiff submitted that his reputation has been lowered in the estimation of right thinking members of the public and his reputation has been tainted and blemished. The Plaintiff submitted that the statement referred to him and that there is no contention that he was adversely mentioned at pages 104-105 as well as page 324 of the Draft Report.

139. The Plaintiff relying on the case of Thiong’o Njiiri & 81 Others versus the Municipal Council of Kiambu & Another (2011) submitted that the statements contained in the Draft Report are false and that the defendant failed to consider that the normal tendering process are not usually adhered to as this would amount to touting in contravention with the Advocates Act. The Plaintiff further submitted that the burden of proof is upon the Defendant to furnish any other list of prequalified law firms.

140. The Plaintiff submitted that there was malice on the part of the defendant in writing and publishing the Draft Report, and that the same was intended to lower the Plaintiff’s esteem.

141. To bolster their argument, the Plaintiff cited the case of: John Patrick Wachira vs Wangethi Mwangi & Another (1996) where it was stated that:“Malice can be inferred from deliberate or reckless or even negligent ignoring of facts as can be deliberate lies.”

142. The Plaintiff’s submitted that its firm was adversely mentioned in the report despite the several firms contracted to act for Mumias Sugar Company the Plaintiff’s firm was the only one mentioned at page 104-15 as well as page 324 of the Draft Report and that the defendant also agreed at the trial to the fact that the Plaintiff’s firm was the only firm mentioned in the report.

143. It’s their submission that the defendant failed to interview the Plaintiff to obtain the Plaintiff’s point of view prior to publishing the Report a fact that was corroborated by the Defendant at the trial who testified that the Plaintiff was never interviewed although his firm was adversely mentioned in the Report. Further, the defendant failed to take into account the fact that the Plaintiff’s law firm had been listed among prequalified law firms in the years 2013-2015 and hence could be legally contracted to take up any matter if need arose.

144. The Plaintiff submitted that malice is further evidenced by the fact that although the report was an internal document prepared for exclusive use of Mumias Sugar Company, the Defendant proceeded to forward the same to other institutions.

145. He submitted that the suit is not time barred and that time began to run when the Plaintiff became aware of the publication of the Draft Report and that the Plaintiff had no prior knowledge of the Draft Report prior to March 2015 when he was instructed by Dr. Evans Kidero. Citing the case of John v Ballingall, 2017 ONCA 579, where the Court of Appeal for Ontario held that:“The clock begins to run when the appellant knew that statements were made that might be considered libellous (para 36).”

146. He further submitted that for each separate publication, the Plaintiff got a distinct cause of action and that the Plaintiff had demonstrated that the Defendant published and republished the Draft Report by forwarding the same to Parliament. In this case, the Defendant is liable for each and every publication that was made subsequently after Draft Report was authored. Citing the case of: AARC Society v Canada Broadcasting Corporation, 2019 ABCA 125.

147. The Plaintiff submitted that the suit was instituted within twelve months as time began running in March 2015 when the Plaintiff became aware of the publication of the Report. Moreover, each separate publication amounts to a distinct tort which follows that there is different limitation period of action.

148. He further said in his submission that the suit is not only pegged on defamation but also professional negligence and the Plaintiff submits that the defendant acted negligently in preparing the Draft Report dated 8th July, 2018.

149. The Plaintiff submitted that the defendant was not properly appointed to carry our forensic investigation for Mumias Sugar Company Limited. The Plaintiff relied on the provisions of Section 721(4) of the Companies Act which provides for the appointment of auditors of a public company.

150. He further submitted that the provisions of Section 721 are couched in mandatory terms as Section 721(5) expressly provides that: ‘An auditor or auditors of a public company may be appointed only in accordance with this section or section 722. ’

151. The Plaintiff submitted that the appointment by Mumias sugar Company required a resolution at a general meeting, which was not evidenced and that without documentation of such approval, the Defendant was not properly appointed for the Forensic investigation.

152. The Plaintiff cited the case of Gabriel Mugai Njiri vs Wanga Robert Hawi t/a R.H Wanga & Co Advocates (2018):“professional negligence will normally arise when a person does not exercise the degree of skill, duty and care of a reasonable person in that profession.”

153. The Plaintiff submitted that the defendant negligently published the defamatory Report in due breach of its professional duty to Mumias Company and to the Plaintiff whose firm was negatively depicted as violating procurement processes and further the defendant breached its professional duty by negligently misrepresenting facts, alleging the Plaintiff’s firm was improperly selected, and by failing to conduct due diligence before publishing claims of flawed procurement procedures.

154. The Plaintiff submitted that the defendant owed him a duty of care and that there a direct fiduciary relationship is not required to sue for negligence. The defendant owed a duty of care to the Plaintiff, as the Plaintiff’s firm was negatively depicted in the Draft Report. Citing the case of: Hedley Byrne v Heller & Partners Ltd(1964).

155. He submitted that the Defendant having been duly contracted by Mumias Sugar Company limited owed a duty to table accurate facts and that the Defendant also admitted at trial that once aa report is published they are not in control of who the Report reaches, to that end the Defendant owed all parties mentioned in the Report a duty of care to ensure that the contents of the Report were accurate.

156. In submitting that the Defendant had breached the duty of care, the plaintiff cited the case of : Kenya Commercial bank vs Philip Odongo Kabita T/A Odongo Kabita Valuers (20020: the court stated that “ To err may be human, but for a professional to err as a result of not applying skills and tools is negligence in any language.”

157. He submitted that the Defendant breached its duty of care by neglecting to review the prequalification list of lawyers and failing to interview the Plaintiff about procurement processes and the Defendant erroneously alleged selective selection of the Plaintiff’s firm and negligently forwarded an internal draft to Parliament, thus misrepresenting facts and failing to exercise due skill.

158. The Plaintiff submitted that the Defendant’s failure to exercise the requisite standard of reasonable care and skill thereby caused the Plaintiff to incur substantial losses.

159. He submitted that all requisite elements of defamation and professional negligence had been established.

160. The Plaintiff urged the Court to award him Kshs.10,000,000/= as general damages and Kshs.15,000,000/= as aggravated damages. Citing the case of Nicholas Biwott vs Clay Limited & Another where a sum of KShs.30,000,000/= was awarded for publications that clearly had international circulation as well as local circulation.

161. It further submitted that the damages are aggravated by the fact that malice can be inferred from the circumstances and that it was the Plaintiff’s firm adversely mentioned in the Report. The Plaintiff is thus entitled to aggravated damages of Kshs.15,000,000/=

162. In conclusion, the Plaintiff submitted that it has proven all elements of defamation; the statements in the Draft Report are defamatory, the statements refer to the Plaintiff, are false, were published, and were made with malice, and the suit was timely filed.

163. It’s the Plaintiff’s argument that the Defendant breached its professional duty to Mumias Sugar Company and the Plaintiff, causing loss. In the end the Plaintiff seeks Kshs.10, 000,000/= in general damages, Kshs.15,000,000/= in aggravated damages and that judgment be entered for the Plaintiff against the Defendant together with costs.

DEFENDANTS SUBMISSIONS. 164. The Defendant submitted that by a letter of Engagement dated 7th May 2014. Mumias Sugar Company Limited (MSC) engaged KPMG to undertake factual findings forensic investigation in respect of aspects relating to the operations of MSC (Page1-12 of the defendant’s bundle of documents.

165. It’s engagement was informed by concerns by the Board of MSC the reviewing operational performance, it (the Board) had reasons to believe that certain transactions entered into by management had been in breach of established polices and procedure.

166. The Defendant submitted that the Letter of Engagement outlined the primary objective of investigations which was to review transactions under three key (3) areas and relevant to this case was the review of procurements done by MSC, where KPMG was to inter-alia, ascertain whether appropriate procurement and disposal procedures were followed in making procurement decisions for all the transactions above Kshs.5. 000. 000. 00 and to review internal audit reports on matters relating to the procurement function (see page 23 of the defendant's bundles).

167. The defendant submitted that KPMG dutifully undertook the investigation On 8 July, 2014, the defendant published MSC a Draft Factual Findings Report (KPMG Report page 76 to 247 of the Plaintiff’s bundle of Documents and it was at all times understood that the report was for the sole use of the MSC.

168. The Defendant submitted that by a letter dated 5th November 2014 (page 20 of the defendant's bundle) MSC authorised the release of the report to the Acting Chief Executive Chief officer of the Capital Markets Authority and to the interim Director General of Agriculture and Fisheries and Food Authority.

169. The Defendant submitted that by letter of the same date (page 77 of the Plaintiff’s bundle), KPMG forwarded the Draft Factual Findings Report as requested it is worth noting that as at that date KPMG had not received final comments from MSC to enable it update the draft and release a final report.

170. It submitted that by a letter dated 9th December, 2014 (page 21 of the Defendant’s bundle) the Clerk of the National Assembly made reference to the appearance by the acting Managing Director of MSC before the House’s Committee on Agriculture, Livestock and Corporations and to the request by the Committee for MSC to submit the KPMG report and further asked MSC to comply with the request to submit the report.

171. The Defendant submitted that draft report pointed out various lapses on the areas that KPMG had been engaged to investigate. With reference to procurement, it noted that MSC did not comply with its procurement policies in the engagement of the plaintiff’s law firm for the provision of legal services in the matter of Mumias Sugar Company Limited versus The Option Two Limited and Others, HOCC No. 463 OF 2013. The plaintiff has produced a letter dated 11th September 2013 (page 253 of the plaintiff’s bundle) where MSC's Company Secretary/Legal Affairs Director gave instructions for the commencement of the suit

172. It submitted that KPMG's draft report is detailed as to its findings and that there is no contest that the plaintiff was engaged to act for MSC in the stated case, and that there was no evidence of any procurement from among any pre-qualified lawyers. There is no evidence of consideration of any Expressions of Interest or an invitation to submit any proposal for the handling of the matter

173. It further submitted that there is also no contest that the plaintiff received a fee for work done and that KPMG's finding was that the service was not competitively sourced for, and that the appointment was done on the advice of MSC's Director of Legal Affairs (Emily Otieno) to the Board of MSC.

174. The Defendant submitted that the plaintiff took issue with and claims that the words used were defamatory in their natural and ordinary meaning. He also complained that KPMG did not give him a chance to be heard on the procurement issues and findings set out in its draft report, and that he was owed a duty of care.

175. It filed its defence dated 12th April, 2016. It set out the matters outlined at paragraph 1 to 10 above. It denied that the words set out at paragraph 9 and 11 of the plaint bore or were capable of bearing the meanings pleaded by the plaintiff.

176. The Defendant’s denied that the plaintiff had any right to be notified, or that it (KPMG) was malicious, or owed any duty to the plaintiff in respect of the investigations it had been engaged to undertaken with reference to the internal processes of MSC. The defendant has also pleaded the defence of Limitation which it invites the court to determine first.

177. The Defendant submitted that during the cross examination of the plaintiff, the plaintiff confirmed the following;a)The newspaper articles at pages 248, 249 250 and 252 of the plaintiff's bundle of documents were with respect to Dr Kidero and the plaintiff was only mentioned as counsel for Dr Kidero. There was no reference in these articles, of the findings made with respect to the Plaintiff, or with respect to the litigation against Option Two Limited, filed in October 2013 which the plaintiff had been engaged by MSC to handle.b)The plaintiff was not part of the management of Mumias and that the Draft Report pointed out the gaps by Mumias in the internal procurement process.c)The plaintiff had the required expertise for the case he was appointed for and there was nothing in the report impugning his qualifications to represent MSC.d)Parliament had a right to call for documents relating to or in possession of MSC.e)Neither the plaintiff's name nor his law firm's names appear under the column of "name of individual" in the Report (as to the persons responsible for the process investigated) at pages 37 to 40 of the defendant's bundle.

178. It submitted that during re-examination the plaintiff contended that it is a requirement that auditors are appointed through an Annual General Meeting and that the defendant needed to show that they were appointed appropriately. It is not clear to the defendant what this assertion had to do with the claim for alleged defamation. The same has nonetheless been addressed in these submissions.

179. It further submitted that the defendant's case proceeded on 22nd May 2024. During examination in-chief Brian DeSouza -DW1 confirmed that:a)The appointment of Forensic Auditors is ad hoc and does not need the approval of shareholders at an Annual General Meeting. The defendant was appointed by the Board of Mumias through the engagement letter at pages 1-19 of the defendant's bundle of documents.b)The intended recipient of the Draft Report was the Board of Mumias through its Chief Executive Officer.c)The Mumias Tender Committee did not release a prequalification report after the evaluation team gave a report on the recommended suppliers All KPMG saw was the recommendations by the evaluation team.d)The procurement manager confirmed that there were no pre-qualification of legal services providers and that MSC relied on the advice of its Director for Legal Affairs.e)The defendant was appointed to investigate the internal process of appointment of suppliers of Mumias and not the suppliers themselves.f)The Draft Report was released to the National Assembly upon demand from the National Assembly itself.

180. The Defendant submitted that during cross examination DW1 confirmed that;i.The letter at page 77 from KPMG Indicated that it was forwarding a draft report.ii.The defendant was obliged to point out any departure in the existing standard procedures and policies of MSC, and to seek an explanation from the persons responsible for the processes. The plaintiff was not one such person.iii.DW1 was not aware of any arrest of the Plaintiff arising from the Draft Report or at all (indeed this is not a matter that was pleaded nor was any evidence led on it).iv.At the time of its report, there was no list of prequalified lawyers a fact that was communicated by MSC's procurement manager and which was correctly captured in the report.v.The defendant did not need to interview suppliers over internal processes of MSC.vi.The contents of the Draft Report were submitted to MSC for its sole use.

181. The defendant submitted that it published the Draft Report to MSC on 8th July 2014. On 6th November 2014, it published the Draft Report to the Agriculture, Fisheries and Food Authority and on 18 December 2014 the defendant published the draft report to the National Assembly, all on occasions of qualified privilege.

182. The defendant further submitted that it did not authorise any republication of the Draft Report as alleged by the plaintiff.

183. It submitted that Section 4(2) of the Limitation of Actions Act provides that,“an action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued. Provided that an action for libel or slander may not be brought in respect of any matter after the end of twelve months from such date."

184. It cited the case of: Gatley on Libel and Slander 13th Edition at paragraph 7-002, the author states that.“For limitation purposes, it is necessary to know when a tort is committed for the purposes of jurisdiction and applicable law it is necessary to know where it was committed. At common law, publication being the gist of libel and slander actionable without proof of special damage, the cause of action arises immediately after publication has taken place.’’

185. It further cited the case of: Wycliffe A. Swanya v Toyota East Africa Ltd & another [2009] eKLR the appellant took the position that the cause of action in the case of slander accrued when he started feeling the impact of the respondent's remarks at his workplace. The Court of Appeal disagreed and held that;“When does the cause of action in the case of slander accrue? The appellant submitted through counsel that, in his view, it accrued after he started feeling the impact of the respondents' remarks at his place of work in May 2006, then he filed the suit the subject to this appeal. The pleadings did not disclose where his place of work was apart from what was disclosed in paragraph 4 of the plaint. The counsel submitted further that this was within the limitation period. Unfortunately, the Limitation of Actions Act (Chapter 22 Laws of Kenya) does not say so. It says in case of libel or slander no action may be filed"after the end of 12 months from the date the cause of action accrued and we understand this to mean from the date the slanderous remarks are made"

186. It submitted that the Draft Report was published to Mumias on 8th July 2014 and the cause of action therefore accrued on that date, even taking the latest date when KPMG on the instruction of MSC forwarded the report to the Parliamentary Committee on Agriculture on 18 December 2014, the defendant submits that the plaintiff had until 18th December 2015 to file his claim for defamation and that the plaintiff's argument that time starts to run when he became aware of the publication finds no footing in the law as the Act does not run the clock from date of knowledge. Time starts to run from when the cause of action accrued, in this case, on 8th July 2014, and at the latest on 18m December, 2014.

187. It pointed out that the plaintiff seeks to rely on Canadian decisions to submit that time began to run when the plaintiff became aware of the publication. The laws of the Province of Ontario in Canada, specifically provide that time will start to run from 2 years from the time of knowledge. That is not the position under Kenyan Law.

188. It further submitted that the decision at paragraph 46 of the plaintiff's submissions for the submission that a new cause of action arises each time a third party sees the defamatory material is also not good in law in Kenya.

189. The defendant submitted that the Multiple Publication Rule does not apply in Kenya and cited the decision of Ngaah J in Royal Media Services Limited versus Valentine Mugure Maina and Another [2019] KLR

190. The Defendant further submitted that quite apart from the fact that the rule applied to publications on the internet, this rule ceased to apply to courts in England with the repeal of the Defamation Act of 2009 which was replaced by the Defamation Act of 2013. In the case cited above, the learned judge stated that,“………..the English have themselves abandoned the Multiple Publication Rule upon which these decisions were based it will be foolhardy for us in this country to follow those decisions when their very basis has been found wanting…….And that the Judge further reiterated that as far as libel is concerned, the cause of action accrues when the defamatory material is published and there being ample local decisions on the point, it is unnecessary to rely on decisions which are made with reference to the laws of other jurisdictions which have different legislative provisions vis a vis defamation, on the question of when time starts to run”.

191. The defendant submitted that any cause of action that the plaintiff may have had, which is denied, was time barred under the proviso to section 4(2) of the Limitation of Actions Act on the date when the Plaint was filed.

192. It submitted that this singular defence of Limitation ought to dispose of the matter entirely and in favour of the defendant.

193. The defendant submitted that while the words referred to make mention of the plaintiff, they did not refer to him, in that, they were descriptive of a process done or omitted on the part of MSC.

194. It is the defendant’s submission that there is nothing false in the fact that the plaintiff's firm was appointed to act for MSC in the case noted adding that there is also nothing false in the fact that a payment was made for services and there is also nothing false in the fact that the procurement manager confirmed that the service was sourced solely on the advice of Emily Otieno, and that prior to 2014, there was no pool of pre-qualified lawyers.

195. It submitted that the report and the words quoted had nothing to do with the plaintiff and they did not accuse the plaintiff or anything, did not impute anything of the Plaintiff nor could they possibly be extended to have the very subjective reference that the plaintiff attached to them.

196. The Defendant’s submitted that engagement between Mumias and the plaintiff is set out in the letter of 7th May 2014 at pages 1 to 19 of the defendant's bundle of documents and by virtue of that engagement KPMG was under a duty to Mumias to report the findings of the investigations and MSC had a legitimate interest in receiving the Draft Report.

197. It submitted that the passage from the Draft Report complained of in paragraph 9 of the Plaint is at paragraph 6. 2.4. 3 of the Draft Report. The section is titled, "Non-compliance to Single Sourcing procedures (Emergency and specialized acquisitions). This section of the Draft Report is at pages 103 to 115 of the Draft Report and is produced at pages 129 to 135 of the Plaintiff's Bundle of Documents. A complete set of the section of the Draft Report is at pages 23 to 35 of the defendant's bundle of documents.

198. The defendant’s submitted that at page 23, the 2nd paragraph from the bottom, the report states,“We found instances where services were single sourced from a supplier over time without proper price comparison being undertaken. The non-compliance to single sourcing procedures had been raised in the internal audit review report issued by PwC in December 2012 and in December 2013".

199. At page 24, paragraph 6. 2.4. 3.1, the Draft Report states that,“Section 2. 2 of the MSC (Mumias) Procurement Policies and Procedures Manual, stipulates that fairness, integrity and transparency should be observed in the procurement of services and works. The procurement system aims at procuring goods, services and works at the right quality, at the right price, at the right time and at the right place through an open competitive tendering process".

200. It submitted that the Draft Report further states that, "We found that legal services were single sourced from Professor Tom Ojienda on 2nd December 2013. Nyongesa informed us that this procurement was based on advice provided by Emily. We did not receive evidence of this advice. This contradicted the above provisions”. The paragraph then concludes by making reference to the words in bold at paragraph 9 of the Plaint.

201. The defendant submitted that the entire paragraph 6. 2.4. 3.1 deals with failures by the management and the employees of Mumias in the Implementation of the internal procedures of Mumias.

202. The Defendant’s further submit that Paragraph 6. 2.4. 3.1 deals with the selection of representative advocates and specifically with instructions issued to the plaintiff. The paragraph does not criticise the plaintiff. The passage which the plaintiff complains of is part of a section directed solely at the internal procedures of Mumias of which the plaintiff would have no knowledge.

203. The Defendant further submitted that Paragraph 7. 2, page 36 of the defendant’s bundle of documents, the Draft Report reads in part,“We found that the Mumias procurement procured was contravened in several instances. Examples of these instances are summarised below. MTC failed to carry out prequalification of suppliers every two years hence acting contrary to procedure, the prequalification exercise was not carried out for some categories of goods and services required by Mumias and services were single sourced from suppliers over time without proper price comparisons being undertaken nor single sourcing forms being utilized".

204. It submitted at paragraph 77 at page 37 of the defendant's bundle of documents, the Draft Report sets out the "Individuals Responsible". At page 39, Emily Atieno, who was the Director, Legal Affairs and Company Secretary of Mumias, is stated to be responsible for "Advising Mumias to single source legal services from Prof. Tom Ojienda without following the due process".

205. It further submitted that Paragraph 6. 2.4. 3 of the Draft Report, page 23 of the defendant's bundle of documents, states that, "section 6. 7.10 of Mumias Procurement policies and procedures manual states that;“Where goods or services are urgently required and there is insufficient time for any other procurement procedures, emergencies include, safety, a justification for the emergency must be documented which should be approved by the head of department and the head of finance or the MD before the procurement process can proceed The quotations can be requested urgently through email or phone calls to the potential suppliers.’’

206. The defendant submitted that the due process that Emily Atieno did not follow was the procedure for single sourcing as set out in paragraph 6. 2.4. 3 of the Draft Report.

207. The Defendant cited the case of Francis Cherono Ngeny & 11 others v Sammy Kiprop Kilach [2017] eKLR, where the High Court, at paragraph 24 of the ruling, held;“Given the above definition, it follows that for a plaintiff to succeed in an action on defamation, he or she must prove that the offending statement was not only published but that it exposed him to public ridicule, contempt and hatred or injured his reputation in his office, trade, profession or financial credit. The standard of opinion is that of right thinking members of society. To be defamatory, the words or statement must be proved to be false and malicious. The burden of proving that the words complained of were in fact defamatory lies on the plaintiff."

208. The defendant submitted that there is no reference to the plaintiff in the Draft Report as a person lacking integrity or a scofflaw and that the Draft Report at paragraph 6. 2.4. 3.1 shows that the retention of the plaintiff's services had been approved at five levels including the Finance Director and the Managing Director.

209. It submitted that there is nothing in the Draft Report to show any misconduct by the plaintiff or his firm. The reference to the plaintiff's law firm being handpicked does not suggest any misconduct by the plaintiff or his firm.

210. In Gatley on Libel and Slander, 13th edition at paragraph 15-005, the author states that;“The occasion [of qualified) privilege can never be catalogued and rendered exact, but the tendency of the courts has been to regard most privileged occasions under the common law as very broadly classifiable into two categories: first, where the maker of the statement has a duty (whether legal, social or moral) to make the statement and the recipient has a corresponding interest to receive it, or secondly, where the maker of the statement is acting in pursuance of an interest of his and the recipient has such a corresponding interest or duty in relation to the statement, or where he is acting in a matter in which he has a common interest with the recipient".

211. In Toogood v Spyring, English Law Reports, Exchequer Division, 1834, at 1044 to 1050, Parke B held that:“In general, an action les for the malicious publication of statements which act and injurious to the character of another (within the well-known limits as to verbal slander) and the law considers such publications as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs in matters where his interest is concerned.”

212. In the Francis Cherono Ngeny decision (supra) the High Court considered the defence of qualified privilege in defamation proceedings and affirmed Gatley on Libel and Slander 8th Edition page 441 paragraph 442 where the statements to which the defence of qualified privilege should apply are stated to include the following;a.Statements made in the discharge of a public or private dutyb.Statements made on a subject-matter in which the defendant has a legitimate interest.c.Statements made by the defendant to obtain redress for a grievance.d.Reports of parliamentary proceedings.e.Extracts from, or abstracts of, parliamentary reports, papers, votes, or proceedings published by the authority of parliament.

213. It submitted that it is not disputed by the plaintiff that the statements in bold at paragraphs 9 and 11 of the plaint are contained in the Draft Report prepared by the defendant in respect of MSC.

214. It further submitted that at paragraphs 10 and 11 of the defence, the defendant has set out the circumstances under which the Draft Report was published to the Agriculture, Fisheries and Food Authority on 6 November 2014 and to the Parliamentary Committee on Agriculture on 18th December 2014.

215. The Defendant submitted that with respect to the publication of the Draft Report to the Agriculture, Fisheries and Food Authority the defendant submits that Mumias was under a duty to report the findings of the investigations carried out by the defendant into the affairs of Mumias. The Agriculture, Fisheries and Food Authority had a legitimate interest in receiving the Draft Report and the delivery of the Draft Report to the Agriculture, Fisheries and Food Authority by the defendant on the instructions of Mumias was pursuant to the duty owed by Mumias as set out above.

216. The Defendant further submitted that with respect to the publication of the Draft Report to the Clerk of the National Assembly on behalf of Mumias, the defendant submits that the Government of Kenya through the Treasury owns 20% of shares in Mumias. By virtue of the shareholding of the Treasury in Mumias, Mumias was under a duty to report the findings of the investigations carried out by the defendant into the affairs of Mumias to the National Assembly in answer to the requests made by the National Assembly pursuant to Article 125 of the Constitution. The delivery of the Draft Report to the National Assembly by the defendant on the instructions issued by Mumias was pursuant to the duty owed by Mumias as set out above.

217. It submitted that it is manifestly clear that there was a reciprocity of interest in the publication of the Draft Report to Agriculture, Fisheries and Food Authority on 6th November 2014 and to the Parliamentary Committee on Agriculture on 18th December 2014 by the defendant and that the publication was covered by qualified privilege.

218. It further submitted that the engagement between the defendant and Mumias is set out in the letter of 7th May 2024 at pages 1 to 19 of the defendant's bundle of documents. The introduction part of the letter reads in part, "thank you for requesting us to assist in providing forensic investigative services to Mumias in respect of aspects relating to operations of Mumias"

219. The Defendant submitted that Paragraph 3 of the letter sets out the objectives of the investigation. The letter states in part,“The primary objectives of our investigations are to review transactions under three areas, Importation of sugar, procurement and commercial". Under Procurement, the areas under review were inter alia ascertain whether appropriate procurement and disposal procedures were followed in making decisions for all transactions above Kshs. 5 million, establish the roles played by individuals at Mumias and other external entities involved and review internal audit reports on matters regarding the procurement function"

220. The Defendant further submitted that Paragraph 4 sets out the scope of engagement and states in part, "our engagement does not constitute an audit or review...and consequently no opinion or conclusions will be expressed.’’

221. It submitted that Paragraph 8 of the letter sets out the reporting and restriction on distribution. The paragraph provides that the defendant shall report back to Mumias on the objectives detailed in section 3 above. "Reports and any other deliverables will be supplied on the basis that it is for the sole use of the parties to whom it is addressed and exclusively for the purposes set out therein. No other parties other than those to whom it is addressed may rely upon the report for any purpose whatsoever.

222. It further submitted that Paragraph 13. 3 of the letter of 7th May 2014 provides for information, documents and other working papers. The paragraph provides that’

223. ’All materials, documents and other information (whether written or oral) delivered, provided or made available by Mumias to the defendant during the engagement term, shall, to the best of management's belief and knowledge, be true and complete in all material aspects".

224. The Defendant submitted that the plaintiff's complaint that he was not interviewed by the defendant is appalling as the scope of the defendant's work was to interrogate Mumias' internal processes and highlight areas of non- compliance and the individuals (within MSC) responsible. As the plaintiff was independent from the selection and procurement processes of Mumias, the defendant had no basis to interview the plaintiff on whether the internal processes of MSC were complied with. This could only have been done if there had been a suggestion that the plaintiff had been involved in those internal processes

225. The defendant further submitted that it did not interview the plaintiff because the passages complained of by the plaintiff are directed at the internal procedures and functions of Mumias and these passages do not and were not intended to reflect on the plaintiff in any way.

226. The defendant submits that the only duty of care owed by the defendant was to Mumias as set out in the letter of engagement of 7th May 2014. The defendant did not owe the plaintiff a duty of care.

227. In Gatley on Libel and Slander, 13th edition, paragraph 18-002, the author states that,“proof of malice defeats the defence of common law qualified privilege. The traditional approach was put very clearly by Bankes J in Smith versus Streatfeild [1913] 3KB, 764, the principle upon which the law of qualified privilege rests is this that where the words are published which are both false and defamatory the law presume malice on the part of the person who publishes them. The publication, may however, take place under circumstances which create a qualified privilege. If so, the presumption of malice is rebutted by the privilege, and….the plaintiff has to prove express malice on the part of the person responsible for the publication.’’

228. In James Njagi Joel v Junius Nyaga Joel [2020] eKLR, Muchemi J held that;“It is trite law that the words complained of must be malicious. The term "malicious" does not necessarily mean "spite" or "ill will" but there must be evidence of malice and lack of justifiable cause to utter the words complained of”

229. In Phineas Nyagah v Gitobu Imanyara [2013] eKLR Odunga J (as he then was)held that;“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".

230. The defendant submitted that the scope of work that was to be done by the defendant in investigating matters on procurement was limited to all transactions above Kshs.5 million. The plaintiff's firm having been paid Kshs 7,000,000. 00 as fees for legal services was within the transactions under scrutiny by the defendant.

231. It submitted that the complaint by the plaintiff at paragraph 40 of his submissions on the payment of Kshs 7. 000. 000. 00 has not been presented within its context and the correct context is that the plaintiff’s firm was paid Kshs 7,000,000. 00 for legal services rendered by the plaintiff's firm to Mumias in the case of "Mumias Sugar Company versus The Option Two Limited and James Ndungu Mboi and Serah Wambui Ndungu t/a Kanini Haraka Enterprises on infringement of trademark and passing off. These details are set out at page 24 of the defendant’s bundle of documents, at paragraph 6. 2.4. 3.1 of the Draft Report.

232. It further submitted that the plaintiff alleges that his firm was prequalified to provide legal services to Mumias.The report at pages 35 to 75 of the plaintiff's bundle of documents is titled, "2023-2015 Goods and Services suppliers prequalification Report At paragraph 1 on members, the report states in part, "the following constituted the evaluation team from various departments. Under the subtitle background, the report reads, "the above team was mandated by MTC to open and evaluate the applications by the firms for the supply of goods and services to MSC for the period 203-2015. ’’

233. The Defendant submitted that the evaluation of applicants for provision of legal services is set out at page 71 of the plaintiff's bundle of documents. Under the subtitled "Recommendation", the report reads, "We recommend to MTC for the prequalification for the below highlighted 29 firms which have scored above 50% pass mark in the category.

234. The Defendant further submitted that the evaluation committee in its report only made a recommendation to the Mumias Tender Committee to prequalify the listed firms. There is no report before the court by the Mumias Tender Committee, adopting the recommendation of the evaluation committee so as prequalify the plaintiff's law firm. Indeed, there was no evidence by the plaintiff by way of a letter informing him that his firm had been successful in the pre-qualification process and had been selected as part of a pool of pre-qualified suppliers.

235. The defendant urged the court to look at page 43 and 45 of the defendant's documents which are notes of a meeting with Mr Michael Makokha, the procurement manager who confirmed that in the past, pre-qualification had not been done for the selection of MSC advocates and that they relied on the Company Secretary's office to do the selection. He made reference to an earlier internal audit which had made recommendations to pre-qualify lawyers (page 45) and confirmed that, that had not yet been done.

236. The defendant submitted that there is no evidence by the plaintiff to prove that the defendant acted with malice in publishing the Draft Report.

237. It submitted that its witness DW1 during examination in chief stated that the appointment of Forensic Auditors is ad hoc and does not need the approval of shareholders at an Annual General Meeting.

238. It further submitted that the engagement between Mumias and the plaintiff is set out in the letter of 7th May 2014 at pages 1 to 19 of the defendant's bundle of documents. At page 12, the letter is signed by Coutts Otolo who was then acting Chief Executive Officer of Mumias.

239. The Defendant submitted that the introductory paragraph of the letter of 7th May 2014 refers to "a meeting with me Board Appointed Committee on 17th April 2014 this is a confirmation that the defendant was appointed through an ad hoc committee which agrees with the evidence of DW 1.

240. It submitted that the plaintiff had not produced evidence in court to disprove the defendant's appointment through the letter of 7th May 2014. In the absence of contrary evidence, the defendant submits that it was properly appointed to carry out an investigation into the affair of Mumias. The Board of MSC properly exercised its mandate in appointing MSC for this specific assignment and that it t cannot be the plaintiff's suggestion that every Board decision must be passed by the shareholders at an AGM.

241. The defendant reiterated its submissions that the portions of the Draft Report that the plaintiff has complained about is part of a section directed solely at the internal procedures of Mumias and the roles MSC's employees played, which the plaintiff would have no knowledge of. Then is no criticism of the plaintiff or allegations that the plaintiff lacks integrity or was not qualified to provide legal services to Mumias.

242. In Halsbury's Laws of England, 5th Edition, volume 32, defines a defamatory statement to mean;“A statement which tends to lower a person in the estimation of right-thinking members of society generally or to cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule, or to disparage him in his office, profession, calling, trade or business"

243. It submitted that by its definition, the question as to whether one has been defamed by a publication must be considered with reference to third persons.

244. In Daniel Ngunia versus K.G.G.C.U Limited [2000] eKLR the Court of Appeal held that;“Leaving aside any question of privilege upon which the learned judge dismissed that aspect of the appellant's claim, 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.’’

245. In Heziekiel Oira v Standard Limited & another [2016] eKLR Aburili J, held that;“It emerges that the publication to a plaintiff alone is not enough, because defamation is an injury to one's reputation and reputation is what other people think of a person who alleges he was defamed and not his own opinion of himself. In order for the plaintiff to prove that he was defamed, he must tender evidence to prove that the published words tended to cause other people to shun or avoid or treat him/her with contempt following the defamation right thinking members of the society generally who know and esteem the plaintiff as a reputable person must be called to testify and satisfy the court that indeed the publication by the defendants tended to make the plaintiff to be shunned, ridiculed or avoided or viewed differently. The plaintiff could also produce evidence by way of emails or messages send to him by the readers who read the impugned publication and viewed him differently.’’

246. In James Njagi Joel v Junius Nyaga Joel [2020] eKLR, Muchemi J held that;“The elements of the tort of defamation are that the words must be defamatory in that they must tend to lower the plaintiff's reputation in the estimation of right-minded persons in the society or they must tend to cause the plaintiff to be shunned or avoided by other persons In other words, the words complained of must be shown to have injured the reputation, character or dignity of the plaintiff.’’

247. The defendant submitted that the plaintiff has not tendered evidence in court to prove that the words in bold at paragraphs 9 and 11 of the Plaint caused right thinking members of the society to shun or avoid or treat him with contempt. In the absence of such evidence, the plaintiff appears to have had an apprehension of defamation on himself based on how he himself considered his standing in society which is not what defamation is in law.

248. On quantum, the defendant submitted that the principles that should guide the court in awarding damages in defamation cases are settled and sought to rely on the case of : Nation Newspapers Limited v Gilbert Gibendi [2002] eKLR where the High Court, at page 3 of the judgment, held that;“Regarding the damages awarded, there must be some foundation or basis upon which the trial court will award a particular sum. The plaintiff must lead evidence of such actual damage to his reputation and character as will enable the trial court to assess an appropriate award. Posing only the defamation per se is not sufficient to merit a substantial award of damages. Such a plaintiff would probably get only nominal damages.”

249. It submitted that Plaintiff did not call any witness to give evidence on the alleged damage to the plaintiff's reputation. The publication complained of was in 2014. It is a matter of public knowledge that the plaintiff sat as a Commissioner in the Judicial Service Commission between 2014 to 2019 and is the current Senator for Kisumu County and that the right thinking members of society certainly thought well enough of the Plaintiff to elect him to office!

250. It further submitted that the in his written submissions, the plaintiff has claimed Kshs. 10,000,000/- as general damages and Kshs. 15,000,000. 00 as aggravated damages for the alleged defamation and that there is no evidence to support this claim by the plaintiff and the plaintiff has not produced any decisions with comparative circumstances to the present case where the plaintiffs were awarded sums comparable to the amount being claimed by the plaintiff. There is no basis for the colossal sum claimed by the plaintiff as general damages.

251. In Gatley on Libel and Slander 13th Edition at paragraph 10-016, the authors state that;“In assessing damages, the court is entitled to look at the whole conduct of the defendant from the time the libel was published down to the time they give their verdict". The general conduct of the defendant, his conduct of the case, and his state of the mind (or how it is perceived by the claimant), insofar as it affects the feelings of the claimant are all matters which the claimant may rely on as aggravating the damages in so far as they bear on the injury to him. The conduct of a defendant which may often be regarded as aggravating the injury to the plaintiff's feelings, so as to support a claim for 'aggravated' damages includes a failure to make any or sufficient apology and withdrawal, a repetition of the libel conduct calculated to deter the claimant from proceeding, the general conduct either of the preliminaries and persecution of the plaintiff by other means.’’

252. In Aaron Ringera v Standard Limited [2018] eKLR, Sergon J in assessing the aggravated damages payable to the plaintiff held that;“It is apparent from the evidence that the defendant was served with an order of injunction on 17. 6.2009 with a penal notice. The defendant went ahead to publish the second publication despite having been served with the court order”.

253. The court found that it was also evident that the defendant went ahead and posted the same defamatory information concerning the plaintiff on the internet or its website.

254. In circumstances, the court was convinced that the plaintiff was entitled to an award of damages for exemplary and or aggravated damages and he was awarded Ksh.3,000,000/=.

255. It submitted that the plaintiff has not adduced evidence of actual damage to his reputation which would enable this court to assess whether in fact such damage occurred and if so, what an appropriate award would be.

256. It further submitted that without prejudice to this, if any award is to issue, the defendant submits that an award of not more than Kshs. 500,000/- would be sufficient.

257. The defendant submitted it has demonstrated that the statements in bold at paragraphs 9 and 11 of the plaint, is part of a section directed solely at the internal procedures of Mumias and the roles played by the various officials of Mumias, which the plaintiff would have no knowledge. Further, the plaintiff did not call evidence to show that the publication of the Draft Report caused right thinking members of the society to shun or avoid or treat him with contempt.

258. The defendant further submitted that in the absence of such evidence the defendant submits that the plaintiff is not entitled to any damages for defamation from the defendant.

259. It submitted that it has also demonstrated that the publication of the Draft Report to the Draft Report to Agriculture, Fisheries and food Authority on 6th November 2014 and to the Parliamentary Committee on Agriculture on 18th December 2014 is covered by qualified privilege.

260. It further submitted that it has shown that the statements were accurate, were not driven by malice and more fundamentally were not intended to nor did they reflect in any manner upon the plaintiff.

261. The defendant prays that the plaintiff's claim against the defendant be dismissed with costs.

262. It is the duty of the plaintiff to prove his case to the required standard in civil cases which is on a balance of probabilities.

The Determination 263. The issues for determination in this case are as follows;i.Whether the plaintiff proved his case to the required standard in civil cases.ii.Whether the defendant has a valid defence against the plaintiff.iii.Whether the plaintiff is entitled to the remedies he is seeking against the defendant.iv.Who pays the costs of this suit?

264. On the issue as to whether the plaintiff has proved that the defendant committed the tort of defamation against him, the plaintiff must prove that the impugned forensic draft report is defamatory, it referred to him and that it was published by the defendant.

265. In the case of Jacob Mwanto Wangora v Hezron Mwando Kirorio [2017] eKLR, the court held as follows;“In Kenya our jurisprudence is underpinned in the common law tort of defamation where the plaintiff must establish the following elements:(1)That the defendant made a defamatory statement to a third person.(2)That the statement was false.(3)That the defendant was legally at fault in making the statement; and(4)That the plaintiff suffered harm.”

266. The defendant did not deny that they did the forensic investigation at MSC upon instructions by the board of management of MSC.

267. The Defendant said that the primary objectives of their investigations were to review transactions under three areas, Importation of sugar, procurement and commercial. Under Procurement, the areas under review were inter alia to ascertain whether appropriate procurement and disposal procedures were followed in making decisions for all transactions above Kshs. 5 million, establish the roles played by individuals at Mumias and other external entities involved and review internal audit reports on matters regarding the procurement function.

268. The plaintiff challenged the appointment of the Defendant but he did not produced evidence in court to disprove the defendant's appointment through the letter of 7th May 2014.

269. In the absence of contrary evidence, I find that the defendant was properly appointed to carry out an investigation into the affair of Mumias. The Board of MSC properly exercised its mandate in appointing MSC for this specific assignment and it cannot be the plaintiff's suggestion that every Board decision must be passed by the shareholders at an AGM.

270. I find that the scope of work that was to be done by the defendant in investigating matters on procurement was limited to all transactions above Kshs.5 million. The plaintiff's firm having been paid Kshs 7,000,000. 00 as fees for legal services was within the transactions under scrutiny by the defendant.

271. The plaintiff argued that the Defendant did not take into consideration that in the provision of legal services, the normal tendering processes are not adhered to as this would amount to touting or canvassing in contravention of the Advocates Act CAP 16 which prohibits the same. Consequently, the same advocates are put on record in matters that they are shown to have expertise in and not merely as a result of a bidding process. More importantly is the fact that once a law firm is listed among the prequalified list, then all that is considered is the expertise of the particular advocate that is chosen to handle that matter;

272. However, the obligation of the defendant was to point out any departure in the existing standard procedures and policies of MSC, and to seek an explanation from the persons responsible for the processes and the plaintiff was not one such persons.

273. I find that the defendant was not under an obligation to contact suppliers or other external parties and the source of his information was staff and management of MSC.

274. The defendant maintained that at the time of its report, there was no list of prequalified lawyers and that this was communicated by MSC's procurement manager and the same was correctly captured in the report.

275. The defendant’s evidence was that the 2013-2015 Goods and Services Suppliers Pre-qualification Report relied on by the plaintiff was merely a recommendation by the evaluation team to the Mumias Tender Committee (MTC) of Mumias which was the only body authorised to take decisions on pre-qualification.

276. The plaintiff did not produce evidence to counter the assertion that the 2013-2015 Goods and Services Suppliers Pre-qualification Report was not an approved panel of pre-qualified advocates.

277. There is therefore evidence that the plaintiff was not pre-qualified at the time the instructions in question were issued to his firm.

278. The plaintiff relied on the decision of Lady Justice K. H. Rawal in the case of Thiong'o Njiri & 81 Others versus the Municipal Council of Kiambu & Another, Nairobi HCCC No. 499 of 2010 [2011] eKLR, where in the Learned Judge expressed herself as follows:“In my considered view, the inclusion of service of on advocate to be procured by advertising and the procurement process could and does involve the breach of the provisions of the Advocates' Act, the Advocates' Remuneration Order as well as the Advocates (Practice) rules. I do wonder how an Advocate could bid to tender for legal service simpliciter. How an Advocate could place the economic provision for legal services in the tender without the claim, value or nature of claim being specified. The legal charges shall vary according to each and every case which the local authorities might file or defend. Inviting bid for legal services per se could contravene the spirit and purport of the Advocates Act which is a specific Act and prior in time. If the local authority needs the services for a specified case, the insistence of undergoing procurement process shall be self defeating due to the court procedure."

279. However, in the current case, there is no evidence that the plaintiff was pre-qualified at the time the instructions in question were issued to his firm.

280. The defendant did not need to interview the plaintiff since defendant was not obliged to interview suppliers over internal processes of MSC.

281. There is evidence that the contents of the Draft Report were submitted to MSC for its sole use and the same was published to MSC on 8th July 2014.

282. On 6th November 2014, it published the Draft Report to the Agriculture, Fisheries and Food Authority and on 18 December 2014 the defendant published the draft report to the National Assembly, all on occasions of qualified privilege.

283. Its submitted that by a letter dated 9th December, 2014 the Clerk of the National Assembly made reference to the appearance by the acting Managing Director of MSC before the House’s Committee on Agriculture, Livestock and Corporations and to the request by the Committee for MSC to submit the KPMG report and further asked MSC to comply with the request to submit the report.

284. The defendant also said that newspaper publications did not refer to the forensic report but referred to cases filed by Evans Kidero against the defendant.

285. The defendant’s engagement with MSC was on the processes of appointing suppliers. The source of the information was MSC staff and the defendant had an obligation to report the same.

286. I also find that the newspaper report did not refer to the forensic report but to cases filed by Evans Kidero.

287. I also find that the defendant gave a copy of the report to parliament and to the Ministry of Agriculture, Fisheries and Road Authority at the request of MSC.

288. The plaintiff did not sue MSC which gave the defendant the information captured in the impugned report and neither did he prove that the copies given to parliament and the Ministry of Agriculture, Fisheries and Food Authority were not given on occasion of qualified privilege.

289. The plaintiff did not counter the evidence that there was a reciprocity of interest in the publication of the Draft Report to Agriculture, Fisheries and Food Authority on 6th November 2014 and to the Parliamentary Committee on Agriculture on 18th December 2014 by the defendant and that the publication was covered by qualified privilege.

290. In Hulsbury’s Law of England 4th Edition Vol. 28 at Paragraph 109 the rationale for the defence of qualified privilege is explained as follows.“On grounds of Public policy the law affords Protection on certain occasions to a person acting in good faith and without any improper motive who makes a statement about another person even when that statement is in-fact untrue and defamatory. Such occasions are called occasions of qualified privilege. The principal categories of qualified privilege are;1. Limited communication between persons having a common and corresponding duty or interest to make and receive the communication.2. Communication to the public at large or to a Section of the Public made pursuant to a legal, social or moral duty to do so in reply to a public attack.3. Fair and accurate reports published generally or proceedings of specified persons or bodies.

291. I find that in the circumstances of this case, the defence of qualified privilege is available in respect of the reports submitted to parliament and the Ministry of Agriculture, Fisheries and Food Authority at the request of MSC.

292. The Defendant’s evidence was that with respect to the publication of the Draft Report to the Agriculture, Fisheries and Food Authority, MSC was under a duty to report the findings of the investigations carried out by the defendant into the affairs of Mumias. The Agriculture, Fisheries and Food Authority had a legitimate interest in receiving the Draft Report and the delivery of the Draft Report to the Agriculture, Fisheries and Food Authority by the defendant on the instructions of MSC was pursuant to the duty owed by MSC.

293. The Defendant further submitted that with respect to the publication of the Draft Report to the Clerk of the National Assembly on behalf of MSC, the defendant submitted that the Government of Kenya through the Treasury owns 20% of shares in MSC. By virtue of the shareholding of the Treasury in MSC, it was under a duty to report the findings of the investigations carried out by the defendant into the affairs of MSC to the National Assembly in answer to the requests made by the National Assembly pursuant to Article 125 of the Constitution. The delivery of the Draft Report to the National Assembly by the defendant on the instructions issued by MSC was pursuant to the duty owed by MSC.

294. I find that the plaintiff has not proved that the defendant committed the tort of defamation against him.

295. I find that the defendant was not under an obligation to contact the plaintiff for verification of the investigations.

296. I also find that the staff of MSC were the source of the information which the defendant captured in the draft forensic report.

297. I find that the defendant has a valid defence of qualified privilege in respect of the draft reports released to Parliament and to the Ministry of Agriculture, Fisheries and Food Authority.

298. On the issue as to whether the defendant is liable to pay the plaintiff the remedies he is seeking, I find that the answer is “NO”.

299. The reason being that the plaintiff has failed to prove his case to the required standard in civil cases.

300. I dismiss the plaintiff’s case at this stage for want of evidence that he was defamed by the defendants in the draft forensic report.

301. On the issue as to who pays the costs of this suit, I direct that each party bears its own costs of the suit for reasons that the plaintiff ought to have sued MSC for the findings f indeed he was prequalified to tender legal services.

302. Had the plaintiff proved his case he would have been awarded general damages of kshs. 10 million.

303. However, the plaintiff did not prove his case to the required standard and his case is accordingly dismissed with no orders as to costs.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 19TH DAY OF SEPTEMBER, 2024. ………….…………….A. N. ONGERIJUDGEIn the presence of:……………………………. for the Plaintiff……………………………… for the Defendant