[2020] KEHC 4326 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

CIVIL APPEAL NUMBER 142 OF 2019

RADIO AFRICA LIMITED t/a THE STAR NEWSPAPER.....APPELLANT

VERSUS

MOSES BIFWOLI MAKARI KIMUNGUI..............................RESPONDENT

(An appeal arising from the judgment of Honourable. S. Wewa (SPM) in Eldoret CMCC NO.38 of 2019 delivered on 24/09/2019)

JUDGMENT

The appellant filed this appeal being dissatisfied with the judgment of the trial court in CMCC no. 28 of 2019 where the respondent was awarded kshs. 7. 8 Million being various forms of damages for defamation.

The appellant filed submissions on 11th December 2019. It cited the case of Selina Patani & Another v Dhranji V. Patani (2019) EKLR and the case of Daniel N. Ngunia v K.G.G.C.U Limited (2000) EKLR. It submitted that only the plaintiff testified and despite having three witnesses never called any of them. This showed he had the opportunity to do so but did not exploit it. The legal consequence of the plaintiff not calling any third party evidence is that he did not prove his claim. His claim should be dismissed on that account.

The appellant cited the case if Caltex Oil (Kenya) Limited v Rono Limited (2016) EKLR and submitted that the plaintiff only prayed for general damages and costs of the suit but the trial court separately awarded aggravated damages of kshs. 800,000/- and exemplary damages of kshs. 1,000,000/- without specific prayers for those reliefs.

The trial court’s award of kshs. 6,000,000/- was excessive considering the respondent’s status. It cited the case of Nation Newspapers Limited v Peter Baraza Rabando (2016) EKLR and submitted that the respondent did not tender any evidence to demonstrate that he was known beyond his immediate family, residential and work environment.

In the circumstances the award of kshs. 6,000,000/- was excessively high. In the Nation Newspapers Limited v Peter Baraza Rabando (supra) the court awarded kshs. 2,000,000/- and the court of appeal reduced that amount to kshs. 1, 200,000/-.

The respondent filed submissions on 17th December 2019.

He cited the case of Karuru Munyoro v Joseph Ndumia Murage & Another HCC No. 95 of 1998 where the court discussed the effect of the failure to rebut evidence. He also cited the supreme court case of Petition No. 7 of 2018 – Hon. Mohamed Abdi Mahamud v Ahmed Abdulahi Mohamed (2019) eKLR.

He submitted that it is not necessary to call a third party witness other than the plaintiff to express what he thinks of publication in situation and cases where the publication is a newspaper enjoying national circulation.

He relied on the case of Nation Media Group Ltd & 2 others v Joseph Kamotho & 3 others Nairobi CA 284 of 2005on the elements of circulation. He submitted that the cited case law showed that a claimant need not call a third party where the publication involves a newspaper that enjoys national circulation.

The decisions cited by the appellant are distinguishable from the current case as the decisions cited related to letters that were addressed to the claimant and no one else read the letters but the present case relates to an impugned article contained in a newspaper with national circulation.

The respondent cited the case of Nairobi HCCC No. 87 of 2016 – Nelson Havi v Headlink Publishers Ltd (2018) eKLR where the court observed that aggravated damages will be ordered against a defendant where he acts out of improper motive. In the instant case there was no apology as such the learned magistrate applied the correct principles in awarding aggravated and exemplary damages.

On the issue of failure to plead aggravated and exemplary damages he relied on the case of Abdul Hamid Ebrahim Ahmed v Municipality Council of Mombasa (2004) eKLR H.C.

The award of general damages of kshs. 6,000,000/- is not excessive. The issue of whether the respondent was known beyond local limits was not raised at the trial and thus cannot be the subject of this appeal. He relied on the case of Butt v Khan (1981) KLR.

In an action of libel, the court in assessing damages is entitled to look at the whole conduct of the defendant from the time the libel was published down to the time the verdict was given. The court should consider the gravity of libel. The nature of the libel in this case involved an allegation that the

respondent had been suspended and charged with murder. He distinguished the respondents case of Nation Newspapers Limited v Peter Baraza Rabando (2016) eKLR.

The respondent submitted that the plaintiff did not have to prove all other offences that he could most likely be found to be culpable. Any reasonable member of society reading the articles could not be mistaken for construing the impugned articles to be defamatory to the plaintiff. The burden of proof was upon the defendant to show that a reasonable man would not have understood those words in a defamatory sense. It is presumed that the defendant had time for reflection before publishing those words and since they pleaded truth and justification they would avail evidence to prove the truth.

The appeal should be dismissed with costs.

ISSUES FOR DETERMINATION

a. Whether the Respondent failed to prove liability

b. Whether the court erred in awarding aggravated and exemplary damages

c. Whether the award for general damages was excessive.

WHETHER THE RESPONDENT FAILED TO PROVE LIABILITY

It is the appellant’s case that the respondent failed to prove liability as he was the only witness and thus there is no evidence from a third party that testified that as a result of the defamation the respondent’s reputation in society was damaged. However, the appellant relied on the case of Selina Patani where the source of defamation was a letter. This is distinguishable from the present case where the defamation was as a result of a newspaper publication.

In JOHN WARD – VS- STANDARD LIMITED [2006] eKLR Osiemo J. stated-

“A statement is said to be defamatory when it has a tendency to bring a person to hatred, ridicule, or contempt or which causes him to be shunned or avoided or has a tendency to injure him in his office, profession or calling. The ingredients of defamation are: -

(i) The statement must be defamatory.

(ii) The statement must refer to the plaintiff.

(iii) The statement must be published by the defendant.

(iv) The statement must be false.”

In Kenneth Okoki Dindi v Standard Limited [2015] eKLRthe court held;

In this case, the defendant admits publishing the impugned articles and even goes further to offer defences of truth, justification and public interest. Can the defendant therefore in its submissions be allowed to retort that there is no evidence of any person who read the articles and or construed them to be defamatory of the plaintiff" I do not think so.It is also not in doubt that the defendant’s newspaper the Standard wherein the publication was made enjoys national circulation and international readership through online versions and therefore such a story that was a headline covering many pages could not have escaped even non-curious readers wishing to know who the top military brass in the spot were that were involved in…

It is evident that there was no need for a witness to prove the defamatory nature of the publication or the impact of the same on the reputation of the respondent.

WHETHER THE COURT ERRED IN AWARDING AGGRAVATED AND EXEMPLARY DAMAGES

It was the appellant’s case that the respondent never pleaded aggravated and exemplary damages and thus the trial court erred in awarding the same. In ABDULHAMID EBRAHIM AHMED vs MUNICIPAL COUNCIL OF MOMBASA [2004] eKLRthe court held;

Aggravated damages are awarded in actions where the damages are at large, that is to say where the damages are not limited to the pecuniary loss that can be specifically proved. They are normally awarded in actions of defamation, intimidation, false imprisonment, malicious prosecution, trespass to land, persons or goods, conspiracy and infringement of copy right. Such damages are part of, or included in, the sum awarded as general damages and are therefore at large. As such they need not be specifically

pleaded or included in the prayer for relief.

In the premises, the trial court did not err in awarding aggravated and exemplary damages. That ground of appeal fails.

WHETHER THE AWARD FOR GENERAL DAMAGES WAS EXCESSIVE

The appellant based this ground on the status of the respondent. It submitted that the respondent did not tender any evidence to demonstrate that he was known beyond the local limits of his immediate family, residential and work environment. It cited the case of Nation Newspapers Limited v Peter Baraza Rabando (2016) EKLRwhere the court awarded kshs. 2 million. However, the defamation in that case involved an innuendo that the claimant was daring but stupid man. The court should look at the gravity of libel in the present case where the respondent was depicted as a murderer.

The test as to when an appellate court may interfere with an award of damages was stated inButt vs Khan(1977) 1 KAR 1 as follows:

“An appellate court will not disturb an award of damages unless it is inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.”

The appellant has not provided similar decisions where the amount suggested was awarded. It has not shown that the judge proceeded on the wrong principles. In Civil Appeal No. 314 of 2000 Johnson Evan Gicheru v Andrew Morton & Another [2005] e KLR 1had this to say on assessment of damages:

“In action of libel the trial court in assessing damages is entitled to look at the whole conduct of the defendant from the time libel was published down to the time the verdict is given. It may consider what his conduct has been before action, after action, and in court during the trial: PRAUD V GRAHAM24 Q.B.D.53, 55. In BROOM V CASSEL & CO [1972] A. C. 1027the House of Lords stated that in actions of defamation and in any other actions where damages for loss of reputation are involved, the principle of restitution in integrum has necessarily and even more highly subjective element. Such actions involve a money award which may put the plaintiff in apurely financial sense in a much strongerposition than he was before the wrong. Not merely can he recover the estimated sum of his past and future losses, but, in case the libel, driven underground, emerges from its lurking place at some future date, he must be able to point to a sum awarded by a jury sufficient to convince a by-stander of the baselessness of the charges.

As Windeyer J. well said in UREN V JOHN FAIRAX & SONS PTY.LTD., 117 C.L.R. 115,150: “It seems to me that, properly speaking, a man defamed does not get compensation for his reputation, that is simply because he was publicly defamed. For this reason, compensation by damages operates in two ways – as a vindication of the plaintiff to the public and as a consolation to him for a wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money.”

In the premises I find no reason to disturb the award for general damages.

The appeal fails in its entirety. Costs to the respondent.

S. M GITHINJI

JUDGE

DATED, SIGNEDand DELIVEREDatELDORETthis 5th day ofMarch, 2020

In the presence of:

Mr. Kemei holding brief for Mr. Mwangi the appellant

Mr. Korir for the respondent

Mr. Eululo – Court assistant

Mr. Korir:-

We have consented that the decretal sum deposited in a joint interest earning account be released to the respondent. I’ll supply the details of the account and the extracted order.

Mr. Kenei:-

I pray for mention next week to contact on the prayer.

Court:-

Mention at 2. 00 p.m.

SIGNED

S.M GITHINJI

JUDGE

5/3/2020