[2018] KECA 421 (KLR)

IN THE COURT OF APPEAL

AT NAIROBI

(CORAM: OUKO (P), WARSAME & OTIENO-ODEK, JJA)

CIVIL APPEAL No. 136 of 2012

BETWEEN

ROYAL MEDIA SERVICES LIMITED.....................1stAPPELLANT

RAMOGI FM...............................................................2ndAPPELLANT

AND

HON. JAKOYO MIDIWO.............................................RESPONDENT

(Appeal from the Judgment and Decree of the High Court of Kenya at Nairobi (J.B. Ojwang, J dated 16thJune 2010

in

Nairobi HCCC No. 1328 of 2003)

********************

JUDGMENT OF THE COURT

1. By a Plaint dated 16th December 2003, the Respondent, (Hon. Jakoyo Midiwo) filed suit for defamation against the appellants (Royal Media Service and Ramogi FM). At all material times, the Respondent was the Member of Parliament for Gem Constituency.

2. The particulars of the alleged defamation were that on the 15th day of December 2003, the appellants caused to be aired, broadcast and published as the main and leading item during the 7. 00 am morning radio news the following words in Luo language defamatory of the Respondent herein:

“…Jotelo mayande ne obila oyudo kachoko ochodoroche Koinange Street waseyudo…… Ramogi nyo odwaro mo oyudo in

to ngawa gini mawachore ni ne oyud rando gi obila ka okawo ochoderoche maloko dendgi e Koinange Street….to jabura

maduoug mawadendo ni M.P. en Jakoyo Midiwo ma jaod Orindi ma dwond bura ma Gem Jakoyo Midiwo….nyocha bende watemo

dwaro Jakoyo Midiwo mondo okwer kata oyie to njok ok wayude…en wach ma omako wang dhano kabisa….”

The English version of the said words are:

“…the leaders whom the police found while collecting prostitutes on Koinange Street have now been identified…. Ramogi Radio searched, investigated and found out whom it was being said were caught red-handed while collecting the prostitutes who sell their bodies on Koinange Street…. the other leader is Jakoyo Midiwowho is called the voice of the people and the Member of Parliament for Gem Constituency…We tried unsuccessfully to trace Jakoyo Midiwo to either admit or deny but couldn’t find him….”

3. The Respondent in his plaint averred that the natural and ordinary meaning of the said words were meant and were actually understood to mean that the Respondent:

(a) Is a philanderer who engages in questionable nocturnal activities.

(b) Though a married man, is guilty of adultery.

(c) Is of loose morals as to engage in solicitation of sex from prostitutes.

(d) Is guilty of aiding and abetting commission of criminal offences punishable under the penal code by imprisonment for which he should be punished.

(e) Is guilty of professional misconduct in which case he is unfit to hold the public position he holds as Member of Parliament in the society.

(f) Is not a proper person to be elected a Member of Parliament.

(g) Is not a fit and proper person to continue to serve as a Member of Parliament.

(h) Contributes immensely to the promotion of sex trade.

(i) Engages in immoral activities, which promotes the spread of HIV AIDS which has been declared a national disaster.

(j) Is not a role model for all the people at national and constituency levels.

4. In his Plaint, the Respondent sought general, exemplary and aggravated damages for defamation. He also sought a permanent injunction restraining the Appellants from publishing, airing, broadcasting and/or referring to the Respondent in any manner whatsoever in any news item, commentary or programmes aired by them through radio station concerning the alleged involvement of Cabinet Ministers and Members of Parliament with prostitutes along Koinange Street and/or anywhere.

5. The Appellants in their defence and counterclaim denied the particulars of defamation as pleaded and denied defaming the Respondent. The Appellants pleaded the defence of truth and justification and in the alternative relied on the ruling in New York Times -v- Sullivan376 US 254(1964). The Appellants contented that by virtue of the Respondent’s status as a Member of Parliament, he had, within the meaning of Section 79 of the then Kenya Constitution as a public figure consented to a robust debate and discussion of his personal life during the period he served as a Member of Parliament.

6. The Appellants in their counter-claim contended that they had suffered loss and damage as the Respondent alleged that they carry on illegal business to publish falsehood about Luo Nyanza MPs, that they are not an independent broadcasting station and they do not carry out their business in a business-like manner. For these reasons, the Appellants sought general damages and costs for the counter-claim.

7. Upon hearing the parties in the High Court, Ojwang, J. (as he then was) entered judgment in favour of the Respondent for defamation and issued the following decree:

(a) THAT a permanent injunction be and is hereby granted restraining the defendants from publishing, airing, broadcasting and/or referring to the plaintiff, in any manner whatsoever, in any news item, commentary and/or programme aired by the defendants through television and radio stations concerning the plaintiff’s alleged involvement with prostitutes along Koinange Street and/or anywhere else.

(b) THAT the defendant shall pay compensatory damages to the plaintiff in the sum of Kenya Shillings Five Million (Ksh.5,000,000/=).

(c) THAT the defendant shall pay aggravated damages to the plaintiff in the sum of Ksh. Two Million (Ksh.2,000,000/=).

(d) THAT the defendant shall pay to the plaintiff the sum of Ksh. Three Hundred Thousand (Ksh.300,000/=) for failure to make an apology after publishing matter defamatory of the plaintiff.

(e) THAT the defendant’s counter-claim be and is hereby dismissed with costs to the Plaintiff.

(f) THAT the defendant shall bear the plaintiff’s costs in this suit and the same shall bear interest at court rates as from the date of filing suit until payment in full.”

8. Aggrieved by the judgment and orders of the High Court, the Appellants lodged the instant appeal. The abridged grounds of appeal as stated in the Memorandum are as follows:

“i. The learned judge erred in failing to consider the defence of constitutional privilege raised by the defendants as enshrined in Section 79 of the then Kenyan Constitution and embodied in the decision in New York Times -v- Sullivan 376 US 254(1964).

ii. The learned judge failed to consider that in view of the constitutional privilege raised by the defendants, even if a person is defamed, no liability arises when the matter is of public interest and defamation is not a tort of strict liability.

iii. The learned judge ignored the fact that the defendants had made the broadcast as a matter of public interest namely against a public figure, the Plaintiff, as a Member of Parliament.

iv. The learned judge ignored the fact that at the time of the broadcast complained of, the Government was involved in projects to uphold the integrity of its leaders.

v. The learned judge erred in awarding as compensatory damages the amount of Ksh. 5,000,000/=.

vi. The learned judge erred in ordering interest on costs from the date of filing suit without giving reasons.

vii. The learned judge erred in issuing a blanket permanent injunction against the defendants.

viii. The judge erred in awarding both aggravated damages and damages for failure to make an apology.

ix. The award of Ksh. 7,300,000/= as damages is manifestly too high in the circumstances of this case.”

9. At the hearing of the instant appeal, counsel on record for the Appellants was the firm of Kamau Kuria & Co. Advocates. The firm of Onsando Ogonji & Tiego Advocates appeared for the Respondent. Both parties filed written submissions. On the date for hearing, counsel for the appellant did not appear and learned counsel Messrs T.T. Tiego appeared for the Respondent. He relied entirely on the written submissions filed on record and he had nothing else to add. This Court being satisfied that the Appellant had been served with the hearing notice gave a judgment date for the appeal.

10. We have read the written submissions by learned counsel for both sides, examined the record of appeal and considered the authorities cited. As this is a first appeal, it is our duty to analyze and re-assess the evidence on record and reach our own conclusions in the matter. It was put more appropriately in Selle -vs- Associated Motor Boat Co. [1968] EA 123, thus:

“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif -v- Ali Mohamed Sholan (1955), 22 E. A. C. A. 270).”

11. There are three fundamental issues for determination in this appeal. The first is the issue of liability - did the trial court err in finding that the Appellants were liable to the Respondent in defamation? The second is the issue of quantum - did the trial court err in awarding the quantum of damages as specified in the order? The third is whether the trial court erred in awarding interest on costs from the date of filing suit?

12. In arriving at the determination that the appellants were liable for defamation, the trial court expressed itself as follows:

“The defendant started off with a defence and counterclaim and indicated that it would rely on the defence of truth and justification. The evidence has shown that such a defence would not have succeeded and the defendant has wisely abandoned that line of defence. …

So the defendant is now left with but one defence, namely public interest as a justifying circumstances to the publication complained of…. The defendant has not contended that it was, by publishing the matter complained of, acting under urgency to communicate a warning to the public; the evidence shows that the defendant’s information was not so reliable, there was nothing new on the national scene placing the defendant in such great urgency to publish the material almost immediately…. Itdoes not become clear that the defendant had taken the care to check the accuracy of the information it was publishing…. Theevidence shows that little care was taken to establish the accuracy and this weakens the defendant’s claim to have practiced responsible journalism, so that it might be excused, in full or in part, from the inaccuracy which resulted in the disparaging broadcast on the plaintiff. In these circumstances, the published matter was not rightly aimed at the public persona of the plaintiff, so he could be met with the defence that he had, by offering himself to be elected a parliamentarian, consented to disparaging publications relating to his character and reputation. The disparaging publication ended up hurting the plaintiff both in his public and private persona, and he is right to contend that he was defamed by the defendant, through its publications…. This is a scenario in which it must be heldthat the plaintiff has established his case on a balance of probabilities and hence the award of damages is to be considered.”

13. The Supreme Court in Gatirau Peter Munya -v- Dickson Mwenda Kithinji,Supreme Court Petition Non 2B of 2014 at paragraph 93expressed that

“much as an appellate court is free to navigate the evidential landscape on appeal, it must, in a distinct measure, show deference to the trial Judge: regarding issues such as the credibility of witnesses and the probative value of evidence. The appellate court must also maintain fidelity to the trial record. The evaluation of the evidence on record is only to enable an appellate court to determine whether the conclusions of the trial judge were supported by such evidence, or whether such conclusions were so perverse, that no reasonable tribunal would have arrived at the same.”

14. For defamation to succeed, the statement must be published of and concerning the claimant. In Knupffer -v- London Express Newspaper Limited (1944) AC 116; [1944] 1 All ER 495it was held that words are not actionable as defamatory unless they are published of and concern the plaintiff. InNewstead-v- London Express Newspaper Limited (1940) 1 KB 377, [1939] 4 All ER 319it was held that where the plaintiff is referred to by name or otherwise clearly identified, the words are actionable even if they were intended to refer to some other persons. In the instant case, the Respondent Hon. Jakoyo Midiwo, was expressly referred to by name in the publication complained of.

15. The Appellants published and broadcasted the publication complained of and identified the appellant by name. The truth of the contents of the publication was denied. The Appellants having abandoned the defence of truth and justification, the publication complained of is actionable. The legal issue is whether there is a tenable defence available to the Appellants. Before the trial court, it emerged that the Appellants remaining defence was constitutional privilege, public interest and the rule in New York Times -v- Sullivan 376US 254(1964).

16. The case of New York Times (supra) establishes the principle that a publisher is not liable for publishing pertinent facts on a public figure. No damages are awardable to a public official for defamatory falsehood relating to his official conduct unless he proves "actual malice", that the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false. The rule in New York Times (supra) does not protect inaccurate and non-factual publication of disparaging matter that is made recklessly in disregard of the truth.

17. In the instant case the trial court made a finding that the publication aired by the Appellants on 15th December, 2003 was inaccurate, non-factual and reckless. The Respondent tendered evidence to prove that the Appellants never carried out any investigations before airing or broadcasting the impugned publication. DW2, Herman Igambi, who was the Editorial Director of the Appellant Company, testified that he could not confirm that the Respondent was caught red-handed by the police along Koinange Street. He testified that he could not authenticate the story in its entirety; that inability to get information made it impossible for the Appellant to confirm truthfully that the Respondent was on Koinange Street on the material night and time. This testimony per se is proof of lack of attention on the part of the Appellant who cared less whether what was aired was accurate or otherwise.

18. On the defence of public interest, DW2 testified that the reported incident was viewed as a scandal as it involved a national leader. In our considered view, being in public office or for that matter a Member of Parliament, does not mean consent to defamation. One of the hallmarks of journalism is publishing accurate information. In the instant case, the record shows that what was published was a non-factual and erroneous information. There can never be public interest to air or broadcast incorrect or defamatory information. A caveat should be given that true and accurate information is not defamatory.

19. In Godwin Wanjuki Wachira -v- Okoth [1977] KLR 24, the High Court had this to say:

“I may go further and hold that failure to check records to ascertain the true position may very well be negligence on their part… the defendants must be deemed to have acted recklessly in publishing the distorted story… I hold that the author published the defamatory statement complained of… with reckless indifference as to whether it was just or unjust.”

20. It is clear from the record that the Respondent satisfied the trial Court that the impugned publication by the Appellants was not only reckless and negligent but also malicious. The Appellants did not adduce any evidence to prove any truth in the contents of the publication. We are satisfied upon a balance of probabilities that the offending publication was defamatory of the Respondent and we so hold. In the present case, since the published defamatory information was inaccurate, it perforce means that the Appellant is liable for defamation. We find that the trial court did not err in finding the Appellants liable for defaming the Respondent.

21. As to whether the reputation of the Respondent was injured, the evidence on Record shows that the impugned defamatory statement worked members of the public into a frenzy of outrage and condemnation of the Respondent. The publication was aired and broadcast in a local language widely spoken in Nyanza and the Respondent was a Member of Parliament for Gem Constituency in Nyanza. The evidence shows that the Respondent’s electorate is essentially made up of speakers of the Luo language in which the broadcast was made. In our considered view, the false and inaccurate publication injured and damaged the Respondent’s reputation in the eyes of right thinking members of society.

22. The next issue for our consideration is quantum of damages. The trial court awarded general damages of Ksh. 5,000,000/=; aggravated damages of Ksh. 2,000,000/= and Ksh. 300,000/= as damages for failure to apologize. The total sum awarded was Ksh. 7,300,000/=.

23. In the case of Kenya Bus Services Limited -vs- Jane Karambu Gituma Civil Appeal Case No. 241 of 2000,this Court stated as follows: -

“In this regard, both the East African Court of Appeal (the predecessor of this Court) and this Court itself have consistently maintained that an appellate court will not interfere with the quantum of damages awarded by a trial court unless it is satisfied either that the trial court acted on a wrong principle of law (as by taking into account some irrelevant factor or leaving out of account some relevant one or adopting the wrong approach), or it has misapprehended the facts, or for those or any other reasons the award was so inordinately high or low as to represent a wholly erroneous estimate of the damages. (See, for example, Kassam -v- Kampala Aerated Water Co. Ltd [1965] E. A 587; Idi Shabani -v- Nairobi City Council [1982-88] I K.A.R. 681; Butt -v- Khan [1981] K.L.R. 349 and Kimotho & Others -v- Vesters & Another [1988] K.L.R.48).”

24. We are cognizant that award of damages in whatever form is discretionary and the trial judge reigns supreme. In determining the appropriate quantum, we are alive and appreciate that we are not substituting our discretion to that of the trial judge, unless the trial judge addressed his mind to extraneous matters and the award was unreasonable or excessive or that the judge did not consider or take into consideration relevant or pertinent mattes. Being alive to the principles that allow us to interfere with the discretion of the trial judge, we now proceed to deal with the issue of quantum awarded to the respondent.

25. In the instant case, the Appellants have urged us to find that the total quantum of damages of Ksh. 7,300,000/= awarded to the Respondent was too high and we should reduce the same. In Hon. Henry Obwocha -v-Headlink Publishing Ltd (2014) (HCK), Ougo, J. relying onManson v. Associated Newspaper Ltd, [1965] 2 All E.R. 954, ruled that, the plaintiff is entitled to exemplary damages for recklessness whether the words published are tortuous or not.

26. In arriving at our determination on quantum, we note the quantum of award for defamation made by this Court in the case of Ken Odondi & 3 Others - v- James Okoth Omburah t/a Okoth Ombura & Co. Advocates, Kisumu Civil Appeal No. 84 of 2009where a sum of Kshs. 4,000,000/= was awarded as general damages for libel and Kshs.500, 000/= awarded for aggravated damages. In Mwangi Kiunjuri -v- Wangethi Mwangi & 2 others [2016] eKLR,this Court affirmed the award of general damages for defamation of Ksh. 4,000,000/= and aggravated damages of Ksh. 1,000,000/= plus costs of the suit. In Eric Gor Sungu -vs-George Oraro Odinga [2014] eKLRa defamation award was Kshs. 3 million at the High Court which was later on enhanced on appeal to Ksh. 5 million.

27. Having considered the above comparable awards made for defamation, we are satisfied that the total award of Ksh. 7,300,000/= is on the higher side. We set aside this sum taking into account the nature of the injury inflicted, the scope, weight and implications of the defamatory words and public interest that awards must not be exorbitant, excessive and unreasonable and that general damages are not punishment but a modicum of compensation. We note that the trial judge awarded Kshs.300,000 as damages for failing to apoligise. In our considered view, damages for failing to apololigise is part of aggravated damages and cannot be a stand-alone award.

28. Accordingly, we interfere with the award and reduce the general damages to Ksh. 4,000,000/=; aggravated damages is reduced to Ksh. 1,000,000/= and we set aside the award of Ksh. 300,000/= being damages for failure to apologise.

29. This appeal partially succeeds on the issue of quantum of damages and fails on the issue of liability. To this extent, we uphold and partially confirm the judgment of the trial court dated 16th June 2010.

30. On the issue of interest, the trial court ordered that the Appellant shall bear the costs of the suit and the same shall bear interest at court rate from the date of filing suit, until payment in full. The appellant contend that the trial court erred in awarding interest on costs from the date of filing suit.

31. In Paul Muli & Stella Kanini Mutisya t/a Stepal Dressmaking and Design -v- Nation Media Group Limited [2017] eKLR,it was ordered that there will be interest on the damages awarded for defamation at court rates from the date of judgment until payment in full. In Samuel Philip Kidoti -v- Kenya Cargo Handling Services Ltd. CA No. 76 of 1992, the Court of Appeal was clear that:

“General damages bear interest from the date of judgment while special damages bear interest from the date of filing of the suit.”

32. In Dipak Emporium -vs- Bond's Clothing Civil Appeal No. 64 of 1972 [1973] EA 553it was held that where damages have to be assessed by the court, the right to those damages does not arise until they are assessed and therefore interest is only given from the date of judgment.

33. Guided and persuaded by the foregoing decisions, we are of the view that the trial court erred in awarding interest on costs from the date of filing suit. We hold that interest on all the damages awarded in this appeal shall be from the date of judgment delivered by the High Court, that is, from 16th June 2010. Noting that the costs of the suit is yet to be determined, we hold that interest on costs at the High Court shall be from the date of the judgment delivered by the High Court.

34. The final Orders of this Court are as follows:

(1) The judgment of the High Court dated 16thJune 2010 be and is hereby partially upheld and varied as follows:

a) The general and aggravated damages awarded to the Respondent against the Appellant by the High Court be and is hereby set aside and in its place the following damages be and is hereby awarded:

i. General damages are awarded to the Respondent against the Appellants in the sum of Ksh. 4,000,000/=.

ii. Aggravated damages are awarded to the Respondent against the Appellant s in the sum of Ksh. 1,000,000/=.

(2) The Appellant to bear costs of the suit before the High Court.

(3) Interest on costs of the suit at the High Court to be at court rates with effect from the date of judgment in the High Court, namely 16thJune 2010.

(4) The appeal having partially succeeded, each party to bear his/its costs in appeal.

Dated and delivered at Nairobi this 27thday of July, 2018

W. OUKO (P)

……….…….………..

JUDGE OF APPEAL

M. WARSAME

………..……………..

JUDGE OF APPEAL

J. OTIENO-ODEK

……………………….

JUDGE OF APPEAL

I certify that this is a

true copy of the original.

DEPUTY REGISTRAR