[2017] KEHC 9210 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL DIVISION

HIGH COURT CIVIL CASE NO. 401 OF 2005

SCHON NOORANI............................................PLAINTIFF

VERSUS

ESTHER J.A. ADUMA.............................1ST DEFENDANT

ATTORNEY GENERAL...........................2ND DEFENDANT

JUDGMENT

1. The Plaintiff Schon Noorani was at all material times the managing Director of Jack and Jill Supermarket Ltd. The Plaintiff through the amended plaint dated 7th February, 2007 sued the 1st Defendant, Esther J. A. Aduma, the secretary of the Advocate Complaints Commission at the material time and the 2nd Defendant, the Attorney General, as the Chief Legal advisor of the Government of Kenya. The Plaintiff’s claim is that he was defamed by the 1st Defendant who published a defamatorily letter concerning the Plaintiff following the hearing of a complaint lodged at the Advocates’ complaints Commission (hereinafter the Commission).

2. The Plaintiff prays for judgment against the Defendants jointly and severally as follows:

“a) Written apology.

b) Compensation for breach of the Plaintiff’s fundamental rights under Section 84 of the Constitution.

c) Compensatory damages for libel and defamation.

d) Exemplary and punitive damages.

e) Costs of this suit.

f) Interest on (b),(c),(d) and (e) above.

g) Such further order, writ and/or directions considered appropriate for the purpose of enforcing or securing enforcement of the Plaintiff’s fundamental rights.”

3. The 1st Defendant denied the claim through the statement of defence dated 8th August 2005. It is stated that the letter in question was published in the course of official duty and was copied to the Solicitor General who is the 1st Defendant’s superior. That the letter was copied to the Plaintiff’s advocates as per the Plaintiff’s instructions. That the Advocates who were the subject of the complaint before the Commission had a right to be kept informed of the developments in the matter. Publication to any other people is denied. It is stated that the letter was written under absolute privilege and authored with reasonable and/or probable cause.

4. The 2nd Defendant filed the statement of defence dated 23rd July, 2010 and denied the Plaintiff’s claim. It is pleaded that if the publication complained about was made, it was done in the normal course of duty and the Solicitor General briefed in the ordinarily course of duty. That the complaint before the commission, Jack and Jill Supermarket and the Advocates’ against whom the complaint was lodged were entitled to receive the copies of the letter. Any breach of the Plaintiff’s constitutional rights is denied. It is further stated that the suit as amended is in breach of the Public Limitations Act Cap 39. That no statutory notice was served on the Attorney General. That the Attorney General has been misjoined in the suit and that the suit does not satisfy the provisions of the Civil Procedure Rules on amendment of pleadings.

5. The hearing of the case proceededexparte on 27th July, 2016. The 1st and 2nd Defendants were not present though served. The affidavit of service sworn on 20th July, 2016 was seen by the court. The court was satisfied that the Defendants were duly served. The hearing Notice for 27th July, 2016 is duly stamped as having been received by the Attorney General.

6. The Plaintiff testified herein (PW1). He adopted his witness statement dated 4th August, 2011. His evidence is that in October, 2007, his company, Jack and Jill Supermarket lodged a complaint with the Advocates’ Complaints Commission against it’s former advocates, Ms Khan & Katiku Advocates. That on or about 11th May, 2004, the letter in question was brought to his attention by one of the junior workers at the supermarket, Mohamed Noor (PW2). That the letter was offensive and defamatory and reflected him as an Asian Kenya racist bigot who discriminates against Africans, misuses and abuses his workers merely because they are Africans, that his complaint to the commission was instigated by personal vendetta and calculated at settling scores with his former advocates, that his letters were ridiculous and did not deserve the attention of the Commission and that he was a moron and an imbecile who did not understand the mandate of the Commission.

7. The Plaintiff further testified that the letter disparaged his reputation as a Kenyan citizen, a husband married to a Kenya African, a businessman, entrepreneur and employer. That the was letter complained about was maliciously published and that the contents thereof were untrue, abusive language was used, the letter was addressed to the company (Supermarket) and not to the Plaintiff and was not marked as private, confidential and/or for the attention of the Plaintiff. The Plaintiff further stated that the Commission failed to accord him proper services.

8. The letter in question was produced as an exhibit. The letter reads as follows:

“M/s Jack & Jill supermarket,

P.O. Box 47107,

NAIROBI

Dear sir,

I am in receipt of your letter of 6th May, 2004.

Having had a meeting with three members from your company in my office, observed your demeanor and listened to your utterances respectively, I must say that I really sympathize with your Mr. Tom Onyancha, the so called Company Advisor who is made by his boss Noorani to append his signature to very rude, uncivilized, unpalatable, abusive and defamatory letters.

Please note we shall not be cowed by your intimidating letters and you must understand that this is a Government office and NOT Noorani’s business concern where he barks and hurls insults at his African workers. We have procedures in place for dealing with complaints and the decision on whether or not a complaint has substance or merit rests solely with the Commission and not the complainant.

It is with a lot of regret and at the pain of repeating myself that I have to once again tell you for the umpteenth time and for God’s sake get it into your head this time round that you WILL NOT DICTATE TO US WHAT TO DO!

Noorani has elected to embark on a useless mission of purporting to remind me that I am a civil servant, as if I do not know that I am. It is also apparent that he has failed to get over the irritating and unfortunate notion, common among members of his racial community that Africans must be threatened and abused. This is unacceptable in the present day Kenya 40 years after independence!

As far as the Commission is concerned, your complaint against Khan & Katiku advocates has been conclusively dealt with and is a closed chapter. We shall not clog the disciplinary system with matters, which have been concluded just because Noorani is on an agenda of vendetta against and wants to settle scores with the Advocates for allegedly “humiliating” him.

The other issues raised in your letter under reference are petty and irrelevant and do not deserve any comment. Since this a busy office, I am afraid that I do not intend to waste any more time corresponding with you on this matter. Please note therefore that if you choose to write any more useless letters to us, they will not only be unacknowledged but will be shredded on receipt thereof.

By a copy of this letter I am requesting your Advocate to educate you on the mandate of the Advocates’ Complaints commission under Section 53 of the Advocates Act Cap 16 of the laws of Kenya.

Yours Faithfully,

ESTHER J. A. ADUMA. O.G.W

CS/SECRETARY

cc.

Solicitor General

State law office

Nairobi

M/s Kamau Kuria Kiraitu & Co. (Please educate your client on the

Advocates, mandate of the Commission, choice

Chai House, 3rd Floor, of appropriate words and possible

Koinange Street consequences of his careless

Nairobi statements)

M/s Khan & Katiku.

Advocate

P. O. Box 41840,

NAIROBI

EJAA/cm”

9. PW2 Mohamed Noor who was an employee of the supermarket at the material time gave evidence that he opened the letter since it was addressed to the company (Supermarket). He expressed his surprise at the contents of the letter and stated that the same were not true. He further stated that he brought the letter to the attention of the Managing Director who is the Plaintiff herein.

10. The learned counsel for the Plaintiff filed written submissions which I have considered together with the authorities relied on.

11. The elements of defamation were stated by the Court of Appeal in case of Wycliffe A Swanya v Toyota East Africa Limited & another Nairobi CA No. 70 of 2008as follows:

“It is common ground that in a suit founded on defamation the plaintiff must prove:-

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

(ii)That the defamatory statement or utterances was published by the defendants publication in the sense of defamation means that the defamatory statement was communicated to someone other than the person defamed.

(iii) That it was published maliciously.

(iv) In slander subject to certain exceptions that the plaintiff has suffered special damages.”

12. The case having proceeded exparte, the Plaintiff’s evidence remains unchallenged and is not controverted by any other evidence. The 1st and 2nd Defendants filed statements of defence and a bundle of documents and witness statements. However, the assertions in the defence have not been supported by any evidence. The bundle of documents filed by the Defendants was not produced as an exhibit herein.

13. The statement of defence filed by the Respondent remains mere assertions as no evidence was called to support the same. He who assets must prove. As stated by the Court of Appeal in the case of Maria Ciabaitaru M’mairanyi & Others v Blue Shield Insurance Company Limited Civil Appeal No. 101 of 2000 [2005]1 EA 280:

“Whereas under section 107 of the Evidence Act, (which deals with the evidentiary burden of proof), the burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue, section 109 of the same Act recognizes that the burden of proof as to any particular fact may be cast on the person who wishes the court to believe in its existence.”

14. The Plaintiff’s uncontroverted evidence has established that the words complained of concerned the Plaintiff. The words used were defamatory and offensive. Examples of the defamatory words used are: “barks and hurls insults at his African workers,” “irritating and unfortunate notion, common among members of his racial community that African’s must be threatened and abused”, “Noorani is on an agenda of vendetta against and wants to settle scores..........”

15. The letter complained of was defamatory as the language used was abusive and offensive and has not been shown to be a reflection of the truth. This connotes malice. The letter was published. It is the Plaintiff’s evidence that the letter was read by his employees and the other parties that it was addressed to. There was no duty on the part of the 1st Defendant to use defamatory statements against the Plaintiff.

16. On the question of damages, the Plaintiff is entitled to receive general compensatory damages to compensate him for the damage to his reputation, hurt and humiliation (See for example Media Group Ltd & 2 others v John Joseph Kamotho & 3 others [2010]eKLR; Joshua Kulei v Kalamaka Ltd).

17. The letter was published to the Plaintiff’s workers. According to PW2 the letter was read by Seven (7) to eight (8) workers at the supermarket then word spread around to about 80 workers. The letter was also copied to the parties in the matter that was before the Commission. However, although PW2 felt sorry for the Plaintiff because of the false allegations, his evidence was that the workforce at the supermarket remained steadily behind the Plaintiff and continued with their work at the supermarket as they knew that the allegations were false. Thus the damage to the Plaintiff’s reputation amongst the said workers was not severely damaged.

18. On the issue of exemplary and punitive damages, the same are awarded to punish the defendant and to prevent the repeat of similar behaviour. (See for example Kipyator Nicholas Kiprono Kibiwott v Clay Limited and 5 others HCC Nbi 1067/99 [2000] KLR).

19. Pursuant to the leave granted by the court, the 2nd Defendant was brought on board vide the amended plaint dated 7th August, 2007 which was filed in court on 8th August, 2007. The cause of action arose on 11th May, 2005. Under Section 3 (1) of the Public Authorities limitation Cap 39, the suit ought to have been filed within a period of one year from the date the cause of action arose. Section 3(1) of the said Act provides:

“No proceedings founded on tort shall be brought against the Government or a local authority after the end of twelve months from the date on which the cause of action accrued.”

20. On the prayer for compensation for breach of fundamental rights under section 84 of the then Constitution, no evidence has been adduced in support of the same.

21. The plaintiff has proved his case on defamation on a balance of probabilities against the 1st Defendant. The Plaintiff is entitled to both general damages and exemplary and punitive damages. I award an all inclusive sum of Ksh2,000,000/= to the Plaintiff against the 1st Defendant plus costs. The case against the 2nd Defendant is dismissed with costs.

Dated, signed and delivered at Nairobi this 20th day of July, 2017

B. THURANIRA JADEN

JUDGE