[2022] KEHC 13633 (KLR)

SG v Standard Media Group & 3 others (Constitutional Petition E066 of 2021) [2022] KEHC 13633 (KLR) (6 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13633 (KLR)

Republic of Kenya

In the High Court at Mombasa

Constitutional Petition E066 of 2021

JM Mativo, J

October 6, 2022

Between

Samuel Gatenjwa

Petitioner

and

Standard Media Group

1st Respondent

Nation Media Group

2nd Respondent

Tuko News

3rd Respondent

Ghetto Radio

4th Respondent

Judgment

1. The facts which prompted this petitioner are mainly common ground. The petitioner underwent a vasectomy. Subsequently, his wife conceived and gave birth. He blamed it on what he viewed as medical negligence and sued Marie Stopes Kenya & Dr Igogi in Mombasa High Court Civil Case Number 37 of 2006 seeking damages damages, costs and interests. In a judgment dated February 18, 2020, the court found the defendants breached duty of care owed to him and awarded him Kshs 500,000/= as damages.

2. On December 7, 2018, the respondents in their respective newspapers and websites published details of the said case. The petitioner avers that the said publications breached his right to privacy and human dignity. He contends that he learnt about the said publications from friends, neighbours, relatives and church members some of whom called him inquiring about the truth of the publications. He contends that the said publications were done in gross abuse of the respondent’s freedom of expression and media freedom. He contends that the publications infringe on his right to privacy and human dignity because it revealed his identity and personal details relating to his productive health to the world at large. As a consequence, he claims he suffered psychologically and he has been subjected to derogatory remarks from known and unknown persons and his wife has been accused of having an affair with another man which almost broke his marriage while his child conceived after the failed procedure risks ridicule. He prays for: -a.A declaration that his rights to privacy under articles 31(c) (d) of the Constitution, 17 of the International Covenant on Civil and Political Rightsand 12 of the United Nations Universal Declaration of Rights were violated;b.A declaration that his right to human dignity under article 28 of the Constitutionwere violated by the respondents jointly and severally;c.A declaration that as a result of the said breach, he suffered pain and suffering both psychologically and emotionally;d.General, punitive and exemplary damages against the respondents jointly and severally;e.A permanent injunction restraining the respondents from publishing his private information howsoever;f.Compensation;g.Costs of this suit;h.Interests on (f) & (g) above;i.Any other relief this court deems fit.

3. The 1st respondent filed the replying affidavit of Joackim Bwana dated January 19, 2022. The key highlights are: (a) the issues in question were matters of public interest considering the uniqueness of the claim; (b) the publication was privileged, fair and accurate report of the judicial proceedings; (c) the petition lacks merit; (d) to the extent that the claim is premised on defamation, the same is time barred; (e) the 1st respondent enjoys the freedom of expression; (f) the publication did not contain derogatory remarks; (g) there were no court orders restraining the publication; and (h) the case was reported in the Kenya Law Reports (e KLR), so, it’s in public domain.

4. The 2nd respondent filed the replying affidavit of Nyaboga Kiage, its court reporter. The key points are that:- (a) the article elicited public interest; (b) the proceedings, the documents and the court judgment did not recant the parties names; (c) the 2nd respondent did not authorize Allafrica to re-publish the story.

5. The 3rd respondent filed the replying affidavit of Irine Julie Majale dated December 23, 2021. Its key points are: - (a) the information is not secret, and it is still accessible to the public; (b) there was no order prohibiting publication, and (c) medical negligence is a matter of public interest.

6. The 4th respondent filed the relying affidavit of Claret Adhiambo, its news editor dated February 10, 2022 stating: - (i) vasectomy is a subject of interest to the public; (ii) that the publication was a direct reporting; (iii) there is nothing to show the proceedings were conducted in chambers or in privacy; (iv) the judgment has been published in Kenya law website.

7. In its further affidavit dated February 15, 2022, the petitioner stated that: - (a) the respondents unlawfully obtained the proceedings; (b) the suit was heard in chambers; (c) the publication of the judgment at Kenya law is meant to give both the public and legal practitioners access to caselaw; (d) the publications were made on December 7, 2018 long before the delivery of the judgment; (e) the publications were not in public interest.

8. In his submissions, the petitioner’s counsel argued that: - (a) reproductive health is private information; (b) that the judge directed that the matter be heard in chambers; (c) in many African societies matters relating to reproduction are treated as a taboo and are never discussed in public; (d) the justification cited by the respondents relating public interest does not outweigh the petitioner’s rights. To buttress his argument, he cited Campell v MGN1in which the court found for the defendant liable in a libel suit for publishing the plaintiff’s treatment details on drug addiction. Additionally, he argued that the extent to which a claim for legitimate public interest can be raised varies from case to case and relied onMurray v Express Newspapers.2 He submitted that the petitioner’s consent was not obtained before the publication, and that under Article 23, the remedies sought are merited.1[2004] 2 AC 457. 2[2008]3 WLR 1360.

9. In summation, the 1st respondent’s counsel submitted that: - (a) the article was published on December 7, 2018 yet the courts directions for the matter to be heard in chambers were issued on April 2, 2019; (b) that the publication was based on the proceedings conducted in open court on December 4, 2018; (c) that there was no legitimate expectation to privacy and relied onJ W 1 & Another v Standard Group Limited & another;3 (d) the information was privileged; (e) citing several cases, he argued that the petitioner has not proved that his rights under articles 28 have been violated; (e) this is a defamation suit disguised as a constitutional petition; (f) there was no malice in publishing the article; and (g) the petitioner does not merit the reliefs sought.3[2015] e KLR.

10. The 2nd respondent submitted that the petitioner has not established a case for breach of privacy (citingJWI & another v Standard Group Limited & another4) and that public interest as a defence for allegations of breach of privacy is designed to ensure that the individual’s right to privacy does not trump public good. He cited Arlidge, Eady and Smith on contempt5 is support of the proposition that it is important that the public should be fully informed of what takes place in court proceedings. He also relied on Shadrack B O Ghutto & 4 others v Hillary Ngweno & 3 others6 which held that the press should not be prevented from reporting matters of public concern just because they have become the subject of litigation. He submitted that the petitioner is not entitled to the reliefs sought.4[2015] e KLR.52nd Edition, Sweet and Maxwell, (1999), pages 49 to 52. 6HCC 888 of 1981.

11. The 3rd respondent’s advocate citedDavid Lawrence Kigeru Gichuki v Aga Khan University Hospital7 which held that the right to privacy is not absolute. He argued that the issue at hand is a matter of public interest and that the petitioner has not established a basis to merit the damages sought. Lastly, the electronic copies of documents relied upon by the petitioner are in admissible in evidence.7[2014] e KLR.

12. The 4th respondent’s counsel submitted that the petitioner tendered evidence in open court. He citedSamson Mumo Mtinda v Inspector General of Police Service & 4 others8which held that the right to privacy may be waived in certain circumstances. He argued that the petitioner never applied for the case to be heard in camera and that the publication was a true reporting of the proceedings without malice. (Citing JP Machira T/A Machira & Company advocates v Wngethi Mwangi & another9). Lastly, counsel submitted that the petitioner is not entitled to any of the reliefs sought.8[2014] e KLR.9[1998] e KLR.

13. First, I will address the 1st respondents contestation that this is a defamation suit disguised as a constitutional petition. Even though this is a pertinent point of law, the petitioner’s counsel did not address this ground at all. The choice to file a constitutional petition for the claim at hand calls for scrutiny of two important notions. First is the doctrine of constitutional avoidance. Second, is the law of limitation of actions. Just like res judicata, the doctrine of constitutional avoidance and the law of limitation of actions can preclude a court from entertaining a case. These two concepts are completely different from the presence or absence of jurisdiction. The court may possess the requisite jurisdiction, but it may perfectly be entitled to decline to entertain a matter if any of these two concepts are established as I will demonstrate below.

14. The law of limitation of actions warrants no explanation. Undeniably, the alleged publications took place on December 7, 2018. This petition was filed on November 24, 2021, after the lapse of almost three years. Section 4 (2) of the Limitations of Actions Act10 provides: -10Cap 22, Laws of Kenya.(2)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 after the end of twelve months from such date.

15. The statute of limitations is a statute of repose, enacted as a matter of public policy to fix a limit within which an action must be brought, or the obligation is presumed to have been paid, and is intended to run against those who are neglectful of their rights, and who fail to use reasonable and proper diligence in the enforcement thereof. These statutes are declared to be 'among the most beneficial to be found in our books. They rest upon sound policy, and tend to the peace and welfare of society. The underlying purpose of statutes of limitation is to prevent the unexpected enforcement of stale claims concerning which persons interested have been thrown off their guard by want of prosecution.1111Pashley v Pacific Elec. Co., 25 Cal. 2d 226, 228-29. 153 P.2d 325, 326 (1944) (quoting 1 HORACE G. WOOD. A TREATISE ON LIMITATION OF ACTIONS 8-9 (4th ed. 1916»; accord Neff v New York Life Ins. Co . 30 Cal. 2d 165, 169. 180 P.2d 900. 903 (1947).

16. Statutes of limitation are designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared. The theory is that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and theright to be free of stale claims in time comes to prevail over the right to prosecute them.12 The fundamental purpose of the statute of limitations is to give defendants reasonable repose, that is, to protect parties from defending stale claims. A second policy underlying the statute is to require plaintiffs to diligently pursue their claims.1312Wood v. Elling Corp., 20 Cal. 3d 353, 362, 572 P.2d 755, 760,142 Cal. Rptr. 696, 701 (1977) (quoting Order of R.R. Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342, 348 (1944»; accord Lackner v. LaCroix, 25 Cal. 3d 747, 751, 602 P.2d 393,395, 159 Cal. Rptr. 693, 695 (1979).13Jolly v. Eli Lilly & Co., 44 Cal. 3d 1103, 1112,751 P.2d 923, 928, 245 eal. Rptr. 658, 662-63 (1988) {citing Davies v. Krasna, 14 Cal. 3d 502, 512, 535 P.2d 1161, 1168, 121 Cal. Rptr. 705, 712 (1975).

17. The facts pleaded in this petition disclose civil defamation. Defamation is defined as the “action of damaging the good reputation of someone.”14 In terms of modern human rights law, defamation can be understood as the protection against “unlawful attacks” on a person’s “honour and reputation” contained in human rights instruments. Irrefutably, defamation is a civil wrong. Under section 4 (2) of the Limitation of Actions Act, a claim for defamation may not be brought after the lapse of 12 months. The petitioner’s claim is premised on libel. It is time barred. To evade the wrath of section 4 (2) of the Limitation of Actions Act, the petitioner mischievously converted his claim into a constitutional petition. This is impermissible. On this ground alone this defamation suit disguised as a constitutional petition is bound to fail.14Oxford English Dictionary.

18. Even if I were to entertain the petitioner’s claim as constitutional petition, the petitioner will still have to surmount another formidable hurdle, which is the doctrine of constitutional avoidance, defined as a preference of deciding a case on any other basis other than one which involves a constitutional issue being resolved.15 As a principle, constitutional avoidance has been linked to the doctrine of justiciability.16 Broadly speaking, justiciability governs the limitations on the constitutional arguments that the courts will entertain. It encompasses three main principles which are standing, ripeness and mootness.17 The doctrine of avoidance was fortified in Sports and Recreation Commission v Sagittarius Wrestling Club and Anor18 in which Ebrahim JA said: -15S Woolman & M Bishop, Constitutional Law of South Africa (2013) 3-21. 16I Currie & J De Waal The Bill of Rights Handbook (2013) 72. 17Ibid, Page 72. 182001 (2) ZLR 501 (S).“…Courts will not normally consider a constitutional question unless the existence of a remedy depends upon it; if a remedy is available to an applicant under some other legislative provision or on some other basis, whether legal or factual, a court will usually decline to determine whether there has been, in addition, a breach of the Declaration of Rights.”

19. Courts are generally loathe to determine a constitutional issue in the face of alternative remedies. In that event they would rather skirt and avoid the constitutional issue and resort to the available alternative remedies.19 In S v Mhlungu20 the court explained constitutional avoidance as a general principle in the following terms: -“I would lay it down as a general principle that where it is possible to decide any case, criminal or civil, without reaching a constitutional issue, that is the course which should be followed.”19See Chawira & others v Minister of Justice and Parliamentary Affairs & Others CCZ 3/17, constitutional court of Zimbambwe.201995 (3) SA 867 (CC) 59.

20. The doctrine of avoidance is primarily viewed by courts from the position that although a court could take up a matter and hear it, it would still decline to do so if there is another mechanism through which the dispute could be resolved. The Supreme Court of Kenya in Communication Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others (at para 256) stated that the principle of avoidance means that a Court will not determine a constitutional issue when a matter may properly be decided on another basis. In S v Mhlungu (supra) Kentridge AJ, stated in the dissenting opinion respecting the principle of avoidance (at paragraph 59), that he would lay down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed. And in Ashwander v Tennessee Valley Authority21 the US Supreme Court held that it would not decide a constitutional question which was properly before it if there was also some other basis upon which the case could have been disposed of. Currie and de Waal22 opine that the principle of constitutional avoidance is of crucial importance in the application of the Bill of Rights. The author’s state: -21297 US 288, 347 (1936).22I Currie & J De Waal The Bill of Rights Handbook (2013) 72. “When applying the Bill of Rights in a legal dispute, the principle of avoidance is of crucial importance. As we have seen, the Bill of Rights always applies in a legal dispute. It is usually capable of direct or indirect application and, in a limited number of cases, of indirect application only. The availability of direct application is qualified by the principle that the Bill of Rights should not be applied directly in a legal dispute unless it is necessary to do so.”

21. Important and critical issue(s) arise from the above statements by Currie and de Waal. It is the fact that every legal dispute is capable of either direct or indirect application of the Bill of Rights. Every dispute is essentially a constitutional issue when one looks at it. This arises necessarily because of the principle of constitutional supremacy.23 One needs to be aware however of the singleness of the legal system. This is embodied in the fact that the supremacy of the Constitution does not detract from the usefulness of the rest of the body of law. Inessence all other laws give full expression to the ideals of the Constitution until found to be inconsistent to it.23See Article 2 (4) of the Constitution.

22. The doctrine of ripeness and constitutional avoidance gives credence to the concept that the Constitution does not operate in a vacuum or isolation. It has to be interpreted and applied in conjunction with applicable legislation together with other available legal remedies. Where there are alternative remedies the preferred route is to apply such remedies before resorting to the Constitution. The possibility of the elevation of any dispute to a constitutional issue is what is sought to be averted by the doctrines of ripeness and constitutional avoidance. It is borne out of a realisation that all legislative or common-law remedies are part of the legal system. In the United States of America, and as long back as 1885, Liverpool, New York and Philadelphia Steamship Co v Commissioners of Emigration24, Matthews J said: -24113 US 33 (1885) at 39. “(N)ever…anticipate a question of constitutional law in advance of the necessity of deciding it;…never….formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.”

23. In summation, the doctrines of ripeness and constitutional avoidance shun to deal with a constitutional issue where there exists another legal course which can give the litigant the relief he seeks. In other words, a constitutional issue is not ripe for determination until the determination of the constitutional issue is the only course that can give the litigant the remedy he seeks. Both constitutional avoidance and ripeness avert the determination of the constitutional issues until it becomes very necessary to the extent that it is the only course available to assist the litigant ‘s cause. The exceptions to the application of the doctrine of constitutional avoidance are: -i.where the constitutional violation is so clear and of direct relevance to the matter,ii.in the absence of an apparent alternative form of ordinary relief andiii.where it is found that it would be a waste of effort to seek a non-constitutional resolution of the dispute.2525Currie & De Waal above.

24. As alluded to earlier, a reading of the issues presented in this petition leave no doubt that the petitioner’s grievances can effectively be addressed in a civil suit premised on the law of defamation. Litigants should avoid trivializing the Constitution by constitutionalizing every dispute and leave constitutional adjudication to pure constitutional issues. This is a proper case for the court to invoke the doctrine of constitutional avoidance.

25. The third hurdle upon which this petition collapses is whether the petition raises constitutional questions to warrant invocation of the Constitution. I am alive to the fact that every case has a constitutional underpinning. However, it is important to point out that not every dispute ought to be filed in the constitutional division of the high court unless it raises constitutional issues. A constitutional question is an issue whose resolution requires the interpretation of a constitution rather than that of a statute.26 The issues raised in this case can be resolved by interpreting the facts and the defamation act.26http://www.yourdictionary.com/constitutional-question.

26. When determining whether an argument raises a constitutional issue, the court is not strictly concerned with whether the argument will be successful. The question is whether the argument forces the court to consider Constitutional rights or values.27To determine whether the publications complained of are defamatory or whether they exposed him to ridicule or odium or psychological trauma, one does not need to invoke Article 31. These issues can be resolved within the realm of defamation law.27Justice Langa in Minister of Safety & Security v Luiters, {2007} 28 ILJ 133 (CC).

27. Defining a constitutional question, the South African Constitutional Court in Fredericks & Others v MEC for Education and Training, Eastern Cape & Others28 (Justice O’Regan recalling S v Boesak29 ) stated: -28{2002} 23 ILJ 81 (CC).29{2001} (1) SA 912 (CC).“The Constitution provides no definition of “constitutional matter.” What is a constitutional matter must be gleaned from a reading of the Constitution itself: If regard is had to the provisions of ...the Constitution, constitutional matters must include disputes as to whether any law or conduct is inconsistent with the Constitution, as well as issues concerning the status, powers and functions of an organ of State.., the interpretation, application and upholding of the Constitution are also constitutional matters. So too,..., is the question whether the interpretation of any legislation or the development of the common law promotes the spirit, purport and objects of the Bill of Rights. If regard is had to this and to the wide scope and application of the Bill of Rights, and to the other detailed provisions of the Constitution, such as the allocation of powers to various legislatures and structures of government, the jurisdiction vested in the Constitutional Court to determine constitutional matters and issues connected with decisions on constitutional matters is clearly an extensive jurisdiction.”30302001 (1) SA 912 (CC)

28. Courts abhor the practice of parties converting every issue into a constitutional question and filing suits disguised as constitutional petitions when in fact they do no not fall anywhere close to violation to constitutional Rights. Despite my findings on the issues discussed above, I will address the petition on merit.

29. First is the hurdle created by section 6 of the Defamation Act which provides: -6. Newspaper reports of judicial proceedingsA fair and accurate report in any newspaper of proceedings heard before any court exercising judicial authority within Kenya shall be absolutely privileged:Provided that nothing in this section shall authorize the publication of any blasphemous, seditious or indecent matter.

30. There is no argument before me to suggest that the proceedings as reported were not fair or accurate. In fact, they reported the facts as they were. This ground alone extinguishes the petitioners claim. Second, as at the time of the publication, ie. December 7, 2018, there was no court order barring reporting the proceedings. Again, to the extent that the publications were accurate and fair, this petition collapses.

31. Third, my understanding of the defence raised by the respondents is that it includes justification, fair comment, public interest and their constitutional right to freedom of expression. I propose to discuss some of these defences below, albeit, briefly.

32. I start with Justification (ie, the truth of the statement). I need not belabor on this. The truth of the story has not been disputed. No evidence was tendered to show that the respondents distorted the story. I find that his defence is available to the respondents and a formidable ground which has been established.

33. Next is Fair comment (ie, whether the statement was a view that a reasonable person could have held). To me, the story as reported depicted the petitioner’s ‘grievance as disclosed in the pleadings. There is nothing to demonstrate that the respondents acted unfairly. It was a fair reporting/comment on the proceedings

34. The other ground cited by the respondents is public interest. The essence of this defence is that the respondents have a duty to disseminate the information complained of and that that the public have a corresponding interest in receiving the story. The petitioner said nothing to discount the fact that the public have a corresponding interest on the story. Even though this defence is by no means limited to the publication of stories by the media, it is in the context that the idea of publication in the public interest is at its most pronounced. The leading case on this defence remains Reynolds v Times Newspapers,31 where the House of Lords proposed a number of guidelines that a defendant should observe if wishing to argue that a publication was responsible and in the public interest. The said guidelines properly fit in this case. These non-exhaustive guidelines, listed by Lord Nicholls, require the person publishing the story to consider: -31{1999}, http://www.publications.parliament.uk/pa/ld199899/ldjudgmt/jd991028/rey01. htma.The seriousness of the allegation/ story/information, ie if it is not true what will be the level of misinformation to the public and what will be the corresponding harm to the individual.b.The nature of the information and the extent to which the subject-matter is a matter of public concern.c.The source of the information and whether it is reliable or motivated by malice and/or avarice.d.Whether suitable steps have been taken to verify the information.e.Whether the allegation in a story has already been the subject of an investigation which commands respect.f.Whether it is important that the story be published quickly.g.Whether comment was sought from the claimant, or whether that was not necessary in the context of the story.h.If the article or story includes the gist of the claimant’s version of events.i.Whether the article or story is written in such a way as to amount to statements of fact, or whether it raises questions and is suggestive of the need for further investigation.j.The timing of the publication.

35. If at all the petitioner desired the story to remain guarded, nothing prevented him from moving the court at the earliest opportunity possible to issue an order that the proceedings should not be reported.

36. The other ground is absence of malice. The petitioner has not demonstrated malice in the publications in question. There was no attempt to suggest so. It has not been shown that the publications were factually wrong. Evidence of malice may be found in the publication itself if the language used is utterly beyond or disproportionate to the facts. There is no material before the court to warrant the court to infer malice.

37. In view of my analysis of the facts, the law and the findings arrived at on each issue discussed above, the conclusion becomes irresistible that this petition has no merits. Accordingly, I dismiss the petition dated November 24, 2021 with no orders as to costs.

SIGNED AND DATED THIS 6TH DAY OCTOBER 2022JOHN M. MATIVOJUDGESIGNED, DATED AND DELIVERED VIRTUALLY AT MOMBASA THIS 11TH DAY OCTOBER 2022OLGA SEWEJUDGE