[2022] KEHC 628 (KLR)

Shadrack v The Standard Group Limited & another (Civil Case 247 of 2016) [2022] KEHC 628 (KLR) (Civ) (6 May 2022) (Judgment)

Neutral citation: [2022] KEHC 628 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Case 247 of 2016

JK Sergon, J

May 6, 2022

Between

Jasper Ndeke Shadrack

Plaintiff

and

The Standard Group Limited

1st Defendant

P. Kemoi Ng’eno

2nd Defendant

Judgment

1. The plaintiff herein filed a suit by way of the plaint dated 22nd September, 2016 and sought for judgment against the defendants in the following manner:a.General damagesb.Exemplary and aggravated damagesc.Costs of this suitd.Intereste.Any further or other relief this court may deem fit to grant.

2. The plaintiffs pleaded in his plaint that the defendants falsely and maliciously produced and published or caused to be printed under the bolded large font title in an article published on page 6 of the Nairobian edition No.168 dated 22nd-28th April 2016;“Did City Hall boss receive bribes from disabled group?”

3. The plaintiff further pleaded that in the said article the defendants published the following words defamatory of the plaintiff;“A deputy director of City Hall’s planning department could land in trouble for allegedly receiving bribes from a group of disabled people.The group with more than 50 members dubbed Kenya Youth with disability has reported to the police how City Hall Officer Jasper Ndeke allegedly conned them after promising to allocate them shoe shinning shades.The matter has been booked by the group’s chairman Jacob Musango at International Live House Police post under O.B No. 10/09/04/2016” and the could face obtaining by false pretence charges after police investigations.Musango told the Nairobian the group had applied to be allocated the shades at Accra road, outside Family Bank Moi Avenue and National Archives. When we approached him with application letters in May 2015 in his 4th floor office at City Hall Annex ,he said the issue was not hard if we were willing to give him only Kshs.60,000After collecting the cash from the members, Musango claims he, together with another member visited the officer who received the cash in an envelope and promised to act on the matter.We had arranged such that the shades could employ some of us and the profits shared equally .But days later we saw the promised allocations had been taken by other people who probably paid higher bribes …Musango claims the officer has been playing hide and seek games ………….”We are optimistic that the police will take swift action to investigate the matter and arrest the officer or return our hard earned money. “says Musango

4. It was also pleaded by the plaintiff in his plaint that the words meant and were understood to mean that the plaintiff was corrupt and unethical, had committed a criminal offense punishable by imprisonment and was thus unfit for public office, he received 60,000 in an envelope under the pretext of allocating disabled people shoe shining shades, he committed economic crimes offences under the Anti-corruption Act, and is a liar and a con man.

5. The plaintiff further pleaded that the contents of the said article were disparaging of him and were indeed false, malicious, and defamatory, and that the defendants in publishing the said articles did so out of extreme malice and spite, with the intent of injuring the plaintiff and exposing him to great ridicule, odium, and contempt in the eyes of his family, friends, coworkers, professional peers, and the general public.

6. The defendants entered appearance upon service of summons and filed their statement of defence on 25th October, 2016 to deny the plaintiff’s claim.

7. At the hearing, the plaintiff testified while the defendant called three (3) witnesses to support its case.

8. The plaintiff who was PW1 adopted his signed witness statement together with his supplementary witness statement as his evidence in chief and stated that the Nairobian had published an article claiming that he bribed a group of disabled persons, despite the fact that he claimed he didn't know them and had never received a bribe.

9. The plaintiff testified that he has never been approached by any group for a favour and he has never been interrogated by police. He further testified that the article affected his professional career as a civil servant as well as private practice and that he has been unable to achieve any promotion and at the family level he has lost trust.

10. It was the testimony of the plaintiff that no lunch was requested, that he has never seen the 2nd defendant, and that the article was published before he was consulted for verification.

11. In cross-examination, the plaintiff stated that he was a deputy director of planning in 2016 before being promoted to Director of planning and enforcement, that he did not assist anyone with obtaining a shoe shining location, and that his position entailed outdoor advertising.

12. In cross-examination, the 9th plaintiff stated that his promotion came around 2019 and that his job did not entail allocating open spaces in the middle of town.

13. Jacob Mutuku Musango who was DW1 adopted his signed witness statement as evidence and stated that in 2015, he was a shoe shiner at town, and the plaintiff was a Deputy Director, and they met in his office on the 4th floor of the city annex.

14. The witness stated that the plaintiff had told them to come back with a gift, they went back three days later, paid him Kshs.60,000/= and were never allocated the spots for shoe shiners, despite the fact that they had taken something as a gift. That the 2nd defendant is a well-known journalist who accompanied them to the police station to file a report, and that the information published was accurate.

15. In cross-examination, the witness stated that he is the Chairman for Shoe Shiners and wrote to the City County for allocation of shoe shiners space but he did not come with the letter of application.

16. The witness further stated that he is unaware of the letter dated August 18, 2015 allocating them shoeshine booth, and that the Director City Inspectorate assigned him the existing location near Kenya Cinema eight months ago, for which he paid Kshs.60,000/= in facilitation.

17. It was the evidence of DW1 that he reported the incident of bribery to the police but the complaint was never taken seriously.

18. In re-examination, it was the statement of DW1 that they did not connive with the other defendants to defame the plaintiff.

19. Andrew Onyango Omondi who was DW2 adopted his signed witness statement dated 9th September 2020 as evidence and stated that he was a hawker of sweets along Kenya Cinema and operates three other shoe shiners booths.

20. The witness stated that they went to the plaintiff with Mr. Musango in order to be assisted in getting a shoe shiners booth, but he informed them they needed to provide maziwa in order to be assisted, so they went to obtain money and brought Kshs.60,000/=, but they were never assisted.

21. In cross-examination, the witness stated that he was the secretary of the disabled group and Musango (DW1) is their chairman who is the one who took the money that had been referred to as maziwa by the plaintiff in order to help them get the shoe shiners booth.

22. It is the testimony of the witness that they reported their complaint which was booked in the Occurrence Book but the police did not act on their complain.

23. Kipkemoi Ng’eno who was DW3 adopted his signed witness statement dated 9th September 2020 as evidence in chief and produced two documents that is a letter dated 18th August 2015 and an O.B dated 9th April 2016 as Dexh 1 and 2.

24. The witness stated that the complainants were interviewed before the story was published, and he called Mr. Ndeke, the plaintiff, to get his side of the story, but he denied knowing of the tale and hung up.

25. It was the testimony of DW3 that he did not have a grudge against the plaintiff and that he accompanied the duo DW1 and DW3 to the police station to report and that he did not see the application for space for the shoe shiners booth but he instead relied on their oral testimony.

26. At the close of the hearing, this court called upon the parties to file and exchange written submissions.

27. The plaintiff on his part gave a brief background of the matter and identified four main issues for determination to be as follows;a.Whether the publication was defamatoryb.Whether the defence of fair comment and justification are holding /applicable in this matterc.Whether the publication was maliciousd.Whether the plaintiff is entitled to damages.

28. On the first issue, the plaintiff relied on the case of Janto Construction Company Ltd v Enock Sikolia & 2 Others 2020 eKLR Justice Mrima made reference to the case of J Kudwoli & Another v Eureka Educational & Training Consultants & 2 Others(1993) eKLR by quoting Justice Kuloba as he then was;“Defamation is the publication of a statement which tends to lower a person in the estimation of right-thinking members of society generally, or which tends to make them shun or avoid that person..........A defamatory imputation is one to 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....99. I believe I have said enough on what the tort of defamation is all about. However, if one is in still doubt, the holding of the British Columbia Supreme Court in Murphy v. Ha March (13 DLR 3d 484) settles it in the following manner: -Defamation is where a shameful action is attributed to a man (he stole my purse), a shameful character (he is dishonest), a shameful cause of action (he lives on the avails of prostitution) or a shameful condition (he has small pox). Such words are considered defamatory because they tend to bring the man into hatred, contempt or ridicule. The more modern definition of defamation is words tending to lower the plaintiff in the estimation of right-thinking members of the society generally.”

29. It is the plaintiff’s submissions that the publication was defamatory because it mentioned him, was published by the defendant, was false/malicious, and clearly stated his name, and that he received Kshs.60,000/= from a group of disabled businesspeople, that he has been playing hide and seek, and that the promised allocations had been taken up by other people who had probably paid higher bribes.

30. The plaintiff further submitted that any reasonable person reading the contested article would conclude that the plaintiff was corrupt, had accepted a bribe, and had deceived a group of disabled youth by falsely asserting that he could secure them stalls.

31. On the second issue, it is the plaintiff’s contentionthat the plaintiff did not con the said group of youth nor did he receive a bribe on the premise that he would allocate them a shoe shining space, and that the defendants did not prove the truth of the allegations in the publication. The plaintiff pointed out that no police officer contacted him, and that no police officer testified as to whether a complaint had been filed or whether the OB supplied was real.

32. The plaintiff submitted that it was strange that the defendants never reported to other bosses at City hall who they seemed to know but chose to have it splashed in the newspaper a whole year later. On this the plaintiff relied on the Civil Suit No.3 of 2020 Ernest Omondi Owino & Another v Felix Olick,The Star Newspaper and another (2021) eKLR Justice Kiarie Waweru mentioned the case of Uhuru Muigai Kenyatta v Baraza Limited (2011) eKLR where Rawal J (as she then was) stated inter alia:“the information that causes defamation will be assumed to be untrue until the defendant proves otherwise……While taking defence of justification or qualified privilege in the defamation case, the defendant was required by law to establish the true facts and the plaintiff has no burden to prove the defence raised by the defendant. Once verified, the justification or qualified privilege does not insert the defendant and in any event, the onus that the same is true rests on the defendants to make it a fair publication”

33. On the third issue, the plaintiff contends that from the hearing, that it is obvious that the group of disabled hawkers were disgruntled people who were probably hitting back at the city county government for failure to get stalls at the designated points. The plaintiff further contends that the publication was malicious as the group wanted to be allocated space as per their terms and decided to malign the plaintiff’s name.

34. It is the plaintiff’s submissions that the defendants were reckless in publishing a story given to them in the streets without verifying the truth or hearing the plaintiff’s side of the story. On this argument the plaintiff relied on High Court Civil Suit No.697 of 2009- Phineas Nyaga v Gitobu Imanyara (2013) eKLR it was held interalia“Malice here does not necessarily mean spite or ill-will but recklessness itself may be evidence of malice. 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 but the law does not weigh in a hair balance and it does not follow merely because the words are excessive, there is therefore malice. Malice may also be inferred from the relations between the parties before or after publication or in the conduct of the defendant in the course of the proceedings. Malice can be founded in the publication itself if the language used is utterly beyond the facts. The failure to inquire into the facts is a fact from which inference of malice may properly be drawn. Any evidence, which shows that the defendant knows the statement was false or did not care whether it be true or false will be evidence of malice.”

35. On the fourth issue, the plaintiff submitted that the article linking him to having received Kshs.60,000/= as a bribe was very embarrassing and the defendant did not offer an apology even after receiving a demand letter. The plaintiff further submits that the Nairobian Newspaper is widely read and has both national and global circulation. The plaintiff relied on several authorities one of them being CAM v Royal Media Services Limited (2013) eKLR Civil Appeal No. 283 of 2005 the Court of Appeal stated;“No case is like the other. In the exercise of discretion to award damages for defamation, the court has a wide latitude. The factors for consideration in the exercise of that discretion as enumerated in many decisions including the guidelines in Jones V Pollard (1997) EMLR 233-243 include objective features of the libel itself, such as its gravity, its province, the circulation of the medium in which it is published and any repetition; subjective effect on the Plaintiff’s feelings not only from the prominence itself but from the Defendant’s conduct thereafter both up to and including the trial itself; matters tending to mitigate damages for example, publication of an apology; matters tending to reduce damages; vindication of the Plaintiff’s reputation past and future.”

36. The plaintiff finally submitted that an award of Kshs.10,000,000/= as general damages and Kshs.1,000,000/= as aggravated /exemplary damages.

37. In reply, the defendants gave brief facts of the matter and identified four issues for determination to be as follows;i.Whether the plaintiff established the necessary ingredients to prove the tort of defamationii.Whether the publication was maliciousiii.Do the defences of justification and fair comment apply?iv.Whether the plaintiff is entitled to the reliefs /damages sought.

38. On the first issue, the defendant submittedit is undisputed that the defendants published the article in question and that it referred to the plaintiff, but the question was whether the words were defamatory, false, and malicious, and that the plaintiff has the burden of proving malice, and that in order to be awarded damages for defamation, the plaintiff must present evidence of actual damage to his reputation and character to enable the court to assess an appropriate award.

39. The defendant contends that the absence of the testimony of third parties and evidence of at least an independent witness is mandatory to prove defamation. The defendant relied on the case of Registered Trustees of the sisters of Mercy t/a Mater Misericordiae Hospital v Jacinta W Maina & Another (2014)it was stated that“She added that the only evidence tendered on behalf of the appellant was that of his wife and daughter which was not sufficient. Independent evidence was required to prove defamation in the eyes of third parties. Be that as it may, the respondent had issued an apology for the mistake.”

40. On whether the publication was malicious, the defendants submit that the article is true and there was no malice on their part, that there is no bad blood between the plaintiff and the defendants, and that the plaintiff's claim that the article was motivated by malice is false because the article served the greater good of public interest and cause and was true in fact.

41. On whether the defence of justification can apply, the defendants submitted that from the defendants’ witness statements and their testimonies given in court, they stated that the publication accurately captured what they had reported to the 2nd defendant during the interview. On this argument the defendants relied on the case of Machira & Co. Advocates v East African Standard (2001) KLR 638 where the court held as follows:“A defendant is permitted to plead justification only where it is clear that the allegations he made and are complained of are true infact or substantially so.”

42. On whether the defence of fair comment can apply, the defendants argued that the article was about the plaintiff obtaining money under false pretenses, which is a matter of public interest because the public has a legitimate concern about civil servants obtaining money under false pretenses in order to perform their duties by serving the public, and the defendants had a responsibility to inform the public about such malpractices.

43. On this argument the defendant relied on the case of George Benedict Maina Kariuki v Nairobi Star Publication Limited & Carole Maina (2016) eKLR the learned judge relied on the defence of fair comment as upheld in the case of Slim v Daily Telegraph (1968)1 ALL.E.ER 497 where the judge held that:“If [the writer] is an honest man expressing his genuine opinion on a subject of public interest, then no matter that his words conveyed derogatory imputations; no matter that his opinion was wrong or exaggerated or prejudiced, and no matter that it was badly expressed so that other people read all sorts of innuendos into it, nevertheless he has a good defence of fair comment. His honesty is the cardinal test. He must honestly express his real view. So long as he does this, he has nothing to fear, even though other people may read more into it… I stress this, because the right of fair comment is one of the essential elements of freedom of speech. We must ever maintain this right intact. It must not be whittled down by legal refinements. When a citizen is troubled by things going wrong, he should be free to ‘write to the newspaper’ [or write in the newspaper, as is the case herein] and the newspaper should be free to publish his letter [or article]. It is often the only way to get things put right. The matter must of course be one of public interest. The writer must get his facts right; and he must honestly state his real opinions But that being done, both he and the newspaper should be clear of any liability. They should not be deterred by fear of libel actions…”

44. On quantum, it is the contention of the defendants that the plaintiff did not testify as to the fact of any financial loss would have formed a basis for the ascertainment of damages and the court was not supplied with information to ascertain the plaintiff’s worth on account of any claimed injury in reputation and character or credit.

45. Upon considering the evidence tendered and the competing submissions together with authorities relied upon, I find the following to be the issues arising for determination:a.Whether the plaintiff has made a case for defamation against the defendants;b.Whether the defences of truth/justification and fair comment are available to the defendants; andc.Whether the plaintiff is entitled to the reliefs sought.

46. In addressing the foremost issue, I turn my attention to the case of Samuel Ndungu Mukunya v Nation Media Group Limited & Another [2015] eKLR wherein the court aptly laid out the ingredients to be proved in a defamatory claim as follows:a.The libel must be published by the defendant.b.The published words must refer to the claimant.c.The statement as published must be false and defamatory of the plaintiff.d.The publication was malicious.

47. From my analysis of the pleadings and evidence placed before me, I established that it is not in dispute that the impugned publications were made by the 2nd defendant as an employee of the 1st defendant, and that the same made reference to the plaintiffs. I am therefore satisfied that the plaintiffs have satisfied the first and second ingredients for defamation.

48. On the third ingredient to do with whether the publication was false and defamatory of the plaintiff, I considered the definition of what constitutes a defamatory statement as demonstrated by the Court of Appeal in the authority of S M W v Z W M [2015] eKLR thus:“A statement is defamatory of the person of whom it is published if it tends to lower him/her in the estimation of right thinking members of society generally or if it exposes him/her to public hatred, contempt or ridicule or if it causes him to be shunned or avoided.”

49. The courts have unanimously held that in order to determine whether a statement or publication is defamatory, one must seek to discover the meaning conveyed by the words in question to an ordinary/reasonable person.

50. In his plaint, the plaintiff set out the natural and ordinary meaning of the words associated with the impugned publication in the manner indicated earlier in this judgment.

51. Upon considering the same alongside the contents of the publication in question, I am convinced that the plaintiff has demonstrated the manner in which the publications could be inferred in the mind of the ordinary man and consequently lowered their reputation in the minds of members of the public.

52. On a similar note, in addressing the defendants’ position that the evidence of plaintiff was not sufficient in ascertaining the manner in which the reputation of the plaintiff was brought to ridicule and lowered, I opine that the plaintiff would have succeed in his claim so long as they are able to demonstrate how a reasonable person would receive the defamatory publication, which has been done. In so finding, I borrow from the Court of Appeal’s rendition in the recent case of Miguna Miguna v Standard Group Limited & 4 others [2017] eKLR where it held thus:“By holding that the appellant needed to call witnesses to prove that the story was viewed and read as published, the learned Judge placed too high a standard on the part of the appellant whose duty did not extend beyond the usual standard in a civil case such as the one that was before her to prove the case on a balance of probabilities. We are of the respectful opinion that the appellant proved the case to the required standard.”

53. In the absence of any credible evidence to the contrary, I am therefore satisfied that the plaintiff has proved that the publication is defamatory against them.

54. On the ingredient of malice, while it is apparent that the 2nd defendant reached the plaintiff on phone, it is also apparent that the impugned publication was made by the 2nd defendant without granting the plaintiff sufficient opportunity to properly respond to the serious allegations made against him in the publication or without demonstrating that he had gathered enough credible evidence to support the making of the publication.

55. In his evidence, the 2nd defendant claimed that he called the plaintiff and inquired about the allegations, which the plaintiff denied knowing the group of disabled members or receiving any calls from any of the defendants, despite that, the 2nd defendant went ahead and published the disputed article without further investigation.

56. In other words, the defendants have not shown by way of credible evidence that the decision to publish the impugned material was made in good faith and upon the exercise of due diligence and the carrying out of thorough investigations. I am therefore satisfied that the plaintiff has proved that the impugned publication was actuated by malice.

57. In so finding, I am persuaded by the following decision adopted by the court in the case of Phinehas Nyagah v Gitobu Imanyara [2013] eKLR thus:“Malice here does not necessarily mean spite or ill-will but recklessness itself may be evidence of malice. 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 but the law does not weigh in a hair balance and it does not follow merely because the words are excessive, there is therefore malice. Malice may also be inferred from the relations between the parties before or after publication or in the conduct of the defendant in the course of the proceedings. Malice can be founded in the publication itself if the language used is utterly beyond the facts. The failure to inquire into the facts is a fact from which inference of malice may properly be drawn.”

58. In the premises, I find that the plaintiff has proved his claim for defamation against the defendants.

59. On the second issue concerning whether the defences of truth/justification and fair comment are available to the defendants, having already found that the defendants did not bring any credible evidence to show that the impugned publications were based on truthful and verifiable facts, I see no need to dwell any further on the subject of truth/justification.

60. On the defence of fair comment on a matter of public interest, in order for the defendants to succeed, they would be required to meet the following threshold set out in the case of Jacob Mwanto Wangora v Hezron Mwando Kirorio [2017] eKLR thus:“In Peter Carter – Rucks Treatise on Libel and Slander stated as follows:“…For the defence of fair comment to succeed it must be proved that the subject matter of the comment is a matter of legitimate public interest; that the facts upon which the comment is based are true and that the comment is fair in the sense that it is relevant to the facts and in the sense that it is expressed of the honest opinion of the writer.”

61. Upon my examination of the pleadings, material and evidence on record, I find that the defendants have not satisfied me that the impugned statements were derived from true facts for which they were merely giving an opinion.

62. Consequently, I am of the view that the defences pleaded above are not available to the defendants, in the absence of proof to support the same.

63. This brings me to the third issue for determination, on the reliefs sought by the plaintiffs.

64. On general damages for libel, I considered the professional standing of the plaintiff who going by his testimony and supporting evidence, is a Director of planning and enforcement at the City County. I also took into account his evidence that he the article affected his professional career both as a civil servant and in private practice and even also affected his children.

65. I have considered the case of Miguna Miguna v Standard Group Limited & 4 others [2017] eKLR in which the Court of Appeal upheld an award of Kshs.5,000,000/= made under this head, and the more recent case of Michael Kamau Mubea v Nation Media Group Limited & 2 others [2019] eKLR in which this court awarded a sum of Kshs.7,000,000/= on general damages to a plaintiff who was both a lawyer and a journalist. I find the award of Kshs.5,000,000/= to be reasonable for the plaintiff, in the circumstances.

66. On aggravated damages, it is apparent that no formal apology was made by the defendants in a bid to mitigate the damage already occasioned particularly to the reputation of the plaintiffs, noting that the impugned publication had a wide circulation. I am therefore satisfied that the plaintiff is entitled to an award of aggravated damages. I therefore find a sum of Kshs.2,000,000/= to be fair upon considering my award of Kshs.3,000,000/= made on aggravated/exemplary damages in the aforementioned case of Michael Kamau Mubea (supra) though in that case, the defamatory publications were continuously made.

67. As regards exemplary damages, the same are only to be awarded in limited instances. The categories of cases in which exemplary damages should be awarded are set out, at paragraph 243 of Halsbury’s Laws of England, as follows: -“Exemplary damages should be awarded only in cases within the following categories: -a.Oppressive, arbitrary on unconstitutional action by servants of government;b.Conduct calculated by the defendant to make him a profit which may well exceed the compensation payable to the plaintiff; orc.Cases in which the payment of exemplary damages is authorized by statute.

68. In my assessment of the evidence before this court, I find nothing to indicate that the offending publication was intended for a specific profit. I therefore hold that the plaintiff is not entitled to an award of exemplary damages.

69. In John V MGN Limited ([1996] ALL ER 35); Standard Limited V G.N. Kagia T/A Kagia & Company Advocates (2010) eKLR and Radio Africa Ltd & Another v Nicholas Sumba & Another [2015] eKLR ), the courts held that exemplary damages are awarded where the defendant’s conduct was calculated to make some profits for the defendant which would have exceeded the compensation payable to the plaintiff.

70. In the end therefore, judgment is hereby entered in favour of the plaintiff and against the 1st and 2nd defendants jointly and severally, in the following manner:i. General damages for libel Kshs.5,000,000/=ii. Aggravated damages Kshs.2,000,000/ =TOTAL. 7,000,000/=iii. The plaintiff shall have costs of the suit and interest on the total award of Ksh.7,000,000/= each at court rates from the date of judgment until payment in full.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 6TH DAY OF MAY, 2022. …….….…………….J. K. SERGONJUDGEIn the presence of:………………………… for the Plaintiff………………………… for the Defendant