[2023] KEHC 24929 (KLR)

Upendo Foundation & another v Obongo (Civil Case E004 of 2021) [2023] KEHC 24929 (KLR) (7 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24929 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Civil Case E004 of 2021

KW Kiarie, J

November 7, 2023

Between

Upendo Foundation

1st Plaintiff

Peter Fish

2nd Plaintiff

and

Kennedy Odhiambo Obongo

Defendant

Judgment

1. Upendo Foundation, the first plaintiff is a non-governmental organization constituted and Incorporated under the provisions of the Non-Governmental Organizations Co-Ordination Act cover and is involved in charity work meant to empower members of the community.

2. Peter Fish, the second plaintiff is the international coordinator of a charitable organization named Amani UK.

3. Kennedy Odhiambo Obongo, the defendant in this case, was previously in a relationship with the Upendo organization. However, as per the plaintiffs, this relationship broke down, leading to both parties going their separate ways. The defendant claims to be the manager of the Imani Community Development Organization and also asserts that he was one of the founders of the Upendo organization.

4. The relationship between the second plaintiff and the defendant became strained due to accusations and counter-accusations of misappropriation of funds meant for charity. The fallout became acrimonious and the defendant wrote some emails to the second plaintiff and copied them to their donors and specifically to Amani UK. Three emails dated the 28th of July 2021, the 31st of July 2021, and the 1st of August 2021 gave rise to this suit.

5. As a result of the utterances complained of, the plaintiffs are seeking the following reliefs:a.General and exemplary damages for defamation;b.Unconditional and/or unqualified apology published in a like and/or similar manner as the utterances complained of, in default, damages in lieu of apology;c.permanent injunction restraining the defendant, either by himself, agents, servants, and/ or persons acting under the directions and/or instructions of the defendant, from uttering, repeating, publishing, and /or in any other manner whatsoever, making the false allegations concerning and /or touching on the plaintiffs and their staff;d.The costs of this suit be borne by the defendant; ande.Such further and/or other relief as the honorable Court may deem fit and expedient to grant.

6. The defendant refuted the accusations of defaming the plaintiffs. He argued that he was simply responding to an email that had been sent by the second defendant to their donor partners. Therefore, he claimed that this lawsuit was an abuse of the court process.a.Each party presented issues for determination. From these issues, I have distilled the following:b.Whether the mails, in issue, were defamatory;c.whether the plaintiffs established the elements of defamation;d.Whether the plaintiffs were defamed;

7. Gatley on Libel and Slander defines defamation as follows:The gist of the torts of libel and slander is the publication of matter (usually words) conveying a defamatory imputation. 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. The standard of opinion is that of right-thinking persons generally. To be defamatory an imputation need have no actual effect on a person's reputation; the law looks only to its tendency. A true imputation may still be defamatory, although its truth may be a defence to an action brought on it; conversely untruth alone does not render an imputation defamatory.

8. The following emails, which form the basis of this case, are included below as filed:Letter, date Wednesday, July 28, 2021Dear Peter,Attached, you will find the judgment of the Honorable Court of Oyugis. As you promised, you were to use all available resources including donor money meant to support the vulnerable people in Oyugis to take me to court. You knew too well that I used the money meant for the beekeeping project for the intended purposes and that at no time did you raise any query regarding how the money was spent. Stage by stage I was reporting to you with pictures of the project progress and you were satisfied. When the Upendo Board invited me for a disciplinary meeting, the matter of misappropriation of funds did not arise and I remember my two witnesses asked about this and were answered by the members of the Upendo Board that THE MONEY WAS SPENT WELL and that the only issue was about the CONTRACT. How misappropriation came about, was your creation with your Kenyan friends who have consistently caused problems from the Amani CCDP time advancing their personal interests whenever they see money from Amani UK.Prior to the Honey Project, two motorbikes, a desktop computer, and a printer all budgeted and requested for by Imani CDO were converted to be Upendo properties by Leonard Odongo and William Dondi. In fact, one of the motorbikes, Imani CDO was to sell its old motorbikes and we requested Amani UK to top up in order for us to buy a new motorbike. I was the activity owner of the motorbike. After selling the old motorbike, I was told to deposit the money in the activity account which I did thinking that I was to be given a cheque to buy the motorbike. To my surprise when I went to pick up the cheque from William, I was told that the cheque had already been deposited with the motorbike dealer and that I should wait for the motorbike. Was this done by design to take over the assets of Imani CDO? The answer is yes and this is what you and your collaborators in Kenya wanted with the Honey Project which Imani CDO started even before the Upendo Foundation was founded. The Imani CDO bank account which you ordered taken and run by Upendo is another example of the micromanagement done by you and your friends Leonard Odongo and self-proclaimed Pastor, Vitalis Otieno. I hope you can recall the COMPASSION International Project meant for orphans and vulnerable children of Imani CDO taken by the fake pastor to the Redeemed Church. Leonard Odongo also ordered for the takeover of 20 plastic chairs belonging to Imani CDO to Upendo. What about Kirongo Project, are all assets in Kirongo properties of Upendo including land? If you think what you were doing to Imani CDO was right then try it in Kirongo this time round. I don’t know if you know that, when Peter Manyala, the then Manager for Kirongo was murdered in cold blood, some of your friends in Kenya and currently working in Upendo were suspects and therefore were grilled by police for two days. To date, we do not know the killers of Peter Manyala, but the reason was because of scrambling for Amani UK money. You are well aware of what happened to Amani CCDP.Amani UK should wake up and should not allow people in Kenya who are selfish to mislead it. For clarity, Upendo should hand over assets belonging to Imani CDO peacefully before Imani CDO takes any legal action. We have been friends before and I would not wish to go the far you took me. But when circumstances dictate, I will have to. Please, Peter, it is up to you to choose.RegardsKennedy.Saturday, July 31, 2021PeterThank you for your response to my mail which did not touch much on the content of my email. I was not able to reply your mail as I had more important things to attend to, one of them being my sick father who was to go for an operation.I wish to respond to your desperate letter as below:I am glad you can now tell the truth that I used beekeeping money well and you now want the hives taken to Upendo. Which means you concur with the Court judgment even if you instructed William to hoard receipts I submitted to account for the funds received. You even forgot that you developed a policy which was being implemented “the activity accounting” and you insisted had to be followed which was accounting for the money given before another is given. How then could I have used 623,000 without any receipts or did William conspire with me?The funds benefited many farmers and this you are well aware of having seen the pictures of farmers signing contract with Imani CDO. The former staff of Imani CDO who I could not bring all the beneficiaries to court to testify but to pick one or two and you were not to decide who I should pick just like I could not tell you who to be a witness for Upendo, so stop your usual dictatorship. If you doubt the judgment, then appeal is your right. Please do not cheat us that Upendo will decide, you are the one deciding. In your 2019 visit to Kenya, you personally went very early in the morning to see Upendo lawyer to frame the case against me.It is fodder for me to read from you that hives were made and given to farmers, then why was the need of the court case you filed?You suggested that farmers sign contract with Upendo which was not agreed on by Imani CDO board. A suggestion is not a resolution. I demanded a meeting between Upendo and Imani boards to resolve this, but your friend refused that he could meet Imani CDO Board Chairlady and as usual, you have to obey orders of your friend.You cannot gag me, I have the freedom of expression. If you think your threats will silence me then you are mistaken.In 2018 during your usual visit to Kenya, Imani CDO Board demanded to meet you which happened and they raised a number of issues with you concerning relationship between Upendo and Imani CDO, one of them being Compassion International funding and a host of other financial issues including Imani CDO bank account. Later you went to your Kenyan friend whom you fear so much that you cannot go against his word even if he is misleading you hence not attending to Imani CDO Board concerns.Just as Kirongo received and continue to receive funds through Upendo for Ted Rayner Clinic, School, Poultry Project, so did Imani CDO with honey Project. is Ted Rayner Clinic for example an asset of Upendo? If you think so then dare it.The trustees of Amani UK need to learn from the past and be careful. If you are misled by one Kenyan friend and you also mislead the Trustees, the Trustees will unknowingly make decisions which are dangerous. This is why I chose to write to them so that they compare information. They may not agree with me now because you influence them, but in future they may see the realities. Sponsors also need to know the truth and make the best judgment. If anything, you have also written to many Imani CDO friends telling them not to fund Imani CDO.Finally, Peter, I cannot yield to your threats, I am not such kind a person who is easily threatened even if you point a gun on my head. You go ahead and let us meet in court and this time I will demand that you personally attend.Kennedy.1st August 2021Dear all,Please find the forwarded response to Peter Fish email to me. I am doing this to make you fully aware of things that are happening in the Organization that you fund because if I don’t you will not be told. You can read in between the lines and make your own decision. But it is said “where there is smoke, there is fire”. Please do not burry heads into the sand by relying on Peter only. He is cheated by one or two individuals in Kenya and if you rely on his information alone, you may not get facts right. I am whistleblowing.Kennedy

9. The test to determine whether a statement is defamatory is objective, which depends on what a reasonable person reading the statement would perceive. Halsbury’s Laws of England 4th Edition Volume 28 states on Page 23 states:In deciding whether or not a statement is defamatory, the court must first consider what meaning the words would convey to the ordinary man. Having determined the meaning, the test is whether, under the circumstances in which the words were published, a reasonable man to whom the publication was made would be likely to understand them in a defamatory sense.

10. This test was echoed by the Eastern African Court of Appeal in the case of Onama vs. Uganda Argus Ltd [1969] EA 92. The Court stated:In deciding whether the words are defamatory, the test is what the words could reasonably be regarded as meaning, not only to general public, but also to all those who have greater or special knowledge of the subject matter…

11. After reading the email, dated the 28th of July 2021 one can discern the following issues:a)The second plaintiff has accused the defendant of misusing funds;b)The defendant was responding to these accusations and seemed quite upset;c)The defendant claimed that Amani UK should be aware of how their donated funds were being used.

12. In an email dated the 31st of July 2021, the defendant discussed the issue of the beehives, stating that they were properly procured and that the second plaintiff had confirmed this. The defendant also emphasized the importance of telling the truth to the donors and sponsors.

13. The email sent on the 1st day of August 2021, the defendant forwarded his responses to the second plaintiff to their donors and project sponsors.

14. It is unlikely that anyone who reads the emails in issue would perceive them as defamatory. Instead, they are more likely to view them as a reflection of the ongoing conflict between the parties regarding the use and control of donor funds. Those with specific knowledge of the situation, such as donors and sponsors, would probably be aware that there are issues that require attention. In reality, there were indeed problems that needed to be resolved.

15. The defendant conveyed the disputed publications to the Upendo organization and Imani CDO's donors and sponsors. In my considered opinion, this information was deemed necessary and appropriate for them to receive.

16. The next question is whether the publication was malicious. in the case of Phinehas Nyagah vs. Gitobu Imanyara 2009[2013] eKLR, Odunga J (as he then was) observed as follows:Thirdly, the words must be malicious. 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 fair 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.

17. In my view, the comment made was fair, particularly when considering the past legal dispute between the second plaintiff and the defendant, which involved the same matters that were addressed in the criticized emails. Additionally, I do not perceive any malicious intent in the statements or their publication. The tone may have been unfriendly, but it cannot be considered to be actuated by malice; it was justified anger.

18. From the foregoing analysis of the evidence on record, I find that the plaintiffs have failed to prove their case. Their claim is dismissed with costs. Right of appeal 30 days.

DELIVERED AND SIGNED AT HOMA BAY THIS 7TH DAY OF NOVEMBER 2023KIARIE WAWERU KIARIEJUDGE