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Nation Media Group & another v Maina (Civil Appeal 3 of 2020) [2022] KEHC 16168 (KLR) (8 December 2022) (Judgment)
Neutral citation:
[2022] KEHC 16168 (KLR)
Republic of Kenya
Civil Appeal 3 of 2020
FN Muchemi, J
December 8, 2022
Between
The Nation Media Group
1st Appellant
Nicholus Komu
2nd Appellant
and
Valentine Mugure Maina
Respondent
(Being an Appeal from the Judgement and Decree of Hon. W. Kagendo CM delivered on 24th May 2019 in Nyeri CMCC No. 418 of 2016)
Judgment
Brief Facts
1.This appeal arises from the judgment of Hon. W. Kagendo CM, in Chief Magistrate Court Civil Suit No. 418 of 2016 delivered on 24th May 2019. The respondent instituted a suit seeking general, exemplary and aggravated damages on the allegations that the appellants published a libellous article concerning the respondent in the newspaper Taifa Leo on 10th June 2015.
2.The honourable magistrate found that the articles were defamatory of the respondent and awarded her general, exemplary and aggravated damages of Kshs. 4,000,000/-.
3.Dissatisfied with the court’s decision, the appellants lodged the instant appeal citing 7 grounds of appeal in their Memorandum of Appeal which can be summarized as follows:-a.The learned trial magistrate erred both in law and in fact in finding that the articles published by the appellants were defamatory of the respondent notwithstanding the evidence tendered to the effect that the articles were a fair and accurate reproduction of the complaint made to the police and the subsequent criminal proceedings instituted in Court against the respondent in Criminal Case No. 546 of 2015, Republic vs Valentine Mugure;b.The learned magistrate erred in failing to consider the appellants’ defence of justification and absolute privilege within the meaning of Sections 6 and 8 of the Defamation Act, Chapter 36 Laws of Kenya.c.The learned trial magistrate erred and misguided herself in giving an award of damages that was manifestly excessive in the circumstances in total disregard of the appellants’ submissions and authorities.
4.By consent, parties put in written submissions to dispose of the appeal.
Appellant’s Submissions
5.The appellants submit that the trial court in determining whether the impugned publications were defamatory was required to determine whether the respondent had proved that the publication was false, it lowered or injured the respondent’s reputation in the eyes of the reasonable right thinking members of the society and that the reporting was actuated by malice. To support their contentions the appellants rely on the case of Wycliffe A. Swanya vs Toyota East Africa Ltd & Another [2009] eKLR and the book by Gatlely on Libel and Slander 6th Edition at page 6. The appellants argue that in light of the principles set out, the trial court’s finding that the impugned publication was false and defamatory of the respondent was not supported by evidence.
6.The appellants argue that to the contrary, the publications were an accurate reproduction of an incident that occurred at the respondent’s home on 10th June 2015 which fact was admitted and confirmed by all the witnesses that testified. PW1 and PW2 confirmed in cross examination that they had been cohabiting as husband and wife at Gamerock Estate in Nyeri and on the morning of 10th June 2015 they had a domestic fight in which PW2 was injured and admitted in Nyeri PGH Hospital. They further confirmed that following the incident, PW1 was arraigned and charged in Nyeri Court in Criminal Case No. 546/2016 on charges of assault by causing actual bodily harm. Further, DW2, a medical superintendent in Nyeri General Hospital testified that PW2 was admitted in the said hospital on 10th June 2015 having sustained several injuries on the perennial area of his genitals and produced a medical report dated 24th June 2015 confirming the injuries sustained by PW2. Based on the facts, the trial court erred in failing to analyse the contents of the impugned publications which reiterated the factual witness account. The applicants contend that the publications were based on the report made by the police who were involved in the arrest as reported verbatim, the evidence tendered by the respondent and PW2 confirming the incident and the injuries inflicted on the victim and the testimony given by DW2, the doctor who confirmed that the injuries sustained by the victim touched on his private parts. As such, the publication was factually true and there was no basis for the finding by the trial court that the article was false or that the appellants knew the contents to be false.
7.In respect of the article dated 26th June 2015 reported in the Daily Nation Newspaper, titled “Woman in Assault case given bail” the appellants submit that the publication was factual as the appellants reported that a Nyeri court had ordered a woman alleged to have chopped off her husband’s private parts to pay a bond of Kshs. 50,000/- or cash bail of Kshs. 30,000/- for release. This report constitutes a report on court proceedings which is absolutely privileged. Furthermore, in the report, the appellants state that they reiterated the factual incident between the respondent and PW2 as confirmed by the witnesses in the trial. In light of the above, the appellants submit that they have demonstrated that the publications were substantially true and that they were reporting on an incident that was confirmed to have occurred. The applicants further contend that they have demonstrated that the publications were purely a means of dissemination of a factual incident which as admitted by the respondent did occur as reported by the police. The appellant submit that they are justified in making the reports and rely on the cases of Paul Owuor vs Star Publication Limited [2020] eKLR and Stephen Thuo Muchina vs Wainaina Kiganya & 2 Others [2012] eKLR to support their contentions.
8.The appellants submit that they are entitled to rely on the defence of justification and make reference to the cases of El Hoare and Others vs Eric Jessop [1965] 1 EA 218 (CAN); Nagenda vs Editor of the Monitor and Another [1990-1994] 1 EA 435 (SCU) and Jacob Mwanto Wangora vs Hezron Mwando Kirorio [2017] eKLR and submit that on the plea of justification, it is not necessary to prove that the statement is true as long as what was reported was substantially factual.
9.The appellant argue that the respondent did not produce evidence to support the finding that the publication lowered her reputation. The appellants contend that the test to be used is that of an objective reasonable person reading the impugned article as one cannot be defamed to themselves. Thus the respondent ought to have called witnesses to testify and satisfy the court that the publication was indeed defamatory of her reputation. To support their contentions the appellant rely on the cases of Miguna vs Standard Group Limited & 4 Others [2016] eKLR; Stephen Thuo Muchina vs Wainaina Kiganya & 2 Others [2012] eKLR and Daniel Onchieku vs The Standard Limited & Another [2018] eKLR.
10.The appellants contend that the respondent did not call independent and objective witnesses to testify that after reading the publication they perceived her as a person of lower moral standing or reputation. Further, the respondent and PW2 having been parties to the incident cannot be deemed in law to be reasonable and objective witnesses to testify as to the respondent’s reputation. Consequently, the finding by the trial court that the publication defamatory of the respondent’s reputation had no factual or legal basis.
11.The appellants submit that in making the publication, there was no evidence of malice, ill will or spite and contend that it was simply doing a reporting in the exercise of a general duty to inform the public on a subject that did occur. The appellants further submit that there was no evidence of actual or implied malice in the words used in the reporting and further that the language used in the impugned publication was not disproportionate to the facts as admitted by the respondent and the witnesses in the case. Further, the appellants argue that the nature and extent of the injuries were confirmed by DW2 and therefore the report was factual.
12.The appellants rely on Articles 33, 34 and 35 of the Constitution and submit that they have a right to freedom of expression, media and right to access information. Further, the appellants argue that Section 7 of the Defamation Act provides that publications made in newspaper reporting is privileged unless it is proved to be made with malice.
13.The appellants further submit that there are instances where communication by the media to the public is more important than protection one’s reputation as long as the communication was made without any malice. The appellants rely on the decision of Stephen Thuo Muchina vs Wainaina Kiganya & 2 Others [2012] eKLR and submit that the reporting was made at a time when the issue of women assaulting their husbands was a trending topic countrywide and particularly in Nyeri County and therefore they state that this was a matter of public interest. As such, the appellants submit that they were merely discharging their constitutional duty to inform the public in a genuine and bonafide belief that the contents of the publications were true. Therefore, the report enjoyed qualified privilege and in the absence of any malice in its reporting, the appellants argue that there was no basis for the finding of the trial court that the same was defamatory.
14.The appellants further contend that the report in the Daily Nation dated 26th June 2015 which related to a report on court proceedings when the respondent was granted bail. As such, the said report was absolutely privileged within the meaning of Section 6 of the Defamation Act.
15.The appellants submit that the award on damages was made in error as the respondent did not satisfy the ingredients of defamation to warrant an award on damages. Without prejudice to the foregoing, the appellants submit that even if the court were to find that the respondent was entitled to an award on damages, the amount awarded by the trial court was excessively high and ought to be set aside. To support their contention, the appellant make reference to the case of Johnson Evan Gicheru vs Andrew Morton & Another C.A No. 314 of 2000.
16.The appellant thus rely on the cases of Jacob Kipngetich Katonon vs Nation Media Group Limited [2017] eKLR; Stephen Onyando vs Zachary Onsongo Moseti [2017] eKLR and DDO & Another vs East Africa Magazine Limited & 2 Others [2020] eKLR and submit that the nominal award of Kshs. 200,000/- is sufficient to award the respondent.
17.The appellants argue that the award of Kshs. 1,000,000/- on exemplary damages was not justified as these damages are intended to punish a party for the wilful commission of a tort.
18.In the instant case, the appellants contend that the respondent did not demonstrate that they were reckless and/or negligent in publishing the impugned publication or that they deliberately opted to hide the truth and that their conduct is deserving of punishment. To support their contentions they rely on the cases of The Nairobi star Publication Limited vs Elizabeth Atieno Oyoo [2018] eKLR and Stephen Thuo Muchina vs Wainaina Kiganya & 2 Others [2012] eKLR.
19.The appellants contend that their witness DW1, demonstrated that the publication was based on a report by the Senior Police Officer Mr. Rotich who when interviewed confirmed that he had confirmed the incident. Further DW1 testified that he also interviewed the respondent’s neighbours who confirmed having witnesses the incident. This position was corroborated by the medical doctor, DW2 who confirmed that indeed the victim had been injured on his private parts. The appellants further contend that the respondent did not rebut and or dispute the statements made by the police and the neighbours.
20.The appellants further argue that they have demonstrated that the decision to publish the impugned publication was informed by the greater public interests and such conduct is not the kind that attracts exemplary damages. As such, the appellants argue that without proving malice, and the deliberate intent to defame the respondent for the purposes of making a profit, the trial court had no factual basis for awarding exemplary damages.
21.On the issue of aggravated damages, the appellants submit that aggravated damages are compensatory in nature and are awarded where the conduct of the offending party is so outrageous, oppressive, deceitful or so high handed that it increases the injuries suffered. The appellants submit that the respondent did not demonstrate that the appellants’ conduct was so outrageous, oppressive, deceitful or so high handed to warrant the award on aggravated damages in the sum of Kshs. 1,000,000/-. The appellants rely on the case of Stephen Thuo Muchina vs Wainaina Kiganya & 2 Others [2012] eKLR and submit that the grant of aggravated damages was not warranted.
The Respondent’s Submissions
22.The respondent relies on her submissions tendered in the trial court and further reiterates the decisions in Louchensky vs Times Newspapers Ltd (2001) 4 ALL ER 115 and G. K. R. Karate (UK) Ltd vs Yorkshire Post Newspapers (2000) ALL ER 931 and submits that falsity of a publication nullifies any defence of privilege.
23.On the issue of quantum, the respondent submits that the damages awarded are within previous bond of damages in similar claims by the courts.
Issue for determination
24.The main issue for determination is whether the appeal has merit.
The Law
25.Being a first Appeal, the court relies on a number of principles as set out in Selle and Another vs Associated Motor Boat Company Ltd & Others [1968] 1EA 123:
26.It was also held in Mwangi vs Wambugu [1984] KLR 453 that an appellate court will not normally interfere with a finding of fact by the trial court unless such finding is based on no evidence or on a misapprehension of the evidence; or where the court has clearly failed on some material point to take into account of particular circumstances or probabilities material to an estimate of the evidence.
27.Dealing with the same point, the Court of Appeal in Kiruga vs Kiruga & Another [1988] KLR 348, observed that:-
28.Therefore this Court is under a duty to delve at some length into factual details and revisit the facts as presented in the trial court, analyse the same, evaluate it and arrive at its own independent conclusions, but always remembering and giving allowance for it, that the trial court had the advantage of hearing the parties.
Whether the appeal has merit.
29.The Court of Appeal in S. M. W vs Z. W. M [2015] eKLR defined a defamatory statement as follows:-A statement is defamatory of the person of whom it is published if it tends to lower him/her in the estimation of the right thinking members of the society generally or if it exposes him/her to public hatred, contempt or ridicule or if it causes him to be shunned or avoided.
30.The ingredients of what constitutes defamation were set out by the Court of Appeal in Musikari Kombo vs Royal Media Services Limited [2018] eKLR as:-It follows that a claimant in a defamation suit ought to principally establish in no particular order that:-a.The existence of a defamatory statement;b.The defendant has published or caused the publication of the defamatory statement;c.The publication refers to the claimant.
31.From the evidence adduced, it is not in dispute that the appellants published the article in their newspaper, Taifa Leo dated 10/6/2015. Further, the publication clearly referred to the respondent by name and her picture was placed alongside the article. The publication was published on the first page with the headliner “Mke adaiwa kukata mume nyeti” and the said words were reiterated at page 2 of the newspaper with both parts headlining a substantial story thereunder and the respondent’s picture depicted alongside.
32.On the issue of whether the publication was defamatory, in the case of Gerald Mutuku vs Nation Media Group Ltd [2021] eKLR the court laid out that the test is an objective one which depends on what a reasonable person on reading the statement would perceive. Halsbury’s Laws of England 4th Edition Volume 28 states at page 23 thus: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.
33.The appellants argue that the publication in the Taifa Leo Newspaper and Daily Nation dated 10/6/2015 and 25/6/2015 were not false and defamatory but were factual. It was further argued that the contents of the articles were based on the report made by the police who arrested the respondent, the evidence tendered by the respondent and PW2 and the testimony given by DW2, the doctor who confirmed the injuries sustained by the victim. The respondent contends that the articles were defamatory as the said words published in their actual, clear and natural meaning meant and were understood by right thinking members of society as she had chopped off her husband’s private parts. She further argued that the facts were false because the appellants thereafter published an article in the Daily Nation dated 25/6/2015 with the correct details.
34.Having read the published words, assessed the evidence adduced by both the appellants and respondent and perused the judgment of the trial court, it is my considered view that an ordinary reading of the published article reveals that the words were defamatory. It is not in dispute that the respondent and her husband had an altercation on the morning of 10th June 2015 and that the respondent was arrested for assault. The respondent testified that she has an altercation with her husband and that she injured him on his upper thigh and on the shoulder. She further testified that none of the reporters interviewed her but the reporters went to the police station and took photographs of her. This is a fact that the appellants did not deny and in fact the appellant’s photograph of the respondent confirms that she was in the police station when the picture was taken. As such, it is evident that the appellants did not bother to verify the truth of the story. The respondent was present at the police station and the appellant’s reporter did not talk to her.
35.The elements of the tort of defamation are that the defamatory words must tend to lower the plaintiff’s reputation in the estimation of right minded persons. The respondent testified that she used to run a business hawking clothes in Nyeri town, but after the impugned article she lost all her customers forcing her to shut down her business. She further testified that her husband left her as he could not stand being associated with her and that her chances of getting remarried were nil as no right minded person could stand to be associated with her. PW2, the victim confirmed that he left the respondent as people were really talking about what had transpired and the pressure from people not to reconcile with the respondent. It is my considered view that the respondent demonstrated that the article injured her reputation, character and dignity and she was shunned and avoided by other persons.
36.Further, the words must be malicious. In the case of Joseph Njogu Kamunge vs Charles Muriuki Gachari [2016] eKLR the court held that:-Malicious here does not necessarily mean spite or ill will but there must be evidence of malice and lack of justifiable cause to utter the words complained of. Evidence showing the defendant knew the words were false or did not care to verify can be evidence of malice.
37.Applying the principles to the instant case, it is my considered view that the appellants knew the words were false as they published an article in the Daily Nation on 25/6/2015 giving the correct details of the incident. Further, the appellants took photographs of the respondent at the police station but they never bothered to verify the story. It is therefore my view that the respondent proved that the appellants were malicious in causing the publication.
38.On whether the defence of qualified privilege was available to the appellants, the essence of this defence is an attempt to balance two competing but vital interests in society, the individual’s right to have their character and reputation protected and safeguarded from false, unwarranted and malicious or scurrilous attacks on one hand, and the public’s right to know as exercised and fed by freedom of expression, which is an indispensable feature of a free and democratic society as well as a major tool for public accountability. This defence is entrenched under Section 7 of the Defamation Act.
39.In Reynolds vs Times Newspapers [1999] 4 ALL ER 609 the House of Lords set out a criterion determining whether a publication is subject to qualified privilege as follows:-Depending on the circumstances, the matters to be taken into account include the following. The comments are illustrative only:-a.The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true.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. Some informants have direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.d.The steps taken to verify the information.e.The status of the information. The allegation may already have been the subject of an investigation which commands respect.f.The urgency of the matter. News is often a perishable commodity.g.Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed.h.Whether the article contained the gist of the plaintiff’s side of the story.i.The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statement of fact.j.The circumstances of the publication including the timing.
40.In the present case, the 2nd appellant testified that his source had been the Officer Commanding Police Division (OCPD) Mr. Rotich and the plaintiff’s neighbours. The witness further testified that they went to the hospital but could not see the victim and the doctors told him that they were treating the victim and thus did not engage him. Notably, the 2nd appellant confirms that he published the article without seeing any medical report, the OB extract or even talking to the respondent. This is despite the fact that the 2nd appellant managed to go to the police station and take the respondent’s photo which they published alongside their story. The 1st appellant as a media house in my view owes a duty to the plaintiff and other Kenyan citizens to make accurate reports which must be verified before publication. The appellants failed to verify the information given to them before publication.
41.The other issue is whether the publication was true or false. There was no evidence from the appellants that the article was correct. From the respondent’s evidence and from the medical report, the victim was injured on the upper thigh and on the head. This was contrary to the publication that alleged that the respondent was alleged to have chopped off the victim’s genitals. The learned magistrate established that the article was false and I similarly so find.
42.Furthermore, the appellants argue that they were reporting on a matter of public interest because at the time there were many cases of women assaulting men by cutting off their genitals particularly in Nyeri. I have carefully studied the court record and I am unable to trace any of the above guidelines in the defence offered by the appellants to bring their allegations within the purview of public interest. As stated, the appellants made no attempt to show that the 2nd appellant verified the truth of the allegations or whether any comment was sought from the respondent prior to publishing the allegations. As such, it is my considered view that the appellants failed to establish the defence of qualified privilege in their favour.
43.The respondent in her evidence said that she was divorced by her husband who was the victim and that the public understood the article to mean that she had chopped off the private parts of her spouse. There was a lot of talk on the respondent’s character that led to her husband walking away from her life. The husband testified to the effect that he could no longer stay with the respondent because of the things that their family and neighbours were saying about the respondent.
44.The respondent said that the article made people look down upon her and injured her reputation to an extent that she lost self-esteem and confidence. During cross examination, the respondent broke down into tears and sobs which was an expression of injury on her character and reputation.
45.The honourable magistrate found that the false article was defamatory and lowered the reputation of the respondent in society and that not even her friends and family wanted to be associated with her. In my view, this finding is supported by the evidence on record. The appellants were not able to prove that they were entitled to the defences available for defamation.
46.On the award of damages, the principles guiding an award of damages in an action for libel were stated in the case of Johnson Evan Gicheru vs Andrew Morton & Another [2005] eKLR where the Court of Appeal stated, adopting the guidelines given in Jones vs Pollard [1997] EMLR 233-242:-a.The 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.b.The 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.c.Matters tending to mitigate damages, such as publication of an apology.d.Matters tending to reduce damages.e.Vindication of the plaintiff’s reputation past and future
47.The appellants cited the cases of Jacob Kipngetich Katonon vs Nation Media Group Limited [2017] eKLR and submitted that the respondent ought to be awarded Kshs. 200,000/- as general damages. The appellants argued that the award on general damages ought to have been nominal and should not have exceeded a sum of Kshs. 200,000/-. The respondent cited the cases of John Evans Gicheru vs Andrew Morton & Another [2005] eKLR; John vs MGN Ltd (1996) 2 All ER 35 and KL vs Standard Ltd (2014) eKLR and submitted that an award of Kshs. 4,000,000/- would be sufficient considering the gravity of the libel publication which was very destructive towards her. The trial court awarded the respondent Kshs. 2,000,000/- as general damages. I have perused the court record and noted that the appellants did not issue an apology despite a formal demand to do so. The Nation and Taifa Newspapers are widely read in this country and the false story was widely spread to many people. The evidence of the victim was that he could not even think of reconciling with the respondent because her reputation which also affected him had been lowered in society that the two of them lived in. She claimed that being a young lady of twenty (20) years, her chances of re-marring were dim. As such, I find that circumstances that called for warning to the appellants not to repeat such act existed. The damages awarded were not excessive but adequate. In light of the foregoing and the factors stipulated in John Evans Gicheru vs Andrew Morton & Another (supra), it is my considered view that the award of Kshs. 2,000,000/- is sufficient.
48.The appellants further dispute the award on exemplary damages of Kshs. 1,000,000/-. It is submitted that they were not reckless or negligent in publishing the impugned publication and thus not deserving of punishment. The trial court in awarding exemplary damages relied on the case of Memphis Community School District vs Stachura 477 US 299 and stated that the aim of exemplary damages was to punish the defendant for reprehensible conduct and to deter him and others from engaging in similar conduct. As such, it is my considered view that the award of Kshs. 1,000,000/- is sufficient.
49.The appellants oppose the award of aggravated damages and submit that the respondent is not deserving of the award arguing that no evidence was adduced to show that their conduct was so outrageous. The trial court in awarding these damages, relied on the case of John vs MG Limited [1997] QB 586 and took into account the extent of the publication, which in this case is a newspaper published to millions of people which has a greater potential to cause damage than a libel published to a handful of people.
50.It is my considered view that the appellants have not shown that in awarding damages, the trial court took into account wrong principles of law. I am of the opinion that the trial court assessed the damages and gave an award that was consistent with comparable awards made and hence does not need interference by this court.
Conclusion
51.Having found that the respondent proved her case to the standards required in the tenets discussed herein, I find that the magistrate did not err either in law or in fact in her findings. The damages awarded in the respective heads were not excessive in my considered view.
52.Consequently, I find no merit in this appeal and I hereby dismiss it with costs to the respondent.
53.It is hereby so ordered.
DATED AND SIGNED AT NYERI THIS 8TH DAY OF DECEMBER, 2022.F. MUCHEMIJUDGEJudgement delivered through video link this 8th day of December, 2022
