|Civil Case 542 of 2007
|KOIGI WA WAMWERE v STANDARD LIMITED & BENSON RIUNGU
|08 Apr 2011
|High Court at Nairobi (Milimani Law Courts)
|Hatari Peter George Waweru
|KOIGI WA WAMWERE v STANDARD LIMITED & another  eKLR
|The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information
IN THE HIGH COURT OF KENYA
CIVIL CASE NO. 542 OF 2007
KOIGI WA WAMWERE.................................................................................................................PLAINTIFF
V E R S U S
1. THE STANDARD LIMITED
2. BENSON RIUNGU.............................................................................................................DEFENDANTS
The words pleaded by the Plaintiff to be defamatory of him are to be found in paragraph 16 of the plaint. Those words were published in the Crazy Monday magazine of 23rd April, 2007 published by the 1st Defendant. The words were written by the 2nd Defendant.
The Plaintiff has also pleaded that the publication was actuated by malice and recklessness. Particulars thereof are given in paragraph 19 of the plaint.
The Defendants entered appearance and filed a statement of defence dated 25th July, 2007.
The Defendants further denied that the words complained of were, in their ordinary and natural meaning, meant, or could be construed to have meant or imply, or that the same were capable of being understood to mean or to imply, any of the meanings defamatory of the Plaintiff pleaded in paragraph 18 of the plaint. The malice pleaded in paragraph 19 of the plaint was also denied.
The Defendants have pleaded in the alternative and without prejudice that the words complained of were fair comment made in good faith and without malice upon a matter of public interest, in so far as the same concerned the public actions and political pronouncements of the Plaintiff who was a Member of Parliament of Kenya. Particulars were given in paragraph 14 of the defence.
The Defendants therefore seek dismissal of the Plaintiff’s claim.
At the start of the hearing of the case, the Plaintiff’s bundle of documents as per his list of documents dated 13th September, 2007 was by consent admitted in evidence and marked as Exhibit P1. The Defendants had no documents to produce.
I have considered the testimony of the Plaintiff. I have also considered the written submissions, including the cases cited.
I have carefully read the words complained of. It is unfortunately necessary to reproduce in this judgment the full article as published in order to appreciate its meaning and import:-
“KOIGI REDISCOVERS HIS CULTURAL ROOTS
That would save the nation the occasional drivel spewed out by the Information assistant minister. He seems to have taken his job rather literally judging by his apparent conviction that his docket entails assailing public ears with his weird opinion on a hotchpotch of issues.
But it is with the Mungiki thing that Koigi crossed the line by mile. For a sanctimonious political ideologue, it is shamelessly hypocritical for the Mp to mask known loyalties to a killer gang with socialist postulations intended to mitigate its dastardly crimes.
The arrest of “innocent” Mungiki suspects is particularly annoying to Koigi considering the potential consequences. Like Maina Njenga, there is a real threat one can get ‘saved’. Should you be sufficiently ‘touched’, you can even become a pastor like Ndura Waruinge.
He used to wear lengthy dreadlocks he claimed were his symbolic yardstick of President Moi’s and Kanu’s years of repression. Then he was caught on camera relishing his tobacco with undisguised Mungiki adherents in the spirit of true comradeship.
His counsel to Wangui on her love life might be sound. But discretion is advised in the case of Koigi’s brief for his Mungiki buddies. It is an electoral year after all.”
To begin with, the article by its wording and tenor is highly abusive of the Plaintiff. Secondly, the article accuses him, then a Member of Parliament and an assistant minister in the government, of being a Mungiki sympathiser. The article says in part that he had-
“.....For a sanctimonious political ideologue, it is shamelessly hypocritical for the MP to mask known loyalties to a killer gang with socialist postulations intended to mitigate its dastardly crimes.”
“The arrest of “innocent” Mungiki suspects is particularly annoying to Koigi considering the potential consequences.......”
“....The MP scarcely conceals his disdain for mainstream faiths. In fact, he has previously, by word and deed, manifested closer ties to Mungiki than to any other religion.
The Defendants did not bother to tender evidence to prove the particulars pleaded of the Plaintiff’s “actions”and“political pronouncements” upon which they made “fair comment” in the article.
As already pointed out, alongside the article was a picture of the Plaintiff when he used to wear dreadlocks. There cannot be any doubt that the picture was used in order to add weight to the unsubstantiated claims of the Plaintiff’s sympathies and links to Mungiki.
I have no hesitation at all in holding that the words complained of were highly defamatory of the Plaintiff, both in their natural and ordinary meanings, and also by innuendo. On liability, the Plaintiff has proved his case on a balance of probabilities.
As is well known, damages in defamation are at large. In other words, they are at the discretion of the judge.
The Plaintiff has sought both general damages as well as punitive/ exemplary damages.
In assessing compensatory damages, the court will take into account the distress, hurt and humiliation which the defamatory publication has caused the plaintiff. The court will consider the gravity of the libel. The more closely it touches the Plaintiff’s personal integrity, professional reputation, honour, courage, loyalty and the core attributes of his personality, the more serious the libel is likely to be. See the case of Johns –vs- MGN Limited  All E.R 34. It was further stated in this case as follows:-
“The extent of publication is also very relevant; a libel published to millions has a greater potential to cause damage than a libel published to a handful of people. A successful plaintiff may properly look to an award of damages to vindicate his reputation; but the significance of this is much greater in a case where the defendant asserts the truth of the libel and refuses any retraction or apology than in a case where the defendant acknowledges the falsity of what was published and publicly expresses regret that the libellous publication took place. It is well established that compensatory damages may and should compensate for additional injury caused to the Plaintiff’s feelings by the defendant’s conduct of the action, as when he persists in an unfounded assertionthat the publication was true, or refuses to apologise, or cross-examines the plaintiff in a wounding or insulting way.”
The Defendants in the present case plead that they published an apology. The Plaintiff has pleaded that this apology was not sincere and was actually a mockery of him.
“Crazy Monday.....stands by last week’s edition as a fair comment based on the Subukia MP’s public utterances and conduct. We insist that Koigi has been caught on camera sniffing tobacco in the company of individuals whose comportment is not dissimilar to of the average Mungiki adherent.”
The so-called apology is the following words-
This ties up with the issue of malice. The cynical, mocking so called apology is a further indication of the Defendant’s malice towards the Plaintiff. I have already mentioned the tenor of the original article. The language was impolite and abusive to the Plaintiff. The article appears calculated to harm the Plaintiff as much as possible, especially in the then upcoming general elections. There were several references to those general elections in the article.
I have considered the Plaintiff’s place in society. He is a well known politician. He has been a Member of Parliament for several terms and also at some point an assistant minister in government. There is no doubt that he is well known internationally and locally. He has been from time to time a vocal panellist in radio and television talk shows.
The Plaintiff is also a renowned author of books and articles. He has received various awards and honours in recognition of his work in human rights issues. In brief, the Plaintiff is no doubt a man of good standing, reputation and character.
I mentioned that the Plaintiff called one witness. He was Michael Maina Kamami. Apparently he was called to testify as to what harm the defamation did to the Plaintiff’s bid for re-election as Member of Parliament for Subukia Constituency. For one thing, he did not believe that the article comprising the defamation was referring to the Koigi Wamwere that he knew. It appears that the article did not change his view of the Plaintiff’s character and reputation.
I am not satisfied that the words complained of led or contributed to the Plaintiff’s defeat in his bid for re-election as the Member of Parliament for Subukia. However, this does not take away anything from the very grave nature of the defamation committed against him by the Defendants.
Doing the best I can, I will award the Plaintiff compensatory damages of KShs. 3 million. I will also award punitive or exemplary damages of KShs. 500,000/=. That makes a global award of KShs. 3.5 million. There will be judgment for the Plaintiff for that sum which will attract interest at court rates from the date of judgment until payment in full.
There is also the order for apology sought by the Plaintiff. As already noted, the “apology” published by the Defendants was in fact not an apology but a cynical insult. I therefore find that the order for apology sought is merited. I hereby grant such order as sought in the plaint.
There has been delay in the preparation and delivery of this judgment. The same was occasioned by my poor state of health these last few years, exacerbated as it was by my transfer to Machakos, a very, very busy single-judge station, in early 2010. The delay is regretted.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 8th DAY OF APRIL, 2011.