Amadi v Baraza Limited t/a Kenya Television Network & 2 others [2023] KEHC 19370 (KLR)
Full Case Text
Amadi v Baraza Limited t/a Kenya Television Network & 2 others (Civil Case 560 of 2007) [2023] KEHC 19370 (KLR) (Civ) (30 June 2023) (Judgment)
Neutral citation: [2023] KEHC 19370 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Civil
Civil Case 560 of 2007
AN Ongeri, J
June 30, 2023
Between
Pamela Charm Amadi
Plaintiff
and
Baraza Limited t/a Kenya Television Network
1st Defendant
Dr. Maxwell O. Okonji
2nd Defendant
Dr. Frank G. Njenga
3rd Defendant
Judgment
1. The plaintiff in this case Pamela Charm Amadi (hereafter referred to as the plaintiff) filed the plaint dated 27/11/2006 which she amended on 18/9/2019 against the three defendants Baraza Limited T/A as Kenya Television Network, Dr. Maxwell O. Okonji and Dr. Frank G. Njenga (hereafter referred to as the 1st, 2nd and 3rd defendants respectively).
2. The plaintiff is seeking the following remedies against the 1st, 2nd and 3rd defendants:i.A declaration that the petitioner’s constitutional rights and freedoms have been grossly violated and abused by the respondents.ii.A declaration that the petitioner is entitled to general, aggravated exemplary and punitive damages.iii.An order that the respondents do jointly and severally pay the said damages for libel, general damages, punitive damages, and exemplary damages.iv.An injunction restraining the defendants and each of them whether by themselves, their servants or agents or otherwise from further publishing or causing to be published the said or similar words defamatory to the plaintiff.v.Costs of this suit.vi.Interest on the above.vii.Such other or further relief as this honorable court may deem fit.
3. The plaintiff stated in her plaint that on the 3rd of May 1998(World Press Day), the three defendants falsely and maliciously published of and concerning the plaintiff on the electronic media namely Kenya Television Network (KTN) station, which at that time was the only other television station apart from the state owned Kenya Broadcasting Corporation, in its ‘Sunday Feature’ program the transcribed statement (in bold print) annexed hereto and marked PCA – 2.
4. This was despite the plaintiff and the employees of the 1st defendant agreeing on 2. 5.98, prior to the Sunday feature of 3. 5.98 that the plaintiff could be interviewed by one of the 1st defendants’ employees, on Gender Violence Against Women in Closed Institutions; in reference to a medical malpractice against her in 1990. This had been an ongoing public discussions as sparked by the Daily Nation expose in their newspaper edition of 14th April, 1998 and 15th April, 1998 and the plaintiff sought to share her experiences of wrongful confinement at Mathare Hospital by the 2nd defendant in 1990.
5. The 1st defendant did not consult her on anything thereafter, but to the utter shock of the plaintiff, the telecast of 2. 5.98 had the inclusion of two influential psychiatrists (the 2nd and 3rd defendants) – one who happened to be the culprit complained of by the plaintiff, and the other his business associate.
6. The telecast was edited to portray the plaintiff in bad light, to the extent that nowhere in the telecast were the specific complaints made in reference to the 2nd defendant was aired.
7. That the plaintiff’s narration had been edited to give the telecast an appearance of a discourse on schizophrenia, with strong and specific reference to the plaintiff as the subject of a case study.
8. To the best of her knowledge she had never been so labeled before not even in 1990, when she was 1st attended by the 2nd defendant, and it became apparent that she was being associated to an untrue and misleading information on public television, an action which violated her constitutional rights.
9. That this was an abuse of freedom and independence of electronic media, which the 1st defendant enjoyed under the constitution.
10. That the words and images used in the telecast (herein annexed as transcript PCA-2) were understood to refer to the plaintiff as the subject of the discussion.
11. That in their natural and ordinary meaning, the words in the said interview in context meant and was understood to meana.That the plaintiff was mentally unsoundb.The plaintiff was mentally ill.c.The plaintiff was a danger to society.d.The plaintiff was therefore a potentially dangerous criminal who’s physical and personal details, including her background and intellectual capacity had to be publicized, as a warning to the society.e.The plaintiff hence deserved to be persecuted as she could be criminally insane.f.Overall, the inferences amounted to overt, indelible incitements to social hatred, social violence and ultimately social destruction of the plaintiff by the gullible society unaware of the cover-up and smear campaign perpetrated by the 2nd defendant and aided by the 1st and 3rd defendants.
12. In addition to the words and their inferences in context, the 1st defendant took close-up photographs of the plaintiff from her toes to her head, even as she pleaded for privacy which was her inalienable constitutional right, against a backdrop of social stigmatization, that in effect only served to strip her off her physical privacy, by exposing her identification to the society, hence aggravating her already expressed social tribulations, hence violating that right to her privacy and inciting harm and vilification to her person.
13. To add insult to injury, the 1st defendant took further close ups showing the clearly discernable facial features of the plaintiff as she alluded to an unspecified complaint, thereby identifying her to the society, and placing her life at jeopardy, and causing loss of credibility with regards to any complaint she would henceforth make, whether touching on her personal security or otherwise. Her constitutional right to dignity and the right to have that dignity respected and protected was thereby seriously violated.
14. That in spite of immediate and fervent requests for a copy of the video interview of 2. 5.98 and the telecast of 3. 5.98 and its repeat of 4. 5.98, the 1st defendant without justification failed to provide the same; thereby violating the plaintiffs right to access the justice system.
15. Further in spite of immediate fervent pleas to desist, the 1st defendant ignored and continued to make copies and to prodcast the objectionable telecast; thereby the 1st defendant violated its constitutional obligation.
16. The 1st defendant without justification and permission of the plaintiff, proceeded to commercialize, the obnoxious/ objectionable prodcast, with a tape of the recording sold at ksh.5000/= in 1998, and at kshs.11,000/= per tape in 2003; and that the Sunday Special Feature on Stress/Madness was still in the 1st defendant’s library and up for sale.
17. The 1st defendant has continued selling the special feature tapes at higher costs each year, with the defendant abusing and defaming the plaintiff over phone, amongst colleagues and to strangers and the general public, whenever she has demanded a stop to its circulation and dissemination hence advocating hatred, vilification and harm to her person, hence grossly violating the 1st defendant’s right of expression vis a vis the plaintiff.
18. The 1st defendant went still further and caused to be aired on their television network, a soap titled ‘ASALI’ which revolved around a madwoman with split-to-the-minute identical physical features as the plaintiff, and which subjected the plaintiff to irreplaceable and irreparable social status damage. This soap having been produced in 2001 shows a deliberate, pre-meditated constitutional violation of the 1st defendant’s right of expression by its incitement to violence, hate speech and advocacy of hatred.
19. The 2nd defendant in turn, further circulated the odious information in letters, amongst them, a letter dated 20. 6.98 addressed to the Kenya Medical Association and its disciplinary organ – KMP&DP – wherein he re-iterated the diagnosis and labeling, as he additionally made untenable and atrocious claims that could not be substantiated, and that these were always not brought to the plaintiff’s attention.
20. That the 2nd defendant has since 2002 on diverse occasions, had the plaintiff unlawfully and without cause incarcerated, the most recent being in 2019; thus arbitrarily depriving the plaintiff constitutionally guaranteed freedom.
21. Further as a consequence, the 2nd defendant has without reasonable cause, subjected the plaintiff to physical and psychological torture in the guise of psychiatric intervention or discourse.
22. That contrary to tenets of good medical practice governing patient-doctor relationship, the 2nd defendant had no business to talk as the plaintiffs doctor during the interview. Good medical practice tenet absolves a doctor-patient relationship four years after last consultation, which with the plaintiff’s case was terminated in 1994.
23. The 3rd defendant, who had no doctor-patient relationship with the plaintiff in the past, in fact could not even identify her, resolutely ignored or refused to respond to demand letters on his conduct, gave wrong and misleading information on her to the KMP&DB investigatory committees, without engaging her officially, and even ran away from the plaintiff, when confronted by her in a parking lot.
24. Further that the 3rd defendant contravened the policy guidelines of the Medical Practitioners and Dentists Board which falls under the ministry of health, that disapproves issuances/utterances of tortuous statements as certificates on a citizen’s health.
25. That the conduct of the 3rd defendant is not only derogatory, but a disgrace to the reputation of the profession.
26. That all the 3 defendants knew or ought to have known that the telecast and their further conduct were of such a grave nature and unlawful, in that they were jointly and severally, deliberately fanning flames of social hatred and violence, that would ultimately lead to the plaintiff’s destruction, either physically or psychologically, by portraying the plaintiff as utterly demented.
27. That the name calling (such as ‘mogoroki’, mogoroku, rotten bin etc) during the prodcast were defamatory labels by the 3 defendants that inflicted negative, easy to remember labels on her that have stuck to this day.
28. That not only were all three defendants subjecting the plaintiff to both physical and psychological torture but also causing the plaintiff to be unjustly punished in a cruel inhuman and degrading manner while in confinement, hence grossly violating her constitutional right to freedom, security, state benefits and programs meant to alleviate vulnerable citizens, especially the affirmative programs.
29. That by the orchestrated actions of the three influential defendants, the plaintiff suffered widespread public social status damage, social amputation and continues to face ongoing ostracism, causing her extreme and unfathomable agony, misery and torture.
30. That the plaintiff, by the actions of the three defendants has been subjected to social hatred, social violence and persecution, near public lynching in several towns, wide range of physical and verbal assaults, ejections from towns, neighborhoods, estates, rental and private homes, and currently has no foothold whatsoever on any part of the Kenyan soil.
31. That since that 1st airing of the program in 1998, over a period of close to 20 years, be it in the village in Vihiga or the sprawling metropolitan cities, the plaintiff has suffered violations of her right to freedom and security of her person.
32. That the plaintiff has been traumatized by being hounded out of public facilities such as shelters for the homeless e.g the street families rehabilitation trust fund facilities at Kayole(in 2003), the internally displaced persons (IDPs) camps at Afraha stadium in Nakuru and at SCK St. Stephens Cathedral in Kisumu where she had camped two weeks each in February, 2008, at the height of the post-election violence.
33. Further that the plaintiff by the actions of the three defendants, just as with the government homeless shelter in Nairobi, and the IDP camps in Nakuru and Kisumu, the plaintiff has been discriminated against and denied any state assistance of benefits.
34. That as a result of their actions, the 3 defendants have caused the plaintiff to be stripped of state protection, media protection and humanitarian protection; and that instead all that the plaintiff has known is cruel post exposure trauma, inhumanity, social hatred, violence and severe social status damage which are all constitutional violations under chapter four of the constitution 2010.
35. That the 3 defendants by their utterances and actions totally and summarily caused to be closed to the plaintiff, all doors to opportunities for gainful employment, matrimonial bliss, familial harmony and social integration which is a violation of her fundamental inalienable human rights and freedoms.
36. That the telecast by the three defendants ascribed a non-legal status to the plaintiff, which gravely compromised her fundamental constitutional rights and freedoms to a point of annihilation, with her right to life even denied in a manner not reasonably justifiable in a democratic society.
37. That in addition and over the intervening period, the plaintiff has aggressively pursued justice, through pleas to the defendants, inter-party reconciliation with the 1st defendant, appealed the media council, the medical board, investigations by human rights commissions (KNRC, KNCHR, Amnesty international); sought legal representation from leading national legal-aid clinics like Public Law Institute, Covaw, Clarion, Law Society of Kenya, Commission on Administrative Justice, FIDA and Kituo Cha Sheria, and the Kenya Anti-Corruption Authority.
38. That when all in (30) above failed to yield results, that the plaintiff ultimately resolved to independent self-representation at the High court.
39. That because of the degree of negative media coverage, using intrusive and grave matter as mental illness, that the plaintiff suffered, she in the quest for justice left no stone unturned, that others after her may enjoy better and more civil treatment.
40. That by the malicious actions of the 3 defendants and under various sections of the constitution, a person of known unsound mind, as publicized by the three defendants, cannot sue or be sued, vote or be voted for, marry or be married, adopt or raise a child, own, manage, or inherit any property, sign any binding documents, e.g. employment contracts, cannot engage in any financial transaction or business, participate in any civil, social or religious leadership, vie for a parliamentary seat, cannot get papers to immigrate or work in a foreign land, contest in a beauty or likewise pageant/contest, etc.
41. Now the plaintiff seeks compensation from the respondents/ defendants for the defamation, which is constitutionally recognized under article 33(2) (b) (c ) (d) I, ii and 33(3) and its redress under article 35(1) and 35(2) which is an aggravated damage of the 1990.
42. Wrongful confinement and medical malpractice – a violation under article 29(a), (b), ( c), (d) – by the 2nd defendant, and their consequent perpetuation, and attendant cries, which include further wrongful confinements, repeated destructions of her property, arsons, assaults, batteries, rapes, attempted public lynching’s etc
43. The plaintiff demands aggravated and exemplary damages/compensation from the defendants to cater for the rest of her life in commensurate to anticipated damage relating to the lifelong prognosis as predicated by the defendants jointly and severally. They should be compelled to cater for my future life on earth so she asserts.
44. The plaintiff seeks specific damages for the production, distribution and sale of the Sunday Feature on Madness as a public health educational program’ wherein she was the subject- model, and thereafter, the destruction of all existing tapes, accompanied with an unequivocal apology in relevant media outlets.
45. The plaintiff demands punitive damages/compensation from the 3 defendants for their obstinate reluctance to addressing or resolving the complaint of wrongful confinement in 1990 and the amplified/aggravated consequences thereafter.
46. The plaintiff seeks restoration of her breached fundamental and constitutional rights as outlined in paragraph 29 & 30 and correction of her compromised inalienable legal status.
47. The 1st, 2nd and 3rd defendants filed their defences dated 22/1/2007 denying the plaintiff’s claim. The defendants pleaded that the suit is statute time barred.
48. The case proceeded by viva voce evidence. The plaintiff who testified as PW 1 called two witnesses PW 2 and PW 3.
49. The plaintiff adopted her written statement as her evidence in chief. In it she stated that a letter from the ministry of health Kisumu County Hospital dated 6/5/2019 ascertains her mental status to be of sound mind.
50. The plaintiff indicated that between 1982-1988 she was employed by Standard Bank PLC. Sometime in March 1988, the personnel manager Moses Thenge threw an insult at her and remarked that she should go to Mathare. What followed soon after was a letter to respond to insubordination charges and two days later he delivered her dismissal letter. She had no single warning letter and the Bank Union staff were conspicuously evasive whenever she visited their office thereafter.
51. The plaintiff avers that it is from her dismissal arose questions of her mental and physical health. She attended various interviews but was rejected at every turn. In March 1990 her aunt advised her to talk to a doctor in Mathare Hospital whom she knew well since she had worked under him. Thus, her first encounter with the 2nd defendant on 12/3/1990. Dr. Okonji remarked that there was nothing he could do for her since there was nothing wrong with her and therefore no file was opened.
52. The plaintiff indicated however that between 12th March and 16th March 1990 there were sneaky dealings between her aunt and the 2nd defendant. This caused her to write a letter dated 23/7/1990 inquiring what was happening and requesting that she be left alone but the defendant never responded to the letter. On March 1990 the 2nd defendant ordered for her involuntary confinement at the Mathare Hospital. She was later discharged 100 days later upon the unrelenting demands of Mr. Mitch Odero.
53. The plaintiff later enrolled at the Kenya Polytechnic where she undertook a diploma in Food Technology from 1992-1994. She thereafter enrolled with Kenya Management Assistance Programme (K-Map) where she facilitated as a business counselor in a small medium size food processing enterprise.
54. The plaintiffs dream of becoming a journalist still persisted and therefore she continued to hustle. It was during this time she met a journalist who authored an article on 14/4/1998 in particular the African Women and Child Feature Services (AWC) to who she recounted the experiences of unlawful confinement and talked at length with Journalists; Rosemary Okello, Juliana and ex- KTN staff Rose Lukalo.
55. Two weeks later she was contacted by Ms. Christine Nguku, an employee of the 1st defendant who sought to interview her. Over the phone, she discussed with the 1st defendant the parameters and probable reaction to the intended feature due to subject sensitivity. They agreed that nothing would be published without the consent of the plaintiff and the 1st defendant assured her the same.
56. The plaintiff was interviewed and on 3rd May 1998 at around 9:30 pm and on 4th May 1998 Morning News the 1st defendant televised a Sunday Special feature on Stress/Madness in which she was the subject in the 2nd part of the feature. In it the 2nd and 3rd defendants made atrocious psychiatric analysis of her in full public glare. The 2nd defendant stated that she suffers from schizophrenia and the 3rd defendant who had never treated her nodded and went on to state that the classical symptoms of the disorder was loss of insight.
57. The media coverage subjected her to social hatred, social violence, persecutory incidences such as public lynching in several towns, wide range of assaults physical and verbal, repeated malicious destruction of property, arson, ejections from towns, neighborhoods and estates.
58. The feature closed many opportunities for gainful employment, matrimonial bliss, familial harmony and social integration. She was exposed to contempt by right thinking members of society. As a result of the telecast she was confined at Nairobi (Meridian) Equator Hospital between 6/6/2002 and 19/6/2002 and at vihiga district hospital between 20/4/2008 and 24/4/2008
59. The plaintiff said in her oral evidence in court that her constitutional rights were violated by the defendants and she is seeking damages for defamation.
60. In cross examination, the plaintiff said she is a college student and further that she had not had a chance to live a normal life after she was manipulated to grant the interview with KTN.
61. She said she does not have the two clips because KTN refused to give her the tapes. She said she wrote a letter dated 7/5/1998 to protest.
62. She also said that before the KTN programme, she had never met Dr. Njenga and that he has never treated her.
63. She said Dr. Njenga did not refer to her by name but the inference was strong.
64. She said she was the representative of people suffering from Schizophrenia. She said her reputation is still at stake.
65. She also said she is complaining on the feature of Sunday Nation in 1998.
66. PW 2 Rose Kagure also adopted her statement as her evidence in chief. She stated in her written statement that she has known the plaintiff since 1997 as they met in church. They became good friends since they always prayed together and established a very strong bond. She has always known the plaintiff to be normal who never showed any signs of mental illness.
67. PW2 indicated that in 1998 at around 9:00 am as she was seated comfortably in the house watching Kenya Television Network, a program about the plaintiff aired. The next day when she went to church she did not see the plaintiff but she heard people discussing the video clip that the 1st defendant aired.
68. PW2 indicated that after a few months she met with the plaintiff around ambassador house bus stop and they exchange pleasantries. The plaintiff was in high spirits therefore PW2 decided not to ask about the video clip. The plaintiff however briefed her about the situation later when they met at church.
69. In cross examination PW 2 said the broadcast impacted the plaintiff negatively. She said she watched the broadcast which referred to the plaintiff as a lunatic and she was surprised to hear what was said about the plaintiff.
70. The plaintiff called PW 3 ROSELDAH OYIEL LWANGU who also adopted her witness statement dated 29/4/2019 in which she stated that she has known the plaintiff for over thirty years having worked at Standard Bank with her.
71. PW3 indicated that on 4th May 1998 during the morning hours while at her house a program was aired. She saw a lady who she recognized as the plaintiff. After watching the program she was shocked and wondered what was happening to the lady she had known since childhood. That in the 30 years that she knew the plaintiff she had never seen her with any mental issues whatsoever. PW3 wondered why the plaintiff was interviewed on the topic of madness and her being referred to as paranoid schizophrenia.
72. In her oral evidence in court PW 3 said she has known the plaintiff for over 30 years. She said she saw the clip on 4/5/1998 and the plaintiff’s picture on TV.
73. PW 3 said in cross-examination that the plaintiff is her friend. She was not aware that the plaintiff had been admitted at Mathare hospital.
74. The 3rd defendant testified as DW 1. He adopted his written statement as his evidence in chief.
75. In cross-examination, DW 1 said his duty is to educate the public on psychiatric issues. He said he does not recall this incident that happened 22 years ago.
76. The 1st defendant called one witness ATIENO MELVIN OWADE (DW 2) who also adopted her evidence in chief wherein she stated that she is the legal officer at Kenya Television Network. That indeed KTN ran a Sunday feature on mental health sometime in 1998 calling for public action and participation. The feature aired by the 1st defendant was informed by the need to educate and sensitize the public on the ills of mental health in the country.
77. In order to effectively and accurately fulfil its social obligation of educating and sensitizing the public on the subject the 1st defendant included and interviewed the 2nd and 3rd defendants in their capacities as duly qualified and licensed medical practitioners.
78. The 1st defendant also interviewed the plaintiff as a person of interest having been previously incarcerated at Mathare National Teaching and Referral Hospital which is considered the nation’s premier psychiatric hospital. DW2 indicated that the plaintiff agreed to be featured in the program that was aired by the 1st defendant. DW2 also stipulated that the feature was not defamatory towards the plaintiff. That further the said feature could not be produced for examination as it was lost on account of the raid conducted on the 1st defendant by persons considered to be government agents.
79. The parties filed written submissions as follows; the plaintiff submitted that the limitation of actions act does not prohibit filing of a defamation suit out of time. The plaintiff indicated that she has the capacity to file the suit herein as she is an adult and has the mental capacity to give an informed consent.
80. The plaintiff submitted that she filed the suit herein having produced the transcript of the Sunday feature as evidence. That in it the defendants defamed her by stating that she was a paranoid schizophrenia which in turn breached Article 27, 28, 29, 34(1), 35(1) and (2) of the Constitution of Kenya.
81. The 1st defendant submitted that whoever alleges must prove and the burden thereof must not shift until it is discharged. That it was therefore incumbent upon the plaintiff to prove the existence of the alleged defamatory broadcast by the defendants. That the plaintiff must not only prove that the alleged defamatory material was published i.e. communicated to a third party, but the said publication was communicated in such a manner that may confer the defamatory meaning.
82. The 1st respondent submitted that the failure to produce the alleged broadcast was extremely prejudicial to the defendants right to a fair trial which include the right to offer an appropriate defence and further robs the court of an opportunity to correctly judge whether the said publication constitutes a ground of action.
83. The 1st respondent submitted that if this court were to find that the alleged transcript produced by the plaintiff represents an accurate picture of the broadcast, section 106B of the Evidence Act provides that any electronic evidence must be accompanied by a certificate of electronic evidence. That in this case the plaintiff has failed to comply with the aforementioned provision. That further the transcript does not show any defamatory information published by the defendant aside from the plaintiff’s commentary in the transcript.
84. The 1st defendant submitted that it is settled law that a party claiming a violation of their constitutional rights must plead such alleged violation with precision and clarity. The plaintiff herein has failed to plead with sufficient clarity how the defendant violated her rights as alleged in the claim.
85. I have carefully considered the evidence adduced by the parties together with the written submissions.
86. I have also considered the fact that the plaintiff is appearing in person, with no legal training.
87. Nevertheless it is the duty of the plaintiff to prove her case. The standard of prove in civil case is on a balance of probabilities.
88. The issues for determination in this suit are as follows;i.Whether the plaintiff’s constitutional rights were violated by the Defendants.ii.Whether plaintiff agreed to be featured in the program that was aired by the 1st defendant and in the manner that it was aired.iii.Whether the plaintiff is entitled to the remedies she is seeking against the Defendants.
89. On the issue as towhether the plaintiff’s constitutional rights were violated by the Defendants, the plaintiff said the 1st Defendant told her that the interview wason Gender violence Against Women in Closed Institutions in reference to a medical malpractice against her in 1990, she said she was shocked that the telecast of 2. 5.98 had the inclusion of the 2nd and 3rd Defendants who are influential psychiatrists.
90. The 1st Defendant did not deny that theyinterviewed the plaintiff as a person of interest having been previously incarcerated at Mathare National Teaching and Referral Hospital which is considered the nation’s premier psychiatric hospital.
91. Although the video clip was not produced in this case, the plaintiff’s two witnesses pw2 and pw3 confirmed that they watched the interview where the plaintiff was featured. This evidence of the existence and airing of the feature was not controverted.
92. The 1st Defendant’s witness said that the said feature could not be produced for examination as it was lost on account of the raid conducted on the 1st defendant by persons considered to be government agents. It is the plaintiff’s contention that she had written asking for a copy of the same long before the raid and that her request was not honoured. This too was not controverted.
93. I find that the plaintiffs rights were violated by the 1st Defendant.
94. Article 31 protects the right of an individual not to have:(a)their person, home or property searched;(b)their possessions seized;(c)information relating to their family or private affairs unnecessarily required or revealed; or(d)the privacy of their communications infringed. (Emphasis added).
95. In the case of Kenya Human Rights Commission v Communications Authority of Kenya & 4 others [2018] eKLR the Court stated as follows;“52. Privacy is a fundamental human right, enshrined in numerous international human rights instruments. It is central to the protection of human dignity and forms the basis of any democratic society. It also supports and reinforces other rights, such as freedom of expression, information, and association. The right to privacy embodies the presumption that individuals should have an area of autonomous development, interaction, and liberty, a “private sphere” with or without interaction with others, free from arbitrary state intervention and from excessive unsolicited intervention by other uninvited individuals. Activities that restrict the right to privacy, such as surveillance and censorship, can only be justified when they are prescribed by law, necessary to achieve a legitimate aim, and proportionate to the aim pursued.53. A person’s right to privacy entails that such a person should have control over his or her personal information and should be able to conduct his or her personal affairs relatively free from unwanted intrusions. Privacy, in its simplest sense, allows each human being to be left alone in a core which is inviolable…”
96. In this, I find that the 1st Defendant admitted that the aired the feature and I find that the plaintiff’s right to privacy was violated.
97. On the issue as to whether plaintiff agreed to be featured in the program that was aired by the 1st defendant and in the manner that it was aired, I find that the plaintiff’s evidence was that she agreed to talk about Gender Violence Against Women in Closed Institutions: in reference to a medical malpractice against her in 1990.
98. However, she said that the discourse delved on schizophrenia, with strong and specific reference to the plaintiff as the subject of the case study.
99. The plaintiff said that to the best of her knowledge she had never been so labeled before not even in 1990 and the Defendants’ action violated the constitutional freedom and independence of electronic media.
100. The Defendants’ defence was that indeed KTN ran a Sunday feature on mental health sometime in 1998 calling for public action and participation. The feature aired by the 1st defendant was informed by the need to educate and sensitize the public on the ills of mental health in the country.
101. The 1st Defendant said that in order to effectively and accurately fulfil its social obligation of educating and sensitizing the public on the subject the 1st defendant included and interviewed the 2nd and 3rd defendants in their capacities as duly qualified and licensed medical practitioners.
102. Although the 2nd Defendant had a doctor-patient relationship with the plaintiff, there is no evidence that he disclosed confidential details during the telecast.
103. The 2nd and 3rd Defendants were invited to the telecast by the 1st Defendant and therefore I do not find them culpable. The plaintiff said that she did not have a doctor-patient relationship with the 3rd Defendant and I find that the 2nd and 3rd Defendants were invited by the 1st Defendant.
104. I find that the 1st Defendant was duty bound to ensure they had the consent of the plaintiff before airing the feature.
105. I exonerate the 2nd and 3rd Defendants from liability for breach of the plaintiff’s right to privacy.
106. On the issue as to whether the plaintiff is entitled to the remedies she is seeking against the Defendants, the plaintiff is seeking the following remedies;i.A declaration that the petitioner’s constitutional rights and freedoms have been grossly violated and abused by the respondents.ii.A declaration that the petitioner is entitled to general, aggravated exemplary and punitive damages.iii.An order that the respondents do jointly and severally pay the said damages.iv.Damages for libel.v.General damages.vi.Punitive damagesvii.Exemplary damages.viii.An injunction restraining the defendants and each of them whether by themselves, their servants or agents or otherwise from further publishing or causing to be published the said or similar words defamatory to the plaintiff.ix.Costs of this suit.x.Interest on the above.xi.Such other or further relief as this honourable court may deem fit.
107. Having exonerated the 2nd and 3rd Defendants from liability on the basis that the telecast was at the behest of the 1st Defendant, I find that the 1st Defendant is liable to pay the plaintiff damages for breach of her constitutional right to privacy.
108. In the case of GSN v Nairobi Hospital & 2 others [2020] eKLR Justice Weldon Korir(as he then was), said as follows on the issue of breach to the right to privacy;“This expanded interpretation of the right was highlighted by B. Rossler in his book, The Value of Privacy (Polity, 2005) page 72, as was cited in the case of Coalition for Reform and Democracy (CORD) & 2 others v Republic of Kenya &10 others [2015] eKLR, where he explained that:-“Protecting privacy is necessary if an individual is to lead an autonomous, independent life, enjoy mental happiness, develop a variety of diverse interpersonal relationships, formulate unique ideas, opinions, beliefs and ways of living and participate in a democratic, pluralistic society. The importance of privacy to the individual and society certainly justifies the conclusion that it is a fundamental social value, and should be vigorously protected in law. Each intrusion upon private life is demeaning not only to the dignity and spirit of the individual, but also to the integrity of the society of which the individual is part.”
109. The plaintiff had filed two suits. One was in the Constitutional and Human Rights Division and another in the Civil Division. I find that every High court has unlimited jurisdiction to hear all matters filed in any Division of the High Court and the Divisions are merely administrative.
110. The plaintiff is entitled to the following remedies against the 1st Defendant;i.A declaration be and is hereby issued that the plaintiff’s constitutional right to privacy was grossly violated and abused by the 1st Defendant.ii.An injunction restraining the 1st defendant whether by itself, it’s servants or agents or otherwise from further publishing or causing to be published the said or similar words defamatory to the plaintiff.iii.I award the plaintiff Kenya shillings ten million (ksh.10,000,000/=.) in respect of General damages for violation of her right to privacy.iv.Judgement be and is hereby entered in favour of the plaintiff against the 1st defendant in the sum of Kenya shillings 10 million with costs and interest from the time of filing the suit until payment in full.v.The suit against the 2nd and 3rd Defendants is dismissed with no orders as to costs.vi.The 2nd and 3rd Defendants are not entitled to costs from the plaintiff because they participated in the telecast where the plaintiff was featured.
DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 30TH DAY OF JUNE, 2023. A. N. ONGERIJUDGE