Benedict Maurice Omollo Olwenyo v Migori County Government, Standard Group Limited, Nairobi State Publication Ltd & Nation Media Group Limited [2017] KEHC 7976 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA  AT  MIGORI

CIVIL  CASE  NO. 9  OF 2014

BENEDICT MAURICE OMOLLO OLWENYO........PLAINTIFF

VERSUS

1. MIGORI COUNTY GOVERNMENT

2. STANDARD GROUP LIMITED.......................DEFENDANT

=CONSOLIDATED WITH=

CIVIL CASE NO. 10 OF 2014

BENEDICT MAURICE OMOLLO OLWENYO......PLAINTIFF

VERSUS

1.  MIGORI COUNTY GOVERNMENT

2. NAIROBI STATE PUBLICATION LTD ..........DEFENDANT

=CONSOLIDATED WITH=

CIVIL CASE NO. 10 OF 2014

BENEDICT MAURICE OMOLLO OLWENYO.....PLAINTIFF

VERSUS

1. MIGORI COUNTY GOVERNMENT

2. NATION MEDIA  GROUP LIMITED.............DEFENDANT

JUDGMENT

Introduction

“Lago:  Good name in a man or woman, dear my lord, is the immediate jewel of their souls. Who steals my purse steals trash; 'tis something, nothing:  Twas mine, tis his, and has been slave to thousands; But he then filches from me my good name Robs me of that which not enriches him; And make me poor indeed.”

-William Shakespeare in Othello Act 3 Scene 3, 155 – 161.

1. Following some public  notice advertisements placed by Migori County government in that local daily newspapers effective that on Benedict Maurice Omollo Olwenyo, the Plaintiff herein, had ceased to be an  employee of the Migori County Government, the Plaintiff filed three separated suits each again Migori  County Government and the respective media company  newspapers carried out the notice.

2. The three suit s are Migori High Court Civil Cases No.  09 of 2014, No. 10 of 2014 and  No. 11 of 2014 again  Migori County Government, Standard Group Limited,  Nairobi Star Publication Ltd and Nation Media  Group Limited respectively.

3. The suits are claiming General Damages, Aggravated Damages, withdrawal apology to the Plaintiff, costs and interest hereon jointly and severally against the Defendants arising from the said  publications which the Plaintiff claimed were defamatory of him

4. The suits were consolidated by an Order of this court for purposes of hearing with Migori High Court Civil  Case No. 09 of 20154 being the lead file. Following the consolidation the Defendants henceforth appeared as Migori County Government, Standard Group Limited, Nation Media Group Limited and Nairobi Star Publication Ltd respectively.

5. The case then proceeded for hearing.

The Suits:-

6. The three  suits, although distinct in law, arose from the same cause of action which were the public notice advertisements carried out jointly and severally by the defendants.

7. The public – notice forming the basis of Migori High Court civil Suits No. 09 of 2014 was carried out in the Standard  Newspapers on 28th September, 2014 . The advertisements which became the basis of  Migori High Court Civil case no. 10 of 2014 was carried out in the Star Newspaper on 26th September, 2014 whereas the advertisement that led to the jointing of Migori High Court Civil case No. 11 of 2014  was carried out in the Nation Newspaper also on 28th September, 2014.

8. The Notice were similar in content and carried the Plaintiff Coloured passport photograph  with the following words below the photograph.

“This is to  notify the public that Benedict Maurice Omollo Olwenyo identification number 3787507, is no longer an employee of Migori County Government. Omolo, who worked at the county as Chief Officer, Finance, ceased to be staff  of the county Government from September 11, 2014.

He is, therefore, not authorized to transact any business on behalf of Migori County Government.  Any liabilities incurred by him will not be honoured by Migori County Government.”

9. All the three suits were defended upon instructions upon service.   In Migori High Court Civil Case No. 09 of 2014,  Migori County Government filed a statement of Defence and a Counter-claim seeking the dismissal o f the case and or enter judgment against the Plaintiff for General damages, withdrawal apology and costs in what it also believed that the plaintiff had defamed it.    The Standard Group Limited filed a Statement of Defence.    The Plaintiff then filed a Reply to Defence.  In Migori High Court Civil Case No. 10 of 2014, Migori County Government  equally filed a statement of Defence and a counter-claim just like in the earlier case whereas Nairobi Star Publication Limited  filed a Statement of Defence.

10. In Migori High Court Civil Case No. 11 of 2014, Migori County Government just like in the previous two suits filed a  statement of Defence and counter claim whereas Nation Media Group Limited filed a Statement of Defence  and the plaintiff filed a Reply to Defence.

11. Alongside the pleadings parties filed respective  witnesses Statements, List of Witnesses and Lists of Documents.   As there was no concurrence on the agreed issues to determine  by the court each party filed his own separate issues accordingly.

12. For purposes of this judgment, I shall refer to the  parties as follows:- Benedict Maurice Omollo Olwenyo  shall be “the Plaintiff”; Migori County Government shall be “the First Defendant”; Standard Group Limited as the “Second Defendant;”

The Plaintiff's Case

13. The Plaintiff testified and called one witnesses in support of his case.   He adopted and relied on his statement dated 23/10/2014 as well as  the Documents contained in the List of Documents early dated 23/10/2014 was briefly taken through examination – in – chief and was cross – examined and re-examined accordingly.

14. The plaintiff's credentials and status as  contained in his Curriculum Vitae were not controverted.   He is an accomplished Accountant by  profession having began his carrier  in 2003 when he was employed as an Accountant of the  Revolving Fund at the Ministry of Home Affairs  (Prison Department).   In 2009 the Plaintiff was  transferred to and became the Provincial Steward of the then Government District within the same Ministry.   In 2009, the plaintiff moved to the Ministry of finance and  became the Head of District Treasury at Uriri District.   He held that position upto February, 2013 when he was  seconded to the Transition Authority as the Transitional Principal Officer for Migori County.   The  Plaintiff was then employed by the 1st Defendant in Devolution 2013 as the Chief officer in the Finance & Economic Planing Department which position he held until August 2014 when he tendered his resignation to the 1st Defendant and was recalled to and took  over  the duties of a Senior Assistant at the  Ministry  of Finance headquarters todate.

15. Having scored a C+ Mean grade in Kenya Certificate of Secondary Examination (KCSE) examination  in 1994, the plaintiff  trained in Business Administration for a Diploma in 1998 to a Masters of Science in Commerce (Finance and Accounting Option) in 2013.   He prides  himself  of processing a strong combination of training and experience in Accounting, Human Resource Management and Customer Care with  Superior communication skills, and enjoys working in a multi-cultural dynamic work environment  where teamwork is upheld.   The Plaintiff is married.

16. It is the plaintiff's case that he was employed by the 1st Defendant as its Chief Officer, Finance and Economic  Planing for a period of five years.   He underwent the recruitment  process though  the 1st  Defendant's County Public Service Board.  The appointment was effective 09/12/2013.

17. According to the Plaintiff's Statement dated 23/10/2014 and filed in court on 09/11/2014, the Plaintiff voluntarily resigned from the Defendant by his  letter dated 25/08/2014 pursuant to Section 45 (6) of the County Government  Act which recognition o f the 1st Defendant accepted and indeed went ahead  to notify the Ministry of Finance, National Treasury that he had so resigned by the letter dated 26/08/2014.  To t he plaintiff, he had served the 1st Defendant with utmost loyalty and had no complains thrown to him as at the time of tendering  his recognition.    The plaintiff  was hence surprised to see the public notice advertisements in the three local dailies with the  largest circulation in Kenya  and the intent informing  the public that he  had ceased employment with the 1st Defendant almost one month later.

18. He was seriously hurt by the advertisement as he had a good working relationship with the 1st Defendant during his tenace and could not  understand why the 1st  Defendant was informing the public that he was not authorized to transact any business on behalf of  the 1st Defendant and that any liabilities made by him  would not be honoured by the 1st Defendant.   The Plaintiff  contended that the publication  of his photograph alongside the words was  articulated by malice and was calculated to disparage his character  and as a result the publication caused serious injury to his character and  reputation as a Accountant.

19. It was still contended in the statement by the Plaintiff that as a result of the publication, the plaintiff received many calls enquirers from his friends, fellow accountants and relatives inquiring about the article and the  allegations contained therein including whether he had been sacked, whether he had been involved in any corruption as or unlawful actions in the employment and generally about  his professional and work ethics as an Accountant and in person.    The Plaintiff further wondered why the 2nd, 3rd and 4th Defendants never bothered to call him or seek any clarification from him before the publication.

20. The Plaintiff decided to file the three suits against the Defendants as they  all jointly and severally refused to retract the notice and offer an apology to him. He also reiterated the contents of the Plaint as part of his statement.

21. For purposes of clarity of the plaintiff's case, I will reiterate paragraph 5 to 13 inclusive of the Plaints ( which are all similar in the three suits) which were on the effect of the publication to the Plaintiff:-

“5. The Plaintiff states that the publication  of the notice alongside the  words and the photograph  was calculated to disparage  and did  disparage the character  of the Plaintiff in his profession  and duties as in their  natural and ordinary  meaning meant and was understood  to mean that  the plaintiff, both  as an accountant  and in his person:-

a) Was corrupt and crooked.

b) Incurred liability  on  behalf of  the 1st Defendant

c) Was a person  who could not be trusted with public finances

e) Was undeserving and unfit to hold  any office  and unworthy of his  standing in society

f) was  wanting in gratitude, dishonest and extremely  unreliable.

g) had  committed a criminal  offence

h) Was  a complete  social misfit

i) Was a scoundrel and rascal.

6. The Plaintiff states  that the Defendants  falsely and maliciously printed and published the notice, the words while knowing fully well that the allegations therein would disparage and harm the Plaintiff's character.

7. The plaintiff  avers that the above statements have brought  his  person and his family to public scandal. Odium, ridicule, hatred and contempt and has caused him to be shunned and avoided, and has  in this regard injured him in his office and calling.

8. The plaintiff avers that he has suffered considerable distress and embarrassment, and his  reputation and person has as a result suffered.

9. The Plaintiff avers that the said words towards  him were not only actuated by malice, contempt and spite  but were also calculated to and did in fact injure, discredit and cause his reputation  to be shunned by right thinking members of the society and has exposed him to hatred, contempt and ridicule.

10. The Plaintiff  avers that the said words were maliciously and recklessly published and indifferent of the plaintiff.

PARTICULARS  OF RECKLESSNESS, FALSEHOOD, MALICE AND SPITE

a) Failure / Refusal by  the 2nd Defendant  to contact the Plaintiff for clarification prior o publishing of the said article.

b) Failure / Refusal by the 1st Defendant to publish  the fact that the Plaintiff had resigned and his resignation accepted by the 1st Defendant.

c)Failure / Refusal by the 1st Defendant to publish  the fact that the Plaintiff had been recalled and now works  at the  National  Treasury (National Government).

d) Failure / Refusal by the 1st Defendant to publish  the fact that the Plaintiff's resignation was voluntary and was not associated with any  financial misappropriation or investigation.

e) Failure / Refusal of both  Defendants to retract the publication upon demand by the plaintiff.

11. The publication has caused the Plaintiff to suffer loss and damage to his reputation  especially since at the time of the publication  of the article, the Plaintiff had already ceased being an  employee of the 1st defendant after he had been recalled, resigned and redeployed to the Ministry of Finance, Treasury, Nairobi a fact  well known  to the 1st Defendant.

12. The Plaintiff states that the 2nd Defendant did not  seek any clarification from him before the publication

13. The Plaintiff states  that despite demand and notice being sent to the Defendants, the Defendants  have not issued an apology or admitted liability. Rather, the Defendants have in blatant disregard  to the notice, failed to make good of the demand by the  Plaintiff hence making this suit necessary.

22. When the Plaintiff was led by his counsel Mr.  Muriithi's in examination -in – chief he stated that he was not aware of any disciplinary  issues  against him as he had voluntarily resigned.   He also denied receipt of any of the letters contained in the 1st Defendant's List of Documents filed  on 17/11/2014.   The Plaintiff further contended that the 1st Defendant intentionally passed erroneously information to the public.    He in particular took issue  with the date of resignation appearing in the impugned notice as 11/09/2014 whereas he had resigned long before and even reported back to the National Treasury.   The Plaintiff further contended that whereas he never transacted any business on behalf of the 1st Defendant upon the acceptance  of resignation on 26/08/2014 the 1st Defendant still went ahead and mounted a notice to the effect that the Plaintiff was  incurring  liabilities on behalf of the 1st Defendant and  that the same will not be honoured.  To that end, his integrity and professionalism  was brought into disparage.

23. On being cross – examined by Mr. Agure Odero Counsel for the 1st Defendant, the Plaintiff reiterated that he  never received any correspondences on the alleged disciplinary Proceedings and that he resigned out of his own volition and not otherwise.   He further  denied even appearing before the 1st Defendant's  County Assembly and acting in an disrespectful and improffessional manner.   He admitted that  to position of a Chief Officer of Finance was such  a senior position and it would accordingly be authorized to the press.  The  Plaintiff was aware  that by the time the Publication was made  the position of the Chief Officer had a holder but he was not aware if the holder had also been put up in  the press.   The Plaintiff remained emphatic that although the impugned notice did not state that he was a criminal, the same sent all the meaning signal in telling the public not to transact with him despite his heavy responsibility at the National Treasury.

24. Upon being cross – examined by Mr. Nyamurongi Counsel for the 2nd Defendant the Plaintiff stated that the reason why he had sued the 2nd Defendant was that  it had published the  impugned notice negligently and without  the courtesy of contacting him to clarify the contents thereof given that he was a person of a high position,  responsibility, credibility and status.   The plaintiff  admitted  that it is a normal thing for people to  leave employment for any reason and that  there is no fast rule or   law that people of such  status as the Plaintiff had to be contacted before such a publication is run.

25. The Plaintiff further admitted that by the time the  advertisement was made he was no longer an employee of the 1st Defendant and that the decision to resign was both a private as well as a public affair.   The Plaintiff  confirmed that  he did not publish any notice informing the public that he ha d resigned from  the 1st Defendant's employment.  As a senior  employee of the 1st Defendant, the Plaintiff admitted that the discharge of his duties  had a great implication on the 1st Defendant.

26. It was made clear by the Plaintiff that upon ceasing employment with the 1st Defendant he lost the authority to transact for and on behalf of the 1st  Defendant and that if he even transacted any business thereafter such would not bind the 1st Defendant.

27. While being cross -examined by Misses Stausi, Counsel for the 3rd Defendant, the Plaintiff admitted that the discharge of his duties at the 1st Defendant would bind the 1st Defendant although his  duty was to implement policy as delegated to him by the county Executive Nominee Member for Finance and Planing to whom he was reporting to.   H e equally admitted that the  impugned publication was the same across all  the three newspapers and that as a result of  the publication he was called by his  friends and family members who were wondering what the plaintiff had done.   The Plaintiff further admitted that he did not have any SMS's or emails  to confirm tat his friends and family members called him  on the publication.

28. The plaintiff also confirmed that he had initially been seconded to the Transition Authority and after  resigning  from the 1st Defendant he was recalled to the National Treasury where he was  discharging very heavy responsibilities including heading District Treasuries, preparation of reports to the National Treasury, guiding the District Tender Committee Nationally among other duties. The Plaintiff also admitted that his enrollment at the 1st Defendant were higher than what he was then earning at the National treasury and that when he was recalled to the National Treasury he resumed his very job group he was at the time of the secondment to th e Transition Authority.

29. When  asked on the reasons why he resigned  from the 1st Defendant by the counsel for the 3rd Defendant the Plaintiff declined to disclose the same holding that it was based on  issues of principles.

30. As Mr. Agure Odero who appeared for the 1st Defendant also held brief for the Counsel for the  4th Defendant, the Plaintiff was then re-examined by his counsel. He then  agreed to disclose that the reason why he  resigned were that the Governor would make unsubstantiated demands for money without following procedures and that the 1st Defendant was  deeply embedded  in corruption.   He said he  was even ready to swear an affidavit on  the rot in the 1st Defendant.

31. Plaintiff also clarified that his  concern on the publication was on the contest note he would not incur any liabilities on behalf of the 1st Defendant but only the Governor an d that decisions to which liabilities were made collectively and not inordinately.

32. BONIFACE OGENO OBONYOtestified as PW2.   He relied on the statement dated 30/07/2015 and filed to court on 06/05/2015 which he adopted as his evidence – in – chief.  PW2 stated that he was an  Environmentalist    by profession and had known  the Plaintiff for a period of 24 years.   He knew the Plaintiff personally and professionally as  well as his family.  PW2 confirmed that he  saw a public notice in the Star Newspaper on 26/09/2014 which indicated that the Plaintiff was not authorized to transact any business on  behalf  of the 1st Defendant as he was  no longer working for the 1st Defendant.   The notice had the Plaintiff's photograph as well as  his national identification card number 13787507.

33. It was the evidence of PW2 that  when he saw the notice concerning the Plaintiff he wondered what  had happened to him and why his name was  in the newspapers since he knew the plaintiff as a good man of good morals and of high standing Accountant.  PW2 formed the view that the plaintiff was a criminal who should not be allowed to hold any office and that was  why the notice had been published in order to warn the general public of his conduct.

34. On being cross-examined by Mr. Agure  Odero Counsel  for the 1st Defendant, PW2 conferred that he ha d  never worked with the Plaintiff although the plaintiff was  his schoolmate and a friend.   PW2 reiterated that the wording of the notice portrayed the plaintiff  as a criminal and that it would make people think that the Plaintiff had been engaged in criminal actions.  PW2 remained aware that the 1st Defendant was not a duty to publish its dealings.

35. When PW2 was cross -examined by Mr. Nyamogi he  confirmed that he also saw the publication  that was run in the standard newspapers on 26/09/2014 which also carried the plaintiff's photograph.  PW2 did not know why the plaintiff had ceased employment with the 1st Defendant.  PW2 was aware that whenever an employee ceases  employment then that employee loses  he authority to transact  any business for and on  behalf of the employer and that any liability among therefrom would not be honoured  by the employer.

36. PW2 revealed that he was a confidant to the plaintiff on being cross – examined by Miss Stausi, Counsel  for the 3rd Defendant.  Although  the plaintiff  did not disclose to PW2 the reasons for his resignation, PW2 had  complained to him about unprocedural dealings at his workplace and appeared very  concerned.

37. PW2 had earlier on seen the public notice when the plaintiff was seconded to the Transition Authority  and he was happy for him although  he could not recall seeing such a public  work when the plaintiff was appointed as the  Chief Officer by the 1st Defendant.  PW2 admitted that civil  servants interact a lot with he public  and that  there was no problem in carrying out an advertisement that such a civil servant had ceased to be an employee but his  concern was that the impugned publication jeopardized the Plaintiff's future employment prospects as such future employers will  be forced to seek the Plaintiff's employment history from the 1st Defendant.    PW2 remained aware that once an employee ceased employment then such an  employee is not authorized to transact for and on behalf of the employer.

38. On being re-examined PW2 reiterated that  the notice was unfair as it warned the public  from engaging with the plaintiff and that negatively potrayed the plaintiff.

39. With the evidence of PW2, the plaintiff closed his case.

The First Defendant's Case

40. The 1st Defendant called its County secretary who testified for  and on its behalf. He was one CHRISTOPHER ODHIAMBO RUSANA.   He also adopted the contents of his twin statements filed on 17/11/2014 and 25/06/2015 respectively as well as the  documents contained in the list dated 14/11/2014 and as well as those  filed on 04/04/2016.   This witness equally reiterated the contents of the  1st Defendant's Statement of Defence and the Counter-claim.

41. CHRISTOPHER ODHIAMBO RUSANA(hereinafter referred was “the County Secretary”) gave the history of the plaintiff's  terms with the 1st Defendant as its Chief Officer, Finance and Economic Planning.   H e stated that the plaintiff was appointed on 04/12/2013 to the position on terms and conditions contained  in a letter of appointment and that the plaintiff accepted  and took offer as from 09/12/2013.

42. The plaintiff discharged  his duties well when sometimes in March 2014 when he was summoned before the 1st Defendant's County Public Service Board (“the Board”) to respond to some allegations  relating to the discharge of his work. That the plaintiff was issued with a Notice to Show Cause  by the Board but he ignored to appear and show cause why no disciplinary action  ought not to be taken against him.   The Board  took action and extended the plaintiff's probationary period for a further  six (6) months effective 06/06/2014  to accord him an opportunity to improve on his  performance.

43. According to the filed Statements of the County Secretary the plaintiff again found himself  in trouble with the 1st Defendant's County  Assembly  Members. He stood out of the Assembly Chambers without the permission on the Chairman and forcefully knocked he main door and forced himself out.   This was the highest show of disrespect to the authority, insubordination, rudeness, moral and moral decay, the County Secretary reiterated.    The County Secretary further stated that sometimes in July  2014 the County Assembly  summoned the plaintiff on allegations of gross misconduct but he ignored to appear before the House and the matter was  referred to the Board for action whereof the  Board terminated the plaintiff's employment contract and advised the County Secretary to notify the plaintiff accordingly.   According to the County Secretary the  termination was effective on the date he was to convey the Board's decision to the plaintiff.

44. The County Secretary insisted that as the plaintiff knew that his employment life with the 1st Defendant had almost come to an end, he in a cleverly  way to beat the process, purported to and tendered his resignation by the letter dated  25/08/2014. To him that letter was done in bad faith.   The plaintiff having resigned from the employment with the 1st Defendant, the 1st Defendant pursuant to the constituted and statutory requirements  …... informed the general public of the plaintiff's exist from its employment and that the publication were normal and did not attack  or injure the integrity  and reputation of the  plaintiff or at all.

45. It was the 1st Defendant's prayer that the plaintiff's suits against it be dismissed with costs and that  judgment be entered for the 1st Defendant as against  the plaintiff as prayed for in the Counter-claim.

46. When the County secretary was cross-examined by Mr. Muriithi Counsel for the plaintiff, he informed the Court that he  was employed as such in July 2014 and that the 1st Defendant had given instructions that the publication be carried out with a view of informing the general public that the plaintiff was no  longer an employee of the 1st Defendant and as such did not possess any authority  to transact any business for an d n behalf of the 1st Defendant.  Consequently, any liabilities which will be  incurred by  or as a result of the plaintiff's engagement were not going to be honoured by the 1st Defendant.    He also admitted hat the notice stated that the plaintiff had ceased employment  as from 11/09/2014 although he was aware  of the plaintiff's letter on resignation dated 25/08/2014.

47. The County Secretary further informed the court that when he received the letter from the Board on the plaintiff's termination of his contract of employment he personally forwarded that decision to the plaintiff vide a letter which he could not manage to avail to court.    The County Secretary admitted that the County Assembly operated a Hazard which was a new of all proceedings of the House and that if there was any scuffle between the plaintiff and the County Assembly  members the Hazard was the best evidence to that end.

48. On the infringed morale, the County Secretary explained that the last paragraph was only a cow eat  although he was aware that the plaintiff had not transacted for and on behalf of the 1st Defendant side the time he tendered his resignation letter. It was the testimony of the County Secretary  that there was bad blood between the plaintiff and the 1st defendant as the plaintiff certainly carried himself dishonourablly and that he had pending  disciplinary proceedings  and that the relationship between the plaintiff and the 1st  defendant was indeed frosty.   He confirmed that the 1st  defendant  had not  offered any apology to the plaintiff since according  to the 1st  defendant, it was the plaintiff to do so.   He also confirmed having  bought all the newspapers that carried out  the publication.

49. Mr. Nyamurongi Counsel for the 1st defendant also had an opportunity of cross – examining the County Secretary .   It  was readily admitted   that the 1st defendant gave  instructions  to the 2nd defendant to publish the  impugned notices and that the 1st defendant ran an account with the 2nd defendant on publications.   The publication was presided by an  Advertisement Order dated 25/09/2014 duly signed by the 1st defendant that order did not  certain the circumstances surrounding the employment of the  plaintiff and the 1st defendant and that such facts  remained within the knowledge  of the 1st defendant.   The County Secretary  further emphasized that the notice was by the 1st Defendant and not the 2nd defendant and  the 2nd defendant was only a conveyor of the notice and  that the truth or otherwise of this contents of the notice could only b e volunteered by the 1st defendant.

50. To the County Secretary the impugned notices were not defamatory at all and were the normal onces run in the press especially in employment matters relating to public bodies.   The notices were just plain without  any hidden meaning at all.

51. As the County Secretary was taken through the  cross -examination by Miss Stausi, Counsel for the 3rd defendant, he equally confirmed that the 1st defended gave instructions to the 3rd defendant to publish the  notice through its letter dated 25/09/2014 which the 1st defendant addressed to the 3rd defendant.   The letter contained what was to be published  and that the 3rd defendant merely responded  to what the 1st defendant had asked it to publish.   The County Secretary  also confirmed that the 1st defendant issued an  indemnity to the 3rd defendant on any liability that was likely to arise out of the publication at had and that the indemnity Form was part of the court record.

52. Mr. Agure Odero wrapped up the County Secretary's evidence on re-examination. The County Secretary  clarified that the defendant's letter dated  26/08/2014 to the National Treasury was erroneous ass it stated that the plaintiff was on secondment to the 1st defendant whereas the correct position was that the plaintiff had been seconded  to the Transition Authority after which he was finally employed by the 1st defendant.   The  County Secretary also  re-emphasized that  the notices did not in any way and content or intent on the part of the  plaintiff's and that there had been no need to file any of the suits in the first place.   He also explained that eh 1st defendant decided to publish the notice after the completion of the disciplinary proceedings against the plaintiff and nor before and that is why there was the time lapse between the plaintiff's resignation and the publication of the notices.

53. The 1st defendant closed its cases.

The Second , Third and Forth Defendant's Casts:

54. The 2nd, 3rd and 4th defendants closed the respective case without calling any witnesses.   They however indicated to tender their submissions accordingly.

The Parties Submission

a)  The Plaintiff

55. The plaintiff filed his comprehensive submissions on 24/05/16 when he submitted that he had proved each of the three  cases as required in law.   That indeed the plaintiff was  defamed in his character as the statements as  contained in the impugned notices were malicious, untrue, recklessly and negligently made without  having to establish he truth and that they were intentionally calculated to injure the plaintiff's auditing character and reputation.

56. The plaintiff further submitted that the allegations by the 1st defendant on the plaintiff's alleged misconduct at work remained immaterial as the same  were not proved at all but also even if they would be true, do not tie without the paramises of he suits, but  as labour dispute.

57. It was the plaintiff's  submission that the 1st defendant intentional relayed false information to the public that the plaintiff had ceased  being its employee as at 11/09/2014 while it clearly knew that to be untrue as indeed the plaintiff had resigned much  earlier on 25/08/2014 and the resignation accepted by the 1st defendant letter dated 26/08/2014.

58. It was also contended that the statements by the 1st defendant informing  the public that the plaintiff is not authorized to transact any business on behalf of the 1st defendant was clothed in an immendo to the effect that  the plaintiff was transacting business on behalf of the  1st defendant; a fact the 1st defendant knew. Otherwise  as the plaintiff was only intended with policy formation.   Submissions were further made that equally the statement that the plaintiff was incurring liabilities on behalf of eh 1st defendant were untrue since all liabilities by the 1st defendant are subject to approval by the County Assembly  under Section 103 of the County Government Act and  as such the plaintiff would not incur any liability without the approval and consent of the 1st defendant.   The plaintiff contended that  the 1st defendant failed to tender evidence  that he even dealt with the public in his day to day work.

59. As to the effect of the notices on the plaintiff, it was submitted that the same disparaged the plaintiff by portraying  destroying his character, credibility and reputation and that in then natural meaning the notices meant that the plaintiff was not honourable, was unprofessional, guilty of transacting  unlawful business and could not  be trusted with friends and that the position was confirmed by the numerous calls and enquires to the plaintiff received from his friends and  family members on the matter.   He relied on  the case of Phineas Nyagah v. Gitubu Imanayara  (2013) e KLR in buttressing the argument that his reputation was disparaged in the eyes of  the right thinking members of the society.

60. On the submission that the impugned notice were published maliciously the plaintiff relied on the said Phineas Nyagah supra and further submitted that the period  of one month  taken by the 1st defendant to run the impugned  notices was a further demonstration of such malice.   The plaintiff  equally submitted that the  allegations  that the plaintiff had been taken through a disciplinary process revealed the strongest evidence of malice.   Further  submission were made that the 2nd, 3rd and 4th defendants were equally malicious when they did not come to confirm the contents of the  notices with the plaintiff upon to their publication. The case of  Daily Nation v. Mukindi & Ano' (1975) EA 311as questioned in GideonMose Onchwati vs. Kenya  Oil Co Ltd & Ano (2015) e KLRwas cited in support of those submissions.

61. The plaintiff also submitted that as a result of the defamation he suffered he was entrusted to dangers in the sum of Kshs. 5,000,000/= on each case  action, Kshs. 5,000,000/= on each case as exemplary damages and Kshs.  500,000/= in lieu  of an apology also against each defendant.   The plaintiff referred to the decided cases of Ken  Odondi & 2 others v. James  Okoth Ombwah t/a Okoth Ombwah & Company Advocates (2013) e KLR as quoted in the Gideon  Mose Onchwati case (supra), Arthur Papa Odera v. Peter O. Ekisa (2016) e KLRand that ofNaqui Syed Qmar v. Paramount Bank Ltd & Ano (2015)  e KLR, as a base of the damages he claimed.

b) The 1st Defendant

62. The 1sst defendant equally filed extensive submissions in opposing all the plaintiff's claims  against it.   In a nutshell the 1st defendant's position  remained that the impugned notices did not  defame the plaintiff either as alleged or otherwise  as the same contained very true information.

63. It was argued that the 1st defendant carried out the notices in very good faith and as  its calling under the Constitution of Kenya and the County Government  Act to uphold transparency  in its public dealings  and to disseminate  such necessary information to the public.   The 1st defendant also made  references to the Penal Code in  demonstrating that it was privilege to disseminate the information to the  public.

64. The 1st  defendant denied that the plaintiff had ever demonstrated that it cited maliciously in authorizing the …... of any of the impugned notices and further that no damage to the plaintiff's reputation was proved as he continued enjoying a very high profile job  in the National Treasury.   The cases of Ambabali vs. Electoral Commission (2007), 1EA LR 182 2006 and that of Miguna Miguna v.   The Standard group Ltd & 4 others 2016) eKLRwere also  cited.

65. The 1st defendant then prayed that the case be dismissed with  costs accordingly.

c)  The  2nd Defendants

66. The 2nd defendant likewise filed substantive submissions in calling for he dismissal of the plaintiff's claim against  it.

67. It was submitted that the plaintiff failed to prove that the statements contained in the impugned notices were  defamatory as they were indeed truthful in material particulars and to the extent that the plaintiff's employment with the 1st  defendant had ceased and as such the plaintiff had no authority  to transact  any  business on behalf of the 1st defendant and that because the plaintiff's authority to transact  on behalf of the plaintiff had ceased, any liability issued by him would  never be honoured by the 1st defendant.

68. The 2nd defendant contended that the words  to the notice were true in substance and as such they cannot be said to have honoured the plaintiff's reputation.   It was further submitted that PW2 was a personal friend to the plaintiff and was therefore  a special  class of people  and cannot be deemed to constitute “right -minded persons” as to represent this general public.    The case of J. Kudwoli & Ano. v. Eureka  Educational & Training Consultants & 2 others (1993) e KLR was referred to in support of that argument.

69. The 2nd defendant further submitted that the notice contained plain words and statements that  did not trigger the need for  clarification by the  plaintiff and that is why even the plaintiff himself confirmed that this notice was the then accordingly published by an employer.   It was also submitted that the notice ought to be  looked at as a whole and not to pick part of it and co.... a suitable meaning from it.   The 2nd defendant submitted that the words ”Any liabilities issued by him  will not be honoured by Migori  County Government” ought to be constituted within  the context o f the entire publication and not to isolation.

70. The case of Phineas Nyaga (supra) was once again referred in the submission that the plaintiff failed to prove malice against the 2nd defendant as  the words in the notice were  not worthy  beyond or disappointment to the facts and that the notice was an ordinary one in such circumstances.

71.  The 2nd defendant made further submissions that despite  the plaintiff having failed to prove its case against it, still damages ought to be assessed.   To that end  the 2nd defendant referred to several cases in-arguing  that only nominal general  damages word to be  awarded.   The cases referred to were Ruba Kimithra v.   Radio Africa Ltd t/a The Star  (2016) e KLR, Johnson Evans Gicheru vs.   Andrew Morton & Another (2005) e KLR, Wangethi  Mwangi & Ano' v. J. P. Machira t/a Machira  & Co Advocates, Court of Appeal Civil Appeal No.  148 of 2003 (unreported) and Nation Newspapers Ltd vs. Gibendi (2002) eKLR.

72. It was also submitted that the court makes a declaration in the event it enters judgment in favour of the plaintiff against the 2nd defendant  that any such issues are renewable  from the 1st defendant by  dint of the indemnity that was filed and admitted by the 1st defendant.

73. The 2nd defendant called the court  to find a healthy  balance between private individual rights and the public interest with respect to information on the manner in which affairs are being  conducted in public bodies.   It called for the dismissal of the plaintiff's case against it with costs.

d)  The 3rd Defendant

74. The 3rd defendant didn't file any submissions in the matter.

e)  The 4th Defendant

75. Counsel for the 4th defendant also filed quite external submissions in urging the court to dismiss the plaintiff's case against it.

76. It contended that the plaintiff did not prove that the publication in issue was defamatory and that the cause of action was far-fetched and only meant to mislead the court.   It was submitted that the right – thinking member of society can easily draw the different between stating that the “plaintiff is not allowed to carry out any business on behalf of Migori County as any liabilities incurred by him  will not be honoured by Migori County Government” and stating that “the plaintiff has transacted business  on behalf of  Migori  County and has issued liabilities yet to be  is no longer employed by  Migori County”.

77. It was also submitted to plaintiff's contention of a the words used  in the notice did not tally with the plan and ordinary meaning of the words and that the words were truthful.   Further  the 4th Defendant submitted that the discrepancy  in  the date when the plaintiff resigned and when appeared to the notice  did not  injure the plaintiff's reputation  as the truth was that by th e time the notice was published the plaintiff had  ceased being an employee of the 1st defendant.   The  case of Wycliffe A. Swanya vs.   Toyota East  Africa Ltd & Another (2009) e KLR and provision s of the Defamation Act were referred to in support of the foregone arguments.  The 4th defendant first referred to extracts  for the book entrusted Gatley on Libel and Slander, 12th Edition, paragraph 16, 17 in buttressing the argument no liability would attach on a government authority by didn't of qualified privilege.   The cases of Shah v. Uganda Argos (1972) EA  80 and Nation Newspapers Ltd vs. Gibendi (2002) 2 KLR 406 were  also referred to in  disposing the  plaintiff's claim against the 4th defendant.

78. The 4th defendant was categoric that the plaintiff was not entitled to any damages as he had failed to prove his case in law.   It  refereed to the case of Miguna Miguna vs.   Standard Group Limited  & 4 Others (2016) e KLR and that of Mburu  Njuguna  Thungu vs. Ayub Waignajo Noroge  Civil Appeal No. 215 of 2008 (unreported)where the  the plaintiffs failed to prove damage  accordingly. It was however submitted that if any liability is attached to the defendants too as  lump-sum award of Kshs. 500,000/= for costs general and exemplary damages would suffice and that because  the 1st defendant had execute d an Indemnity Form  with the 4th defendant, fresh sums, if found to be payable, ought to be borne by the 1st defendant only.

79. The 4th defendant however called for the dismissal of the plaintiff's case with costs.

Analysis and Determination

80. I have carefully considered the pleadings filed by all the parties in supportive of their respective cases, the Witness Statements filed, the evidence as tendered during the trial as well the detailed written submission filed by the parties in this case.

81. Since there was no commence on the issues for determination by this court, I humbly frame the issues for determination in the matter as follows:-

i) Whether the  impugned public notices published on the 26th September, 2014 and 28th September, 2014 respectively of and …... the plaintiff are  defamatory of the plaintiff either in their rational and ordinary meaning;

ii) Whether malice was proved in publishing the impugned notice;

iii) Whether the plaintiff proved his case and if so whether he is entitled to any remedies;

iv) Whether  the 1st  Defendant Counter-claim against the plaintiff was proved and if so whether  the 1st defendant is entitled to any remedies;

v) Costs.

82. I will henceforth deal with each of the above issues separately and as under:-

i)Whether the impugned notice defamed the Plaintiff

As a starting point, it is important to note that  the  Constitution of Kenya provides for rights and freedom which have a bearing on the law of  defamation.   Those constitutional provisions have been well expounded in many judicial decision including  the case of Phineas Nyagah v. Gitobu Imanyara (2013) e KLR and that of Gideon Mose  Onchwati v. Kenya Oil Company Ltd & Ano' (2015) e KLR among others,

84. In the case of Phineas Nyagah  (supra) my brother  Learned Judge G. V. Odunga had the following to say on the issue; of which this court fully agrees with:-

“15. ... Under Article 32(1) of the Constitution, is clear  that every person  has the right to freedom of conscience, religion, thought, belief  and  opinion and further provides that the freedom to express one's opinion is a fundamental freedom.  Under Article 33 (1) (a)  every person  has the right to freedom of expression, which includes freedom to seek, receive or impart information or ideas. However, clause (3) provides that in the exercise of the right  to freedom of expression, every  person shall respect the rights and reputation  of others.    This, in my  view, is the constitutional  fulcrum o f the law of defamation.   Accordingly, the law  of defamation is not  just anchored on a  statutory enactment under the Law of Defamation Act but has been given a constitutional  underpinning as well.   In a claim predicated on the  tort  of defamation the Court is therefore  under a  duty to balance  the public interest with respect to information concerning the manner  in which  public affairs are being administered with the right to protect the dignity and reputation of  individuals.”

85. And, on an equal footing Hon. Aburili, J in Gideon Mose (supra) rightly stated that:-

“...the court in denting defamation cases must balance the provisions of Article 33, 34 and 35 of the Constitution, dealing with the  freedoms of expression and media freedom and the individual's right to access information on one hand and Article 28 in respect of  the inherent dignity must be respected and protected....”

86. From the reading of the Article 33 and 34 of the Constitution as read together with Article 27 (a) of  the Constitution, it is clear that the freedom of expression and of the media is guaranteed is not absolute.   Clearly  those rights are subject to clear limitation as spelt in law.

87. The foregone then truly calls for a Court of law when dealing with an aspect of defamation to act a fulcrum in balancing the two aspects of the constitutional expectations.

88. That therefore brings us to the arena of  understanding exactly defamation is all about.  Again a lot has been said in scholarly writings as well in decided judicial decisions  on the subject of defamation and courts can today say with precision that defamation is a  tort  that is define as the publication of a  statement which tends to hurt a person in the  estimation of the right- thinking members of the society  generally o r which tend to make him  be shunned or avoid.

89. Odunga, J in the case of Phineas Nyagah (supra) stated that “The defamatory Statement is one which has  tendency to injure the reputation  of the person to whom it refers by lowering him in the estimation of the right  thinking members of society  generally and in  particular to cause him to be regarded with feelings of hatred, contempt, ridicule, fear, dislike and disesteem and  typical examples are an attack upon the moral character of the Plaintiff attributing him to any form of  disgraceful  conduct   such as crime, dishonesty cruelty and so on”   Kuloba J (as he then was) in the case of  J. Kudwoli (supra) in a judgment delivered on 11th March 1993 had the following to say about the  tort of defamation:-

“Defamation  is the publication of a statement which tends to lower a person in the estimation of right -thinking members of society generally, or which tends to make  them  shun or avoid that person....”

A defamatory imputation is one to a mem'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 proffession or to  injure his financial credit....”

90. On the other hand, Halbury's Laws Vol. 28 4th Edition paragraph 10 P7 defines a defamatory statement as:-

“Is a statement which tends to low a person in the estimation of right – thinking members of society generally or to cause  him to be shunned or avoided or to expose  him to hatred, contempt or ridicule or to convey an imputation on him disparaging or imputation to him in his office, proffession, calling, trade or bushiness.”

91. I believe I have said enough on what the tort of defamation is all about. However if one is in still doubt, the holding of the British Columbia Supreme Court in Murphy v. Ha March (13 DLR 3d 484) settles it the following manner:-

“Defamation is where a shameful action is  attributed to a man (he stole my purse),  a shameful character (he is dishonest), a avails of prostitution) or a shameful  condition (he has small pox). Such words  are considered defamatory because they tend  to bring the man into hatred, contempt or  ridicule.   The more modern definition  of defamation is words tending to lower  the plaintiff is the estimate of right thinking members of the society generally.”

92. There are two types of defamation – libel and slander.  Libel, which is defamation crystallized into some permanent  form, is actionable per se and is also  a criminal offence whereas slander, which is  normally conveyed by some transient method of expression, is only a civil ming.   However, both libel and slander are meant to present  one's reputation from false and d........ remarks.

93. The elements of the tort of defamation are  equally  well settled.  For a litigant to succeed in a claim of defamation,  the   following elements must be proved in the affirmative:-

a)That the Statement is defamatory;

b)That the Statement refers to the Plaintiff;

c)That the Statement was published by the Defendant;

d)That the Statement is malicious.

94. At this point in time, I will deal with the first three elements and that issue of malice shall be  dealt with later in this judgment.

95. I have already reproduced verbatim the contents of the notices which the plaintiff claim to have defamed him in the foregone parts of this  judgment.  It is now for the court to  determine whether to said statements ha d the  effect of lowering the reputation of the plaintiff in the eyes of the right thinking members of this society generally.  In a case of libel, like the one before court, a court has to fully address its mind on the entire  Statement(s) complained about and contempt to see that statements (s) though the eyes of  reasonable right-thinking members of the Society  generally.  Unless in cases who immendo  has  been pleaded  in the pleadings, a court  has to attach the ordinary and natural  meaning to the word in the Statement in determining  if or not such Statement(s) as injuries to the reputation of the Plaintiff.

96. Hon. Kuloba, J (as he then was) in the Kudwoli's Case dealt with the aspect of who a reasonable man is in the context of a defamation claim.   The Learned Judge expressed himself, and so  rightly, that:-

“This Standard rules  out extremeness at either pole; embracing neither a genius nor an idiot, neither a fanatic nor a faddist, neither a walking enloparedia nor an  illiterate.   He is simply a fair – minded person and  not one with a morbid a unduly suspicious mind which must  discover defamatory imputation in everything published.   One with impervious inteller is excluded.   The test of  reasonable which gushes and directs the court in deciding whether the matter carries a defamatory imputation requires  involving ordinary intelligence, nor the  intelligence of persons setting  th... to work to deduct some  unusual imputation might succeed to discover.  In applying this test:-

“the judge ought not to take into account among mere conjectures which a person reading the document might possibly form (PW Lord Selnorne in Capital and Conus Bank b. Henty (1882) 7 App. (as 741; and see Pw Brett, J in Hent v. Goodlake (1973) 43 LJCP 54 AT p. 56.  The court will reject meanings which can only emerge as the product of some strained or forced or unreasonable with pretation (See Lord Moris in Jones v. Sixelton (1963)  1WLR 1362 at P. 1370; And,

“It is unreasonable that, where there are a number of good interpretation the only bad one should be sieved upon to  give a defamatory sense to the  document” (per Brett, LJ in Corporal  and Countries Bank v. Herty (1880) 5 CPD 530 at P. 54”)

If  word conveyed a defamatory imputation to those to whom they were published, but would not have done so to a reasonable man, they are not defamatory.   The mere fact that the hearses or readers understood the matter in a defamatory  sense does not make it  defamatory unless they were reasonably  justified in so understanding it...”

…..In looking for the meaning of the matter complained of, there is always  one rule to follow.  It is this, that it is necessary to consider not only the very matter of which the plaintiff complains  alone; it is  necessary to take into account the contest of the matter as a whole, and the mode of publication. The entire writing, conversation, or picture, must be construed in its setting as a whole.   Thus, a plaintiff cannot be generalized to select  an isolated passage or a positive  in a publication out of its context and  complain of that alone  if other parts or the rest of the publication issued a different light on the matter  sieved upon. You must look at thew whole publication to see whether it was calculated to injure the plaintiff's reputation.....

….The question is always whether the whole publication, taken together, is injuries to the reputation o f the  plaintiff.   The defamatory  string of a matter may  be removed by that which surrounds it.... As  the wise say, the bane  and antidote must be taken  together......

...A publication may be defamatory upon the face, or it may carry a  defamatory meaning only the reason of extracts  circumstances or facts passing  beyond the general knowledge of  those who may sense it.  Some  words or picture may mean nothing or are innocent to one hang only  a general knowledge .   Extract facts coming to light may cause the matte r to give a meaning to those who know them which is not the one appearing on the face of it.”

97. Going back to the impugned notices, the plaintiff was cross -examined by all the Defendant's Counsel at length on their contents.   There is no doubt that the notices referred to the plaintiff and  that the plaintiff's photograph and his national identity card  number appeared as well.  Further,  there is no doubt as to who published  the notices.   The 1st Defendant's witness was very  clear that the notices were authorized for  publication by the 1st defendant at a cost.

98. When the Plaintiff was cross – examined by Mr. Nyamurongi Counsel for the 2nd Defendant, he stated partly as follows:-

“....It is usual for people to cease employment.  Standard Group was to get in touch with me because of my position, cadre and credentials.  There is no standard rule that people of my  cadre ought to be  contacted before publication  unless it touches on one's integrity.   The publication was carried out in the Standard newspaper on 28/09/2014.   It is true  that by  then  I was no longer an employee of  the 1st Defendant.   It is true that I ceased to be an employee of the 1st defendant.  My resignation was a public as well as a private affair.  I did not publish any notice that I had ceased working with  the 1st Defendant.   All my duties were collative at the 1st defendant and I agree that I was a Senior employee at the 1st defendant and my discharge of the duties had great implication on the County Government.   On leaving employment I lost authority to transact on behalf of the 1st defendant.  It is true that if anyone transacted with me after I left employment with the 1st defendant in  relation to the business of the 1st defendant, that  will not bind the 1st defendant....”

99. On being cross examined by Miss Stausi Counsel for the 3rd Defendant, the plaintiff stated in part that:-

“It is the Governor who is the CEO and is the one accountable. My discharge of the  duties would bind the County Governor. The 1st defendant dealt with many stakeholders..”

100.  In further response to the 1st defendant's Counsel, the plaintiff stated that:-

“It was  indeed unfair for the 1st defendant to publish my name after I left.  That is  unusual as it had malice thereto.   I resigned on 25/08/2014 and I was formally released by the CEO Member of Finance on that very day.   I understand  that by the time of the publication there was a holder of office as  a Chief Officer – Finance …. Although the publication did not state that Iam a criminal. Telling the public not to transact with me sent all the wrong waves despite my heavy responsibility at the National Treasury...”

101. The plaintiff then clarified his real contention on the impugned notices on re- examination as follows:-

“My  concern on the advertisement is on the content......”

102.  By planing the impugned notice on one hand an d the foregone examinations of  the plaintiff on the other hand, the following issues can be  settled as true on their      false value:-

a) That by the time the notices were published the plaintiff had ceased being an employee of the 1st defendant;

b) That since the plaintiff had ceased to be an employee of the 1st defendant, he had lost the authority to transact any business on behalf of the 1st defendant.

c) That the plaintiff  having lost the authority  to transact on behalf of the 1st   defendant any liability  incurred by him would not be honoured by  the 1st  defendant.

103.  The Plaintiff however contended that the impugned notices injured his reputation on two  main grounds being:-

a) That it was not true that he was sin a position to incur    liabilities on behalf  of  the 1st defendant on his own;

b) That telling the public not to transact  with him sent wrong  signals despite his heavy responsibility at the National  Treasury.

104.   As to whether the plaintiff was in a position to incur liabilities on behalf of the 1st   defendant, I will  first revisit the contents of this Letter of Employment with the 1st defendant so as to  ascertain his duties. The said letter which  is dated 04/12/2013 spelt out the plaintiff's duties and responsibilities as follows:-

“3. Duties and Responsibilities

As Chief Officer, you will be responsible to the respective County Executive  Committee Member  for:-

The Administration of Finance Economic Planning Department

Implementation of Policies and Development Plans

Development and implementation of strategic  plans.

Formulate and implement effective programs to attain  Vision 2030 and Setting goals.

Promote National  Values and principles of  governance and  values and principles of public service.

Any other duties that will be assigned to you by your Supervisor from  time to time.

105.  The plaintiff was very categoric when he was examined -in -chief and stated that   he only used to discharge policy at the 1st defendant's Finance and Economic Planning Department as well as  theatric areas. However even a casual look at the  duties and responsible as contained in the Letter of Employment  clearly  reveals that the plaintiff dealt with other duties over and above the policy discharge. For instance he was further in charge of the administration of the   Finance and Economic Planning Department, he was to implement development   plans, to develop and implement strategic plans, to formulate and  implement  effective programs to attain Vision 2030 and its selective goals, to promote national values and principles of governance and values and principles of public service among other duties to be delegate to him by his superior.

106. From the nature of the duties and responsibilities which the plaintiff was called to discharge by duty, it is open that the plaintiff was  in a position to incur liabilities. That would happen in many ways including  but not limited to failure of the plaintiff to properly  administer the Department; failure to implement policies and development plans; failure to  develop and implement strategic plans, …..

107. Whereas the principal of collective responsibility  operates within a corporate  like the 1st defendant, the  nature of the plaintiff's employment went further to place personal responsibility on the plaintiff such  that the failure to filing and  appropriately  discharge those responsibilities would make  not only  1st defendant to main liabilities but also the plaintiff. I say  so being alive to the Constitutional expectations  placed upon every State officer in public office under the current Constitutional dispensation.

108.  Further, some of the plaintiff's duties were in a such  a manner that one cannot say with provision that they would cease immediately the plaintiff resigned from the  1st defendant's employment.   In saying so I have in mind causes of imputation  of  programs, policies and development plans moreso in respect to those relating at  dealing with the public at large.  An  example would be a situation where the  plaintiff developed  and was in the process of implementing  a certain programs to attain say Vision 2030 or any of the set goals immediately before tendering his  resignation.  In such a situation, not all those involved  in such a programme  would be aware of the  plaintiff's resignation and the possibility of the public continuing to deal with the plaintiff despite his  resignation cannot be said to be  remote.  That is  also  to say that the possibility of the plaintiff continuing to incur  liabilities on behalf of the 1st  defendant even after such resignation cannot be  said to be  that remote.   It has to be …..... noted that this court is not attempting to  say  that the plaintiff indeed went ahead to main such liabilities on behalf of  the 1st defendant after his resignation but that from the State of affairs at the  1st   defendant's Finance and Economic Planning Department and the position held by   the plaintiff, such possibility cannot be said to be in abstract.

109.  This court hence funds that from the duties and responsibilities bestowed upon the plaintiff and the effective discharge thereof, then plaintiff was in a position  to  make  the 1st defendant main liabilities even after tendering his resignation.

110.  As to whether informing the public not to transact with the plaintiff sent signals  despite the plaintiff's heavy responsibility at  the National Treasury, this court  settles that issue in the negative.  One basis of that finding has been land on the  proceeding issue on the liabilities. Further the notice was very clear that it  was and dealt with dealings at the 1st defendant and not otherwise.   I am not therefore  persuaded that the notices were a general calling to the  public not  to deal with   the plaintiff at all  since the same was limited to affairs within the 1st defendant.

111.  I will now determine  whether or not the plaintiff  suffered any injury to his  reputation.   It is not in doubt that the plaintiff is a  highly accomplished  Accountant and a holder  of a very serious position at the National Treasury.  As I stated elsewhere above, the  contents of his curriculum vitae remains  uncontroverted.  At the National Treasury the plaintiff deals with national matters  as opposed to when  he was in employment with the 1st defendant.   For instance the plaintiff is now heading all the District Treasuries Countrywide ; prepares reports to the  National  Assembly  Convenes the present Tender  Committee    nationally among many other responsibilities

113. The plaintiff confirmed in evidence that his recall to the National Treasury after resigning from the 1st defendant's employment did not  occasion him any  harm as he still held his job group before his Secondment to the Transition Authority.

114. The plaintiff also contended that upon the publication of  the impugned notice his family  members, friend and professional colleagues inquired from him as to what was wrong. The plaintiff however did not bring any of his family members orprofessional colleagues to so testify.   On cross -examination the plaintiff also admitted that he had no such SMS or emails in confirmation thereof.

115. But there was PW2 who was the plaintiff's friend and as former school mate.  He  was an Environmentalist and had known the plaintiff for 24 years.  Having  known the plaintiff as a hardworking  man  and a very  dedicated Accountant, he  wondered why he had been put up in the newspapers and  according to him the   notice having stated that the plaintiff was not authorized to transact  any business  on behalf of the 1st defendant paraded  him as a criminal would be shunned and  not allowed to hold any office.

116.  PW2 had also known that the plaintiff was not comfortable at his workplace as he had earlier on  complained to him about several things which  were not done in  the right manner and amounted to mega corruption scandals. That was confirmed by the plaintiff on re-examination. …. with such background, it was very easy and possible for PW2 to read and deduce more from the notice other than  someone who knew nothing about the plaintiff's employment background with the 1st defendant.  PW2 however agreed that the plaintiff had a duty to publish its dealings and that whenever an employee eases  employment such an employee  loses  the authority  to transact any business on behalf of the employer and as such  any liabilities that may arise would not be incurred by the employer.

117.  Although PW2 did not see any problem with the carrying out of an advertisement  that the plaintiff, as a  civil servant, had ceased employment with  the 1st  defendant, to him the notices jeopardized the plaintiff's future employment prospects as some employees  would refer to the notice and doubt  the plaintiff's credibility.  As a have already  dealt with the issue as to why the 1st defendant was  justified to inform the public of  the plaintiff's exit from its employment moreso   because of the plaintiff's unique  position and given  that the plaintiff retracted a lot with the public  and other stakeholders, the contention by PW2  that the notice   would make future  employers to doubt the plaintiff's credibility may  be for- fetched.   I say so because  the trend nowdays when it comes to retirement  of staff  especially in Senior positions involve very robust audit of such persons in all    arenas of life.  That means whether or not  a notice is put up in the public  about  a  person having ceased employment, still any prospects employee would, more  certainly, check up with  the former employers.

118. Hitherto, PW2's deduction was more speculation and without any reasonable basis  as no evidence was even tendered to that effect or to demonstrate that at least the plaintiff had been taken through a certain  process or was taken task by his  current employer  own the publication.  As I earlier on  noted PW2 read much more from the publication because of the special knowledge he had of the  relationship between the plaintiff  and the 1st defendant but I highly  doubt  that any  other person without such background information may easily come up with such  an opinion.  According to Hon. Kuloba, J in the  Kudwoli's case (supra), PW2 may  properly fit  the description of those in a special class of persons as opposed to with general  knowledge.

119. My attention was further drawn to the provisions of Sections 7 (1) and 9 of the  Defamation Act.  Section 7 (1) of the Act states as follows:-

“Subject to the provisions of this  section, the publication in a  newspaper of any  such report or other matter as is mentioned in the Schedule of this Act shall be privileged  unless such  publication is proved to be made with malice.”

Section 9 (Scheduled 1) of the Defamation Act so states that:-

“A copy of fair and accurate report summary of any notice or other matter issued for the information of the public  by or on behalf  of any department of the government, Minister, local authority or gazetted police officer.”

120.  I have carefully addressed my mind to the totality of the contents of the impugned  notices alongside  the evidence and the law.  There is no doubt that from the face  of the  impugned notice and as confirmed by the plaintiff and PW2, the said  notices were truthful and would normally be published whenever an  employee  ceases to work with an employer.  The notices were hence  true in substance and  would be easily understood as such by the general public.  That  being so and in view of the fact that the 1st defendant is called up by the Constitution to  entrance national values under Article 10 of the Constitution including transparency in its  operations and given that the plaintiff occupied a very Senior position with heavy  responsibility and  interacted with  the public and other stakeholder so  closely, I find that there was a reasonable justification in the 1st defendant so informing the  public of what had  transpire  between the plaintiff and eh 1st defendant,  which it  did through the publication.

121.  A wholistic look of the statements in the impugned notice and in the  ordinary and  general meaning of the words used would lead one  to find some difficulty that the notices had not effect of paraging the plaintiff as a criminal, crooked and corrupt,  one who would not be trusted with public finances, was guilty of transacting unlawful business, was undeserving of holding any public office, nor wanting in  gratitude, a social misfit or a scoundrel and a  rascal.   I think when one decides to make  any of such deduction from such notices in view of  the foregone evidence them such a person may  either not be honest with him/herself or may  be aware of   the employment relationship between  the plaintiff and the 1st defendant. However a reasonable and  right-thinking member of the general public is not  likely to attach such negative  connotations to the impugned notices.

122.  In crystallizing the finding that the contents of the impugned notices  were not  defamatory  of the plaintiff's reputation, I am in full agreement with the Learned Judges of the Court of Appeal for Eastern Africa in the case of Shah =vs=  Uganda Argos (1972)  EA  80  that:-

“... there is a moral and public duty to publish government accountants, provided that the matter  concerned is of public interest  and for the  public benefit and that the handing was  correct and the article on the whole reasonably  accurate  paraphrase of  the account...”

123. Suffice to say that in Kenya today, the foregone duty to the public  is in the  Constitution  and not by dist..... as long as such a duty is discharged within the constitutional parameters.

ii) Whether there was malice in publishing the impugned notice.

124. When I was considering the first element of the tort of defamation, I listed down  the ingredients of the tort  of defamation in paragraph 93  above which ingredients  included that of malice. Whereas the issue  of malice would ordinarily  be   considered  alongside the other elements, I have  decided to deal with  it  separately in this judgment  due to the weight it carries in Clause of defamation.

125.  In so doing, I start by reproducing what  my brother Odunga, J said in the PhineasNyagah Case (supra) which position I fully concur with:-

“18. .. 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 led  to an inference or malice but the law does not weigh in a hair balance and it does not follow merely because the words  are excessive, there is therefore malice.   Malice may also be  inferred from the relations between  the parties before or after publication or in the  conduct of the defendant in the course of the proceedings.  Malice can be founded in  the publication itself if the language  used is utterly beyond the facts.  The failure  to inquire into the  facts is a fact from which inference or 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.  See Godwin Wachira  vs. Okoth [1977]KLR 24; J P Machira vs. Wangethi Mwangi (supra).”

126. The plaintiff contended that the 1st defendant acted malicious  in publishing the  impugned notice and had a clear notice to disparage the plaintiff.   To demonstrate that, the plaintiff argued that the 1st defendant intentionally ignored following facts:-

a)  That the  Plaintiff  had resigned  on  25th August 2015 and the County Government had  accepted his resignation.

b) The Plaintiff was not involved in incurring liabilities for the  County Overpayment.

c) The Plaintiff had not incurred any liability for the County    Government after he had resigned and neither had the County Government received any claim by a third party of any liability incurred through the Plaintiff.  Mr. Rusana  confirmed that the County Government did not receive any    claim by a third party as a result of the Plaintiff's.

d)  That the County Government had not communicated  the decision to terminate the Plaintiff's probation by the time of    the publication.”

127. It was the plaintiff's further contention that malice was demon started on the part of the 1st defendant in taking close to one month after  the resignation of the   plaintiff to publish the impugned notices further to the position that the  plaintiff was involved in disciplinary issues that  led to  chaos  in the County Assembly which  issues were a fabrication of the 1st defendant. The  plaintiff further glared  malice from the 1st defendant's witness insistence  that there was bad-blood between the 1st Defendant and the plaintiff which  issue remained unknown to the  plaintiff and untrue and that the 1st defendant even denied the existence of some    letters written by its officers.

128. The 1st defendant denied acting maliciously in any way in handling the issue incon.... I will however agree with the plaintiff that the 1st defendant failed to prove that   there were any disciplinary  proceedings against the plaintiff or at all and that  the 1st defendant indicated the date of the plaintiff's resignation as  11/09/2014 instead of 25/08/2014. That being so the plaintiff admitted and so informed the  court that his working relationship with the 1st defendant was not cordial as the 1st defendant's Governor ran the affairs of the 1st defendant as such haphazard  manner and another regard to law and  procedure further to engaging in massive corruption dealings of which the plaintiff was  not prepared to swear an affidavit.  The plaintiff then regarded on matters of principle.   It is no doubt that the plaintiff must have come into  logger heads with not only the 1st    defendant's Government  but also with any such officer who  would have endeavoured to support the 1st defendant's Government in his way of discharging     his duties as such.   The  plaintiff may  have ended up making enough “enemies”  so to say going by his allegation that the 1st defendant's Government  had employed so many of his relatives without regard to the law and procedure.

129.  From that background,  this court is not convinced  that the 1st defendant's  giving  of a wrong date of resignation and alleging that there were  discrepancy proceedings against the plaintiff  were a demonstration of malice. Whereas those relationship between the plaintiff and 1st defendant had broken down ; it remained a fact  that the plaintiff had truly resigned by the 11/09/2014 and in all reasonable  doubts I find it difficult to hold that the giving of an incorrect  date when the plaintiff ceased employment with the 1st defendant to a  demonstration of malice. I also take a similar position in respect to the period the 1st defendant took in  publishing  the notice.  The period was  almost one month.  The 1st defendant is a body corporate in law and a government under the Constitution. This  Court  therefore takes judicial notice  that the 1st defendant it has elaborate  systems in  coordinating all its affairs and good  practice call for adherence thereto.  I do not  find that the period of one month is  such inordinate bearing it in mind that the institution o f the 1st defendant had to organize and get all articulations  and  clearances, liase with the publishers and  sign  contracts of indemnity prior to running of the  publication in the print media.

130.  Since the other issues on the plaintiff concerning liabilities have already been devolved, I find that the totality of the foregone to be that the plaintiff has failed to demonstrate  that the 1st defendant acted with malice in dealing with the  issue at hand.

131.  As against the 2nd, 3rd and 4th defendants, the plaintiff submitted that each of  the defendants acted maliciously,  recklessly and negligently in not  seeking to establish the truth or otherwise of the allegation or the  statements contained  in the matters before the publications having already decided that the notices  contained true statements and the plaintiff and PW2 having confirmed that such notices were ordinarily issued and published in such circumstances as those that  prevailed between the plaintiff and the 1st defendant,  I find  that there was indeed  nothing to  trigger the defendants at any of them carry out an inquiry or reconfirm the Statements with the plaintiff put to publishing them.  Further the language used  in the business was untruly beyond or disappointment threat to the facts.  Lastly, there is no  evidence that the defendant's and each of them  knew that the Statements as contained in the  impugned notices were false and that they did not care to accuracy if truly that was the case.  I hence find the 2nd, 3rd and  4th defendants in guilty of malice as well.

iii) Whether the Plaintiff proved his case as against  the defendants and/or any of them.

132.  The foregone analysis and findings are very  clear that the plaintiff has not  demonstrated the elements of defamation in his favour.   The plaintiff has failed to prove any of his three cases against  the Defendants or any of the defendants. Each of the plaintiff's cases is hereby dismissed.

iv) Whether the 1st defendant proved its  counter-claim against the plaintiff

133.  The 1st defendant filed its statements of Defence and Counter-claim in all the  causes of action.  The Counter-claim is hinged on the contests of paragraph 9 of the Statements of  Defence and Counter-claim where the 1st defendant pleaded as  follows:-

“9. The 1st defendant denies the contents of paragraph 11 & 13 of the plaint, the Notice was made in good faith as stipulated in the constitution  on matter of public interest, it's  the plaintiff whose action in dragging the 1st Defendant in court actuates malice.

Particulars of malice by the Plaintiff

a)  Failure to disclose the facts that there were earlier cases, against him whereas office of the county public board in exercise of the powers conferred on them invoked Section 59 (1) (b) and Section 59 (1) (c) of the County Government  Act, 2012 read together with articles 235 (1) (b) and 235 (c) of the constitution of Kenya, 2010, whereas, the Board terminated the probation period  of the plaintiff, which aggravated the resignation thereof.

b)  Failure to disclose the fact that there  were antic pated disciplinary action against the plaintiff  whereas Migori County Assembly invoked consequently albeit session no. 39  under Order 8  and the  plaintiff was arrested by the Sergeant – At – Arm when the plaintiff kicked the main door and forced  himself out.

c)The plaintiff wants to portray the 1st defendant in bad light and demand for compensation unfairly.

134.  The 1st defendant then proceeded on to pray for judgment against the plaintiff for the following:-

a)  Unconditional apology to 1st defendant

b)  General Damages

c)  Costs of the suit

d) Any other relief  this court deem fit to grant in the circumstances.

135. The 1st defendant through the additional Statements of its witness one Christopher Odhiambo Rusana filed on 25/06/2015  in furtherance of the above stated as follows:-

“14. That having read paragraph 6b of  the statement of Boniface Otieno Obonyo fails to  meet the threshold because at the time of recording it he was not privy to what had earlier  transpired between the plaintiff herein and the 1st defendant more particularly  the issues of  earlier  gross misconduct because a person of good moral must work  intenderm with chapter 6 of the Constitution.

15. That Plaintiff ought to apologize, to the 1st defendant for failing to disclose the material facts to court hence be  compelled to compensate the 1st defendant with general damages.”

136. The said 1st defendant's witness further reiterated the foregone when he testified before court and pray for judgment against the plaintiff as prayed in the counter-   claim.

137.  This court  has elaborately dealt with the ingredients of the tort of defamation hereinabove at length. I have in particular  dealt with the types of defamation and that they are two of them being slander and libel.   By looking at the 1st defendant's contention, this court  fails to understand which type of defamation    the 1st defendant based its claim on. Whereas the claim is not libelous, it is equally not slanderous since the 1st defendant was very clear  that the basis of its cause of action is  that the plaintiff “.... ought to apologize to the 1st defendant for failing to disclose the moral facts to court hence be compelled to compensate the 1st defendant  with general damages.”

138. With the greatest respect to the 1st defendant , the foregone is and cannot be a basis of a cause of action on defamation.  One of the obvious reasons  being that defamation deals with the publication of untrue statements that tended to lower the reputation of a person.  Going by the 1st defendant's position it goes without say that if  at all the 1st defendant was defamed, then it was so  defamed through  the plaintiff's pleadings in court  and not in anyway before that.

139.  The 1st defendant has hence not satisfied any of the ingredients of the tort of defamation against the plaintiff in any  of the Causes of action and equally its  counter-claim fail.

140. Having found that none of the suit s in the matter are  successful, the law still  requires me to assess damages I would have awarded the parties had they or any  of them succeeded.

141  In the words  of Ochieng, Ag. J in the case of MIKIADI vs. KHAIGAN andAno. (2004) e KLR 496, the J has the following to say:-

“A successful plaintiff in a defamation action is established to remain as general compensation damages such as will compensate him for the wrong he has suffered.  That  such must compensate him for the  damages to his reputation, vindicate his  good name and take account of the distress,  ...and limitation which the defamatory  publication has caused.  The court must  take the necessary precaution to ensure that whatever award it gives to a successful plaintiff is generally in the costs that courts have been awarding....”

142. The  Court of Appeal has also and on several instances added its sound voice to   the issue of assessment of damages in defamation claims.  To  put only but the    cases of Johnson Evan  Gicheru vs. Andrew  Muton & Ano', CA No. 314  of  2000 (UR)which decision has been widely followed not only by the Court of  Appeal but also by the High Court, the Court of Appeal held that:-

“The latitude in awarding damages in an action for libel is very wide, the case of TANGANYIKA TRANSPORT CO. LIMITED versus EBRAHIN NOORAY (Supra) PRAUD versus GRAHAM 24 Q.B.D. 53, 55 that in an action of libel the trial court in assessing damages is entitled to look at the whole conduct of the defendant from the time the libel was published down to the time the verdict is given.   It may consider what this conduct has been before action, after  action and in court during the trial”; the case of BROOM VERSUS CASSEL & CO (1972) A. C. 1027 where in the House of Lords stated that:-

“In action of defamation and in any other actions where damages for loss of reputation are involved, the principle of restitution in integrum has necessarily an even more highly subjective element such actions involve a money award which may put the plaintiff in a purely financial sense in a much stronger position than he was before wrong.  Not merely can he recover the estimated sum of  his past and future losses, but in case the libel driven underground emerges from its lurking place at some future date, he must be able to point to a sum awarded by a jury sufficient to convince  a by slander of the baselessness of the charges; lastly the case of UREN VERSUS JOHN FAIRFAX & SONS PTY LIMITED 117 C.L.R. 115, 150:  Where in Windeyer J made observation that:-

“It seems to me that, properly speaking a man defamed does not get compensated for his damaged reputation.  He gets damages because he was injured in his reputation that is simply because he was publicly defamed.  For this reason, compensation by damages operates in two ways-as a vindication of the plaintiff to the public and as consolation to him for a wrong done.  Compensation is here as solatium rather than a monetary recompense for harm measurable in  money.”

143. The Court further …. the factors for consideration regarding quantum of damages as follows:-

“1. 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.

2. 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.

3. Matters ending to mitigate damages, such as the publication of an apology.

4. Matters tending to reduce damages.

5. Vindication of the plaintiff's reputation past and future.”

144. Again the law in further guidance to the assessment of damages in defamation claims states in Section  164 (1) of the Defamation Act as follows:-

“16A (I) in any action for libel, the court shall assess the amount of damages payable in such  amount as it may deem just:

Provided that where ….. the libel is in respect of an offence punishable by imprisonment  for a term of not less than three years the amount assessed shall not be less than four hundred thousand shillings.”

145. The plaintiff  submitted that this court is to assess damages in respect to each suit as each publication constitutes a separate and distinct cause of action.  Plaintiff relies on main decision and  prayed for the sum of Kshs.  5M on general damages, Kshs. 5M on account of exemplary damages and Kshs. 500,000/= in lieu of an apology in each suit with costs and interest.   The second defendant  also relied on several decision and proposed a global award of Kshs. 40,000/= as minimal damages without any  aggravated damages as no basis had been  laid.  The forth  Defendant submitted that the sum of Kshs. 500,000/= would suffice as both  general and exemplary damages.

146.  I have considered the submissions on quantum with care and caution as well many other persons decisions on the matter and in taking into account the circumstances  of the cases as well as the status and reputation of the  plaintiff and the 1st   defendant, I would have assessed  damages as follows:-

a) To the Plaintiff

A global sum of Kshs. 6,000,000/= on general damages.

A global sum of Kshs. 2,000,000/= on exemplary  damages;

Costs of each suit

b) To the 1st defendant

A global sum of Kshs. 500,000/= on general damages.

Costs of each suit

146.  For avoidance of doubt, had the plaintiff surrendered  in its claim against the Defendants, I would have however entered judgment against the 1st defendant  only on account of the Indemnity the 1st defendant executed in favour of each of the 2nd, 3rd and 4th defendants regarding the publication  which is the subject of these suits. Needless to say the Indemnities are part of the record and were indeed properly and truly admitted to by the 1st defendant's witness when he testified before court.

Disposition:

147.  The above analysis renders this court to make the following first orders in the matters:-

a)The plaintiff's suits Migori HCCC No. 99 of 2014, HCCC No. 10 of 2014 and HCCC No. 11 of 2014  be and are hereby  dismissed;

b)  The 1st defendant's Counter-claim in the three suits Migori HCCC No. 99 of 2014, HCCC No. 10 of 2014 and HCCC No.  11 of 2014  be and are hereby  dismissed.

c) Since the plaintiff's suits as well as the 1st  defendant's Counter-claim have been unsuccessful,  the plaintiff and the     1st defendant shall each bear their own costs of the  the three     suits.

d)  The plaintiff shall however bear the costs  of the three suits in respect to the 2nd, 3rd and 4th Defendant herein.

These are the orders of this court.

Dated and SIGNED at MIGORI this 24th day of January,  2017.

A. C.  MRIMA

JUDGE