Jimi Richard Wanjigi & Irene Nziza Wanjigi v Stephen Gitagama,Tom Mshindi,Michael Ngugi & Nation Media Group Limited [2019] KEHC 11275 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO. 112 OF 2018

JIMI RICHARD WANJIGI.....................................1ST PETITIONER

IRENE NZIZA WANJIGI.......................................2ND PETITIONER

VERSUS

STEPHEN GITAGAMA.........................................1ST RESPONDENT

TOM MSHINDI......................................................2ND RESPONDENT

MICHAEL NGUGI.................................................3RD RESPONDENT

NATION MEDIA GROUP LIMITED...................4TH RESPONDENT

JUDGMENT

The parties

1. The petitioners herein describe themselves as adult Kenyan citizens living in Nairobi City County.

2. The 1st respondent is the Acting Chief Executive Officer of the Nation Media Group Limited, the 4th respondent herein, a limited liability company incorporated under the Companies Act and the parent company that publishes the Daily Nation Newspapers, a publication with national and global circulation.

3. The 2nd and 3rd respondents are the Editor in Chief and Director in Charge of Advertising respectively of the 4th respondent.

The petitioners’ case.

4. On 27th March 2018, the petitioners filed this petition against the respondents claiming violation of their fundamental rights and freedoms under the Constitution seeking the following orders:

i. A declaration order that the actions of the respondents violated the petitioners’ rights under Articles 28, 29 and 31 of the Constitution.

ii. A declaration order that the actions of the respondents were in violation of Articles 33 and 34 of the Constitution.

iii. An order that the respondents pay the petitioners compensation for the violation of their fundamental rights and freedoms.

iv. An order that the respondents pay the petitioners damages for the constitutional torts and acts of negligence committed against them.

v. A prohibitory order prohibiting the respondents from further violating the petitioners fundamental rights and freedoms.

vi. A prohibitory order prohibiting the respondents from further publishing private and family details of the petitioners including those of their children;

vii. Costs of this petition.

viii. Any further relief or orders that this honourable court may deem just and fit to grant.

5. The petitioners’ case is that on 7th February 2018, the respondents through the 4th respondents flagship publication, the Daily Nation published or caused to be published, a grotesque and chilling death warning and announcement of the 1st petitioner which publication included a photo caption of the 1st petitioner that was prominently displayed on the obituary section of the 4th respondent’s newspaper.

6. The petitioners state that the publication included the private details of the petitioners’ family life, their children and the schools that they attend, place of residence, and other personal and private information of the petitioners and their family members. (A copy of the said publication was attached to the 1st petitioner’s supporting affidavit and marked as annexure “JW-2”).

7. They further state that in making the said publication, the respondents were communicating a death warning, issuing a promise to kill the 1st petitioner and offering for public display, personal and private details of the petitioner’s family with a view to further incite criminal acts against the petitioners and their children.

8. They contend that the respondents’ acts were accentuated with malice and intention to drive up the sales of their flagship publication through the public reaction that the said publication was going to generate. They further state that the publication was designed to psychologically torture and torment the petitioners’ family members and that in making the publication, the respondents cited negligently and intended to violate the petitioners’ fundamental rights and freedoms.

9. The petitioners further state that the impugned publication treated the 1st petitioner in a non-dignified manner as it reduced him to a dead body when he was still alive.

10. At the hearing of the petition, Mr. Otieno learned counsel for the petitioners invited the court to consider that there has never been a prominently published death promise such as the one that was referred to in the petition. Counsel submitted that the publication violated the petitioners’ the right to privacy, the right to freedom from torture, right to human dignity under Articles 31, 29 and 28 respectively.

11. Counsel submitted that the factual expositions of the petition were not disputed as the respondents had expressly admitted that the said publication was made in the obituary section of their newspaper.

12. On the violation of right to privacy counsel submitted that by prominently displaying the details of the petitioners’ private residence and children, the respondents violated the petitioners’ right to privacy which right is intertwined with the right to dignity. For this argument, counsel cited the decision on the case of MWK & Another vs The Attorney General and Kenya Human Rights Commission Communication Authority of Kenya [2018] eKLR.

13. On the right to freedom from torture, it was submitted that the petitioners were subjected to psychological torture in the form of death promise which is a tactic that has been deployed successfully in other jurisdictions to warn people of their impending death. Counsel observed that the respondents had, in their own replying affidavit admitted that the impugned publication had caused pain and anguish to the petitioners, their family members and friends.

14. It was the petitioners’ case that having made such an admission, it was not open for the respondents to claim that the petitioners did not suffer any psychological torture. For this argument, counsel relied on the decision in the case of Samuel Rukenya Mburu vs Castle Breweries [2003] eKLR.

15. On right to human dignity, counsel submitted that the right is covered under Articles 10 and 28 of the Constitution and requires that every person be treated with dignity regardless of their status. He added that by publishing the impugned publication, the respondents committed an abhorrent act of reducing the 1st petitioner to a dead body that does not deserve any respect and is only fit for disposal through burial.

16. Counsel cited the case of Robert Ayisi vs Kenya Revenue Authority [2018] eKLR wherein it was held that the right to privacy is tied to the right to dignity. It was further submitted that the respondents breached the statutory duty imposed on them by the Constitution to respect the rights of others. Reference was made to Section 4 of the Media Council Act which requires the media to be accurate, fair, accountable and to respect the personal dignity of other people and that the failure to perform this statutory duty must not go unpunished.

17. It was submitted that having admitted that the impugned publication was made by them, the respondents cannot turn around and claim that the publication was done by a third party who did not benefit from the sales of their newspaper. Counsel objected to the production of the electronic evidence attached to the respondents’ replying affidavit on the basis that no appropriate certificate was attached to the said annexure to show the date when the same was obtained, the source of the information and the gadget used to obtain it as is required under Section 106B of the Evidence Act. He urged the court to strike out the annexures while relying on the decision in the case of Ndwiga Steve Mbogo –vs- IEBC & 2 Others [2017] eKLR.

18. On the prayer for award of damages, counsel referred to the decision on the case of Sir Richard Cliff OBE vs British Broadcasting Corporation & Another [2018] EWHC 1837 (Ch) wherein the factors governing award of damages were enumerated. Counsel urged the court to note, in determining the award payable, that the petitioners may have had to reinforce security measures in their home to ward off any threats and that the 4th respondent’s newspaper has a wide circulation both locally and internationally through the web.

19. Counsel maintained that the instant was not a defamation suit but one dealing with the violation of rights and breach of constitutional statutory duties. Counsel further urged the court to consider the novelty of the case and to take a note of the fact that the publication was made at a perilous time during the 2017 general elections when extra judicial killings were rampant.

The respondents’ case

20. The respondents opposed the petition through the replying affidavit of the 4th respondent’s Head of Legal and Training, Mr. Sekou Owino who avers that at no time did the respondents publish any death warning of the 1st petitioner as what was published on 7th February 2018 was an obituary expressed to be of one “James Richard Wanjagi” accompanied by the photograph of the 1st petitioner and adds that the advertisement was paid for and received from a member of the public who only identified himself as Jared.

21. He further states that the 4th respondent has a standard procedure through which advertisements, including obituaries, are placed in its Daily Newspaper and maintains that the said procedure was followed in the advertisement that is the subject of this petition. A copy of the receipt issued to the customer was attached to the replying affidavit as an exhibit.

22. He further states that while the information in the obituary published on 7th February 2018 appears to refer to the 1st petitioner and his family, the same would not have been immediately apparent to the 4th respondent’s employees because the 1st petitioner is famously known as “Jimi Wanjigi” and that the said employees are not generally expected to know/recognize the 1st petitioner’s appearance.

23. He further states that the private details of the 1st petitioner’s family were not made known to the public for the first time, through the impugned advertisement, as there were a number or previous news articles and the publications about the petitioners. He attached copies of the said publication to the replying affidavit as exhibits. He avers that upon realizing that the impugned advertisement was intended to give the impression that the 1st petitioner had died, the respondent tendered an apology to the petitioners and took urgent steps to correct the erroneous information by reporting the matter to the police for investigations and further, by publishing story in the Daily Nation of 8th February 2018 to give an account of how the advertisement ended up in their newspaper.

24. It is the respondents’ case that they did not instigate the publication of the erroneous obituary. They maintain that the petition does not disclose a violation of the petitioners’ rights. He also states that the allegation that the publication of the erroneous obituary was intended to drive the sales of the 4th respondent’s newspaper by generating public reaction is false as the 4th respondent did not derive any benefit from the impugned advertisement other than the payment made for the advertisement.

25. At the hearing of the petition Mr. Tugei, learned counsel for the respondents, submitted that the petition does not disclose a reasonable cause of action as the respondents had demonstrated that the impugned publication was a paid advertisement placed by one Jared for which the respondents could not be held responsible.

26. For this argument, counsel cited the decision in the similar case of James Kimeu Mulinge vs Nation Media Group C.A. 85 of 2017where the court held:

“Another matter of key concern to us is the fact that this was an advertiser’s notice, the identity of the person(s) who placed and paid for it remains unknown. A crucial question was posed by counsel for the respondent as to who was to benefit from this fictitious notice. The person who was to benefit from the notice is the one who paid for it. The two questions were nonetheless not answered but what is clear to us and perhaps to the trial judge, was the fact that the notice was published by the respondent as a paid advertisement and in the circumstances it was not within their remit to establish whether it was genuine or not……To that extent we agree with the learned Judge that the respondent published the notice innocently, believing it was a bona fide one and therefore cannot be said to have been driven by malice.”

27. Arising from the above cited case, counsel argued that where a media house is dealing with a paid advertisement, it is not within its remit to establish if the contents of the advertisement are true and that no malice can be inferred if the advertisement is published in good faith.

28. Counsel submitted that the instant petition does not meet the tests of constitutional petition as the petitioners did not state the provisions of the Constitution that have been violated, the manner of such violation, the nature and extent of alleged infringement and the individual respondents that had infringed their rights. Counsel argued that the petitioners needed to explain how the 1st, 2nd and 3rd respondents violated their rights considering that they are just a few of the 4th respondent’s many employees.

29. It was submitted that the petition lacks merit as the contents of the impugned publication are not attributable to the 4th respondent. Counsel observed that since the advertisement states that the 1st petitioner died on 30th January 2018 and 1st petitioner is a public figure, he could have in the intervening period before the advertisement was published engaged in activities to show that he was not dead and further, that it was most unlikely that anyone believed that the 1st petitioner had died.

30. For the argument that the petition does not particularize the manner of the alleged infringement, counsel cited the case of John Githinji Wang’ondu & 7 Others vs Coffee Board of Kenya & Another [2012] eKLRwherein the court observed:

Our courts have over the years established that for a party to prove violation of their rights under the various provisions of the Bill of Rights, they must state the provisions of the Constitution allegedly infringed in relation to them, the manner of infringement and the nature and extent of the infringement.”

31. On the claim that the petitioner’s right to dignity had been violated, counsel submitted that the right to dignity is a right of great abstraction that ought not to be invoked when specific rights giving effect to a particular aspect of application of the general right can be invoked. Reference was made to the decision in the case of Marilyn Muthoni Kamuru & 2 others vs Attorney General & Another [2016]e KLR wherein the court held:

“The right to human dignity us the foundation of all other rights and together with the right to life, if forms the basis of the enjoyment of all other rights. Put differently, if a person enjoys the other rights in the Bill of Rights, the right to human dignity will automatically be promoted and protected while it will be violated if the other rights are violated.”

32. On the right to privacy, counsel submitted that the scope of protection that those who move into the public sphere enjoy is less and less and that the details of the petitioners home and children were already in public domain and could even be accessed online.

33. On the right to be free from torture under Article 29 of the Constitution, counsel submitted that the apology that the 4th respondent tendered to the petitioners was not an admission that the petitioners suffered any psychological torture as the petitioners did not tender any medical evidence of such torture.

34. It was the respondents’ case that their right to freedom of expression and the media is protected under Articles 33 and 34 of the Constitution and that there was no failure in the pat if the respondents in the enjoyment of this right.

35. On the claim for damages for the violation of rights, counsel submitted that no damages should be awarded as the violations were not established but added that in making any such award, the court should consider the conduct of the 4th respondent upon realizing that the impugned advertisement was erroneous and the corrective measures it undertook to make good any loss or damage caused to the petitioners.

Analysis and determination.

36. I have considered the pleadings filed herein and the parties’ rival submissions together with the authorities that they cited. I find that the main issues for determination are whether the 1st, 2nd and 3rd respondents have been properly sued in this proceedings, whether the petition meets the threshold of a constitutional petition and whether the petitioners are entitled to the orders sought in the petition.

37. Article 22 of the Constitution grants every person the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened while Article 258 of the Constitution provides that:

Every person has a right to institute court proceedings, claiming that this constitution has been contravened, or is threatened with contravention.

38. It is now an established principle of law that anyone who wishes the court to grant a relief for violation of a right or fundamental freedom, must plead in a precise manner the constitutional provisions said to have been violated or infringed, the manner of infringement and the jurisdictional basis for it. This was stated in the case of Anarita Karimi Njeru v Republic (No.1)-[1979] KLR 154where the Court stated;

“if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important(if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.”

39. This principle was emphasized by the Court of Appeal in Mumo Matemo v Trusted Society of Human Rights alliance [2014] eKLR,where it stated that:

“…the principle in Anarita Karimi Njeru (supra) underscores the importance of defining the dispute to be decided by the court… Procedure is also a handmaiden of just determination of cases. Cases cannot be dealt with justly unless the parties and the court know the issues in controversy. Pleadings assist in that regard and are a tenet of substantive justice, as they give fair notice to the other party. The principle in Anarita Karimi Njeru (supra) that established the rule that requires reasonable precision in framing of issues in constitutional petitions is an extension of this principle”

40. In the instant case, the petitioners allege that their rights to human dignity, freedom from torture and privacy under Articles 28, 28 and 31 of the Constitution respectively were violated by the respondents. The manner of violation was stated to be through the publication of publication of the photograph, personal and family details of the 1st petitioner in a death announcement when the 1st petitioner was not dead thereby causing the petitioners and their entire family pain and anguish.

41. Articles 28, 29 and 31 of the Constitution stipulate as follows:

Article 28

Every person has inherent dignity and the right to have that dignity respected and protected.

Article 29(a) (d) and (f)

Every person has the right to freedom and security of the person, this includes the right not to be--

(a) deprived of freedom arbitrarily or without just cause;

(d) subjected to torture in any manner, whether physical or psychological;

(f) treated or punished in a cruel, inhuman or degrading manner.

Article 31 (c)

“Every person has the right to privacy, which includes the right not to have-

42. In determining whether the petitioners proved that their rights under the above cited Articles were violated, I wish to start by pointing out that the above rights are closely interrelated or intertwined which means that a violation of one may imply a violation of the other. Starting with the right to human dignity, I find that Article 28 of the constitution is clear on this right and the provisions require no further elaboration.

43. It was not disputed that the impugned publication was made concerning the 1st petitioner which publication, the respondents concede, in their own replying affidavit at paragraph 11 thereof, caused the petitioners pain and anguish. The respondents’ deponent states as follows in the said paragraph:

i. The Acting Chief Executive Officer and the Advertising Director ( the 1st and 3rd respondents, respectively) visited the petitioners at their home on 7th February 2018, t personally apologize to the petitioners. This was admitted by the 1st petitioner during an interview which was captured in the Daily Nation newspaper of 9th February 2018 (page 29 of the exhibit).

ii. The 4th respondent’s Head of Security made a report of the incident to the police so that investigations could be carried out.

iii. The 4th respondent published a story in the Daily Nation newspaper of 8th February 2018 (page 30 of the exhibit) giving an account of how the advertisement was submitted to it and ended up appearing in its newspaper. The story contained a photograph of the individual that placed the advertisement, which was obtained from CCTV footage.

iv. The 4th respondent published a correction of the erroneous information provided in the advertisement and apologized both on its television channel (NTV) and the Daily Nation newspaper of 8th February 2018. On its NTV news bulletins on 7th February 2018, the part of the report on the incident was to the effect that:

“The Nation Media Group immediately regretted the pain and anguish the publication cause the Mr Wanjigi and his family and reached out to him to apologize. NMG was categorical that it does not condone such publication which clearly goes against the editorial policy. The Group stated that it had taken immediate action against those responsible for the placement of the announcement including reporting the matter to police for further investigations. And to support in the investigations, the Nation Media Group published the CCTV footage and pictures of the person who booked the obituary….Nation Media Group is appealing to anyone among member of the general public who may have any information on the individual to please contact the matter to the nearest police station.”

v. The correction and news of the apology came as early as the 1. 00pm news bulletin on 7th February 2018 on NTV, and was also published in the 4th respondent’s social media handles, including the You Tube channels and Twitter handle, and the next editions of the Daily Nation newspaper, published on 8th and 9th February 2018.

vi. The 4th respondent, through its newspapers and the television channel, continues to provide information to the public about the incident, including publishing photograph of the individual that placed the erroneous advertisement in the 4th respondent’s newspaper.

vii. The 4th respondent has at all times been willing and ready not just to cooperate with the petitioners and the police in investigations on the matter and efforts to apprehend the individual that placed the advertisement, but has been taken a lead role in trying to establish the identity of the individual that placed the advertisement.

44. Having regard to the above highlighted contents of the respondents’ replying affidavit, I find that it is clearly evident that the respondents concede that not only did they publish the impugned publication, but that the said article was erroneous that it caused the petitioners pain and anguish.

45. On the right to human dignity, I find that logically speaking there is no dignity that can be attributed to death as a dead person does not enjoy the rights and privileges of a living person. I also find that the making of a false publication regarding a person’s death, when the said person is still alive, calls to question the intention of the person making such a publication. To my mind, such a publication can only be construed to connote that its maker had an ill motive or intention to harm the persons likely to be affected by the said death publication. Needless to say, the publication had the effect of infringing on the rights of the petitioners to privacy as it was not disputed that it had the effect of unnecessarily revealing their family and private affairs contrary to the clear provisions of Article 31(c) of the Constitution.

46. In the case of JW1 & Another vs Standard Group Ltd & Another [2015]eKLR it was observed that:

“The concept of right to privacy demarcates for the individual realms or dimensions that he need in order to be able to enjoy individual freedoms exacted and legally safeguarded in modern societies. Such realms or dimensions of privacy substantialize the liberties that are secured because the mere securing of freedom does not in itself necessarily entail that the conditions are secured for us to be able to enjoy these liberties as we really want to. Protecting privacy is necessary if an individual is to lead an autonomous, independence 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.”

47. In the case of Barbra Georgina Khaemba vs Cabinet Secretary, National Treasury & Another [2016]eKLR the Supreme Court of New Zealand decision in Brooker vs the Police [2007] NZSC 30 was cited with approval and the court held the view that:

“Privacy can be more or less extensive, involving a broad range of matters bearing on an individual’s personal life. It creates a zone embodying a basic respect for persons ….Recognizing and asserting this personal and private domain is essential to sustain CIVIL AND civilized society….it is closely allied to the fundamental value underlying and supporting all other rights, the dignity and worth of the human person.”

48. In TOS VS Maseno University & 3 Others [2016]eKLR wherein Chemitei J. held

“From the above reasoning and expositions of the law it is clear that publication or use of the images of an individual without his consent violates that person’s right to privacy. I say so because a person’s life is a restricted realm in which only that individual had the power of determining whether another may enter, and if so, when and for how long and under what conditions.”

49. On the right to freedom from torture, it was not in dispute that the impugned publication caused the petitioners pain and anguish. As I have already noted in this judgment, the respondents acknowledged the devastating effect of the impugned advertisement on the petitioners and offered them an apology. Black’s Law dictionary, 10th edition, defines torture as follows:

The infliction of intense pain to the body or mind to punish, to extract a confession or information, or to obtain sadistic pleasure.

50. The European Court of Human Rights has defined torture and inhuman treatment in the Greek Case 1969 Y.B. Eur. Conv. on H.R. 186 (Eur. Comm’n on H.R in the following terms;

“The notion of inhuman treatment covers at least such treatment as deliberately causes suffering, mental or physical, which, in the particular situation is unjustifiable. The word “torture” is often used to describe inhuman treatment, which has a purpose, such as the obtaining of information or confessions, or the infliction of punishment, and it is generally an aggravated form of inhuman treatment. Treatment or punishment of an individual may be said to be de-grading if it grossly humiliates him before others, or drives him to an act against his will or conscience.”

51. The issue of what amounts to torture and cruel, degrading treatment has also been defined in Samwel Rukenya Mburu vs Castle Breweries, Nairobi HCC 1119 of 2003, per Visram J (as he then was) as:

“Prohibition against torture, cruel or inhuman and degrading treatment implies that an “action is barbarous, brutal or cruel” while degrading punishment is “that which brings a person dishonour or contempt”

52. Guided by the above definitions I find that that in the circumstances of this case, the impugned publication subjected the petitioners to torture, cruel and degrading treatment. Having regard to the above cited authorities and the reasons that I have already stated in this judgment, I find that the petitioners’ rights under Articles 28, 29 and 30 of the Constitution were violated.

53. Turning to the petitioners’ claim against the 1st , 2nd and 3rd respondents, I find that apart from the petitioners’ assertion that they are employees of the 4th respondent, no material was placed before this court to show that they were directly involved in the actual publication of the impugned funeral notice. In effect therefore, the manner in which the 1st, 2nd and 3rd respondents participated in the violation of the petitioners’ rights was not proved and I find that they were not properly sued in these proceedings.

Remedies

54. Besides the prayer for declaratory orders, the petitioners also sought orders to prohibit the respondents from further infringing their rights, an order to compel the respondent to compensate the petitioner for the violation of their rights and costs of the petition. The petitioners also sought damages for the constitutional torts and acts of negligence.

55. Article 23 of the Constitution stipulates as follows on the orders that this court may grant for violation of constitutional rights.

23. Authority of courts to uphold and enforce the Bill of Rights

(1) The High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.

(2) Parliament shall enact legislation to give original jurisdiction in appropriate cases to subordinate courts to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.

(3) In any proceedings brought under Article 22, a court may grant appropriate relief, including—

(a) a declaration of rights;

(b) an injunction; [underlining mine]

(d) a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24;

(e) an order for compensation; and

(f) an order of judicial review.

56. In the South African case of Grutter v Lombard and Another 2007 (4) SA 89 (SCA), it was noted as follows –

“The extent to which the features of a person’s identify – for example his or her name or likeness – constitutes interests that are capable of legal protection has received little attention from our courts. In the United States the appropriation of a person’s name or likeness for the benefit or advantage of another has come to be recognized as an independent tort during the course of the last century. The English common law seems to have been more reticent in that regard. In his illuminating dissertation on the subject P.P.J Coetser observes that in Germany ‘wide protection has been afforded by the positive law to an individual’s interest in identity’ form which has emerged that ‘it is unlawful to use certain aspects of personality for commercial purposes without consent.’

In this country it appears to be generally accepted academic opinion that features of personal identify are indeed capable (and deserving) of legal protection.”

57. Similarly, in another South African case of Angella Wells v Atoll Media (PTY) Ltd & Anor, Western Cape High Court Case No. 11961/2006 it was held

“...the appropriation of a person’s image or likeness for the commercial benefit or advantage of another may well call for legal intervention in order to protect the individual concerned. That may not apply to the kinds of photographs or television images of crowd scenes which contain images of individuals therein. However, when the photograph is employed, as in case, for the benefit of a magazine sole to make profit, it constitutes an unjustifiable invasion of the person rights of the individual, including the person’s dignity and privacy. In this dispute, no care was exercised in respecting these core rights.”

58. From the above cited cases, it is clear that the South African courts have set the pace in according protection for human dignity and privacy where they are exploited for commercial purposes without consent. In the present case it is clear that the consent of the petitioners was not sought or obtained before the 1st petitioner’s image and family details were published in the impugned obituary. The 4th respondent conceded that it was paid for the publication which means that it received financial benefit from the said publication.

59. In a strange twist however, the respondents claimed that the impugned advertisement was procured by an unidentified customer and that they cannot therefore be held liable for the contents of an advertisement that is published in good faith. In support of their position that the advertisement was published innocently believing that it was bona fide, the respondents relied on the Court of Appeal decision in the case of James Kimeu Mulinge vs Nation Media Group(supra). I however note that there is a clear distinction between the said case and the present case as in the cited case, the court found that not only was the advertisement privileged but that it was also published innocently and that the appellant was well aware of the identity of the person who placed the advertisement in the newspaper but chose not to include him as a defendant in the said case, in which case, the media house could not be held responsible for the said publication. In the instant case however, I find that it is 4th respondent who should have revealed the identity of its customer having dealt with him and received payment for the advertisement.

60. My further finding is that as a responsible and one of the leading media houses in this country, the 4th respondent owes a duty to the public for every single publication that it makes in all its media platforms and cannot cede this responsibility to third parties and in this case, a ‘faceless’ individual who they only referred to as Jared. I find that the 4th respondent entered into a contract with the customer who allegedly placed and paid for the impugned advertisement and that it is therefore either an act of mischief or gross negligence on the part of the 4th respondent to claim that the customer could not be identified. The irresistible conclusion that any right-thinking person can arrive at is that either the 4th respondent is the real originator of the impugned advertisement or that, for reasons best known to it, is shielding the real maker of the offensive obituary from scrutiny. It is my finding that this scenario exacerbates the petitioners’ claim it denies them the opportunity to know the real face(s) behind their woes and the intentions in making the offensive advertisement.

61. Section 3(2) of the Media Council Act stipulates that in the exercise of the right to freedom of expression, media enterprises, journalists, media practitioners, foreign journalists and consumers of media services shall:

a) reflect the interests of all sections of the society;

b) be accurate and fair;

c) be accountable and transparent;

d) respect personal dignity and privacy of other;

e)be guided by the national values and principles of governance setout under Article 10 of the Constitution.

62. In the instant case, one cannot say that the 4th respondent acted in an accountable and transparent manner in failing to disclose the identity of the real maker of the impugned advertisement. Be that as it may, and irrespective of the originator or the purpose of the said publication the fact still remains that it was made in the 4th respondent’s newspaper, it had the effect of violating the petitioners’ rights and as a consequence thereof, the petitioners are entitled to the orders sought in the petition. I find that in the circumstances of this case, the respondent cannot escape liability for violation of the petitioners’ rights.

63. The petitioners sought orders to prohibit the respondents from further violating their rights by publishing their private and family details. I am of the humble view that considering the circumstances of this case and the fact that the respondents were not forthcoming with the identity of the person or people behind the impugned advert, the said order of prohibition sought is merited and I allow it.

64. On damages payable for the violations, I note that both the petitioners and respondents submitted on the quantum of damages payable for the said violations. The petitioners’ case was that an award of Kshs. 200 million would be adequate compensation for the violations. The respondents, on the other hand were of the view that an award of nominal damages would suffice considering the fact that the 4th respondent took immediate steps to correct the wrong impression that had been created by the impugned advertisement.

65. In determining the appropriate relief for the violation of human rights where violation is actually proved, the court can award compensation while bearing in mind the fact that human rights are invaluable, are for enjoyment and not violation. It is noteworthy that there can be no sufficient redress for violation of human rights and fundamental freedoms through monetary compensation. Courts are alive to the fact that no monetary value can be attached to the violated human rights and therefore only make awards in compensation as a consequence of infringement of human rights and fundamental freedoms to deter future violations, but not to repair the already violated rights and fundamental freedoms. Through the act of compensation, Courts send a message to the would be violators of human rights that Courts will not let go such violations without some form of reparation.

66. In deciding what award to make, the Court will consider factors such as the torture, if any, inflicted on the Petitioner, the length of time the Petitioner suffered the distress and decided cases on the issue and what would be fair and reasonable award in the circumstances of the case. In the instant case, as I have already noted in this judgment, the 4th respondent took immediate steps to correct the erroneous impression created by the impugned publication through the publication of apologies in their various news platforms and the personal visits to the petitioners’ residence to tender apologies. My take is that the quick action taken by the 4th respondent played a critical role in quelling any fears or distress that may have been caused by the said publication. That said, I still find that the 4th respondent cannot go scot free for the damage and pain that they caused the petitioners. This court takes judicial notice that the 4th respondent is not in the category of a tabloid or gutter press who are known to publish wild claims and allegations that amount to what has come to be commonly known as ‘fake news’. Indeed the 4th respondent can be said to be a leading and respected media house whose publications enjoy wide readership both locally and internationally. The placing of the 4th respondent in the super league in terms of the media calls for an even bigger responsibility to the public to ensure that whatever they publish can be verified and traced to its source. In the instant case, the 4th respondent appeared to be admitting that it can publish any information without caring to know its source and that it can enter into contracts with ‘faceless’ individuals. I find this position to be not only untenable but also unbelievable.

67. I am of the view that, in the circumstances of this case, the petitioners are entitled to an award of damages for the invasion of their constitutionally guaranteed rights. I am further of the view that an award of Kshs.4,000,000 (four million) for each of the plaintiffs will be adequate compensation for the violation of their right to privacy, human dignity and freedom from torture.

68. In conclusion, having found that the petitioners’ were violated, I am inclined to allow the instant petition in the following terms:

a) A declaration order that the actions of the respondents violated the petitioners’ rights under Articles 28, 29 and 31 of the Constitution.

b) An order that the 4th respondent pays each of the petitioners Kshs. 4,000. 000 as damages for the violation of their fundamental rights and freedoms.

c) A prohibitory order prohibiting the 4th respondent from further publishing private and family details of the petitioners including those of their children in the manner that violates their fundamental rights and freedoms;

d)An order that the 4th respondent pays the costs of this petition.

Dated, signed and delivered in open court at Nairobi this 30th day of April 2019.

W. A. OKWANY

JUDGE

In the presence of:

Mr Willis Otieno for petitioner

Mr Muringu for respondents

Court Assistant - Ali