Mathenge v Nation Media Group Limited & 2 others [2024] KEHC 12201 (KLR)

Mathenge v Nation Media Group Limited & 2 others (Civil Case 502 of 2008) [2024] KEHC 12201 (KLR) (Civ) (9 October 2024) (Judgment)

Neutral citation: [2024] KEHC 12201 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Case 502 of 2008

CW Meoli, J

October 9, 2024

Between

John Mwai Mathenge

Plaintiff

and

Nation Media Group Limited

1st Defendant

Jaindi Kisero

2nd Defendant

Zeddy Sambu

3rd Defendant

Judgment

1. This suit was instituted by John Mwai Mathenge (hereafter the Plaintiff) against Nation Media Group Limited, Jaindi Kisero and Zeddy Sambu (hereafter the 1st, 2nd and 3rd Defendants, respectively) via the plaint dated 7. 11. 2008 and amended on 28. 09. 2010 (the amended plaint) and is founded on the tort of defamation. The Plaintiff seeks inter alia general, aggravated and exemplary damages; an injunction restraining the Defendant whether by themselves or through their servants/agents from publishing defamatory words or words of similar nature as against him; an order compelling the Defendants to publish in “The East African” and the Business Daily Newspaper, a retraction of the earlier publications relating to the Plaintiff as well as an apology.

2. The Plaintiff averred that he was at all material times a Director of Kenya Pipeline Company (KPC) and the Chairman of the Tender and Board Tender Oversight Committees of KPC. The 1st Defendant was sued in its capacity as the publisher of The East African and the Business Daily newspapers, whereas the 2nd and 3rd Defendants were sued in their respective capacities as reporters with the 1st Defendant.

3. The Plaintiff averred that sometime on or about 27. 10. 2008 the 2nd Defendant’s false and malicious report concerning the Plaintiff was published by the 1st Defendant on pages 1 to 2 of Issue Number 730 for 27. 10. 2008 to 2. 11. 2008 of “The East African” (the first publication) using the following words:“Sh 1b gone down the tubes as KPC bursts budget on pipeline upgrade(On page 1 (repeated on page 2)“...the controversy stated AT A Board meeting on September 16th when the chairman of the Board’s tender oversight Committee, Mathenge Mwai, asked the Board to approve the Kshs. 1 billion extra expenditure...(On Page 2)...according to the minutes of the meetings, directors also argued that a variation of the size Mr. Mathenge was seeking was not acceptable under procurement regulations.After several hours of deliberations, the board made several resolutions:First to flatly reject the payments as proposed by Mr. Mathenge....in the first place it will be interesting to find out the circumstances under which the tender oversight committee came into existence and its involvement in procurement. Under procurement regulations, boards of parastatals have little to say on procurement, their role being restricted to budgets.But the most controversial will be the variations. During the critical Board meeting of 16th September, the chair of the boards tender oversight committee had explained that Triple Eight’s original contract price of Kshs 262 million was only “indicative” and that the understanding all along was that the scope of the civil works was to be varied.Whether this practice is acceptable under the rules of competitive bidding is something that investigators will be keen to establish...”

4. The Plaintiff further averred that sometime on or about 16. 03. 2009 the 3rd Defendant falsely and maliciously reported and the 1st defendant caused to be published on page 5 of the Business Daily newspaper, an article titled: “Pipeline company gets new managers as state seeks to calm lender” (the second publication) concerning the Plaintiff, containing the following words:“Energy Minister, Kiraitu Murungi, hires new faces in order to restore confidence with his suppliers and avert future crises like the Triton dealings. In addition, he also ordered that the firm’s four senior managers proceed on compulsory leave.Barely two months into office, board chairman Samuel Manzu Maluki, was sent home along with fellow directors George Wachira, Ahmed Msallam and John Mathenge.“The Triton issue was a case of fraud involving KPC’S junior employees and the oil marketer. There was theft of trust property by junior KPC employees. Those involved have been removed,” he said.”

5. The Plaintiff averred that in their natural and ordinary meaning the aforesaid words meant and were understood to mean that the Plaintiff was inter alia, corrupt; dishonest and lacking in integrity; incompetent; in breach of his fiduciary duties at KPC; and unfit to be a public servant.It was pleaded in the amended plaint that the aforesaid words were similarly published in a false and malicious manner, the particulars of which were detailed in paragraph 10 therein. And that as a result of the said publication, the Plaintiff suffered injury to his reputation, in the eyes of friends, colleagues and the wider business community. The Plaintiff added that no apology has been tendered or offered by the Defendants, despite demand having been made by his advocates.

6. The 1st and 2nd Defendants entered appearance and filed their joint statement of defence dated 16. 02. 2009, denying the key averments in the plaint and liability. Whilst admitting to the publications, the said Defendants denied that they were defamatory of the Plaintiff or actuated by malice, further refuting the particulars set out in the amended plaint. The 1st and 2nd Defendants equally denied that the published words purveyed the natural and ordinary meaning pleaded in the amended plaint. The 1st and 2nd Defendants further averred that the impugned publications were made in good faith, and thus pleaded the defences of truth/justification and fair comment on a matter of public interest.

7. In his reply to the statement of defence, the Plaintiff joined issue with the Defendants and reiterated the contents of the amended plaint. The foregoing was the state of pleadings prior to hearing of the suit.

8. The record shows that interlocutory judgment was entered against the 3rd Defendant on 19. 05. 2011 for failure to enter appearance and/or file his statement of defence in the matter. Subsequently, the suit proceeded for hearing. The Plaintiff and his witness testified at the trial, while the 1st and 2nd Defendants called one (1) witness.

9. In his testimony, the Plaintiff as PW1 started by outlining his professional qualifications as an Advocate of the High Court of Kenya; a Quantity Surveyor; and a Certified and Practising Arbitrator, with membership in the relevant bodies and his experience in the respective professional capacities. He stated that his claim against the Defendants arose from the first and second publications, copies of which he produced as P. Exhibits 1A and 1B, respectively. Testifying that he held the position of Director at KPC between March 2003 and March 2009, he stated that he was a member of the Tender Committee before being elevated to the position of Chairman, pursuant to Legal Notice No. 51 of 2002. That upon coming into force of the Public Procurement and Disposal Act (the Act), the Plaintiff was further elected to serve as an ordinary member of the Board staff and technical committees, as well as the Chairman of the Board Tender Oversight Committee (BTOC).

10. That both the tender committee and the BTOC had the legal mandate to handle procurement matters, following the enactment of the Act, the BTOC’s specific role being the monitoring of procurements involving projects costing above Kshs.50,000,000/-. That pursuant to the abovementioned Legal Notice No. 51 of 2002, it was stipulated that the Line One Capacity Enhancement Project between Mombasa and Nairobi (the subject project) in particular, be completed in order to boost the pumping efficiency of all other products. The Plaintiff produced various correspondences concerning the establishment of the BTOC (P. Exh. 2A, 2B, 2C, 2D and 2E respectively).

11. It was the further testimony of the Plaintiff that during the Board meeting held on 16. 09. 2008 he requested the Board to approve the Kshs. 1 billion expenditure/financing for the subject project, as reported in the impugned publication, although the minutes of the meeting did not reflect such request. That among the resolutions which resulted from the said meeting was one rejecting any request for variation. That all he was doing was seeking ratification of the subject project, which request was accepted by the KPC Board, subject to consultations with the Ministry for Energy and the Treasury.

12. That during consultations with the Ministry for Energy in the meeting held on 17. 09. 2008 one of the agendas discussed was the manner in which the above expenditure arose and what action was taken by the Board pertaining to the changes in expenditure and variation. That one of the issues noted was that the extra expenditure in the subject project was not in the sum of Kshs. 1 billion and Kshs.4,000,000/- but in the region of Kshs. 580 million. That the then Minister for Energy directed that the subject project proceeds to its completion and that the cost thereof be financed as approved by the Board, following which the BTOC would undertake investigations upon commissioning the relevant projects, to confirm due compliance with the law.

13. It was similarly the Plaintiff’s testimony that a report dated March 2009 tendered in respect of the subject project, recorded findings that various significant variations and payments had not been approved by the BTOC that was being chaired by the Plaintiff; and further, that the relevant regulations had not been followed in implementation of the respective variations and payments.

14. The Plaintiff gave evidence that in the meeting held by KPC on 16. 09. 2008, the minutes of which were produced and marked as P. Exh. 3A, two (2) resolutions were passed; indicating that the original contractual amount for the subject project stood at Kshs.3,869,639. 708 while the revised amount stood at Kshs.4,665,626. 286 which amount was less than the Kshs. 1 billion alleged by the Defendants herein. The Plaintiff equally produced subsequent minutes of the KPC meeting held on 17. 09. 2008 and the above cited report by the BTOC and dated March 2009 as P. Exh. 3B and 3C respectively.

15. It was the Plaintiff’s further evidence that he was merely acting as Chairman of the BTOC at all material times and not in a personal capacity. That in addition to the subject project, he was involved in various other projects which were similarly discussed during the relevant meetings. The Plaintiff proceeded to tender the minutes of meetings held on 13. 09. 2006, 1. 12. 2006, 3. 04. 2007, 19. 04. 2007, 14/15. 08. 2007, 3. 03. 2008, 22. 07. 2008, 28. 02. 2008, 11. 03. 2008, 8. 05. 2008 and 9. 09. 2008 as P. Exh. 4A, 4B, 4C, 4D, 4E, 4F, 4G, 4H and 4I respectively, to support his testimony that he was opposed to any unjustified variations in the relevant projects, and especially the subject project.

16. It was his evidence that contrary to the contents of the second publication (P. Exh. 1B), he was not dismissed; rather, he resigned from his position as a member of KPC board and Chairman of the BTOC vide the letter dated 19. 02. 2009. For reasons that he deemed himself unable to perform his duties in light of the negative environment as well as the impact of the impugned publications on the personal, professional and social aspects of his life. The Plaintiff tendered the resignation letter dated 19. 02. 2009 together with supporting letters dated 6. 03. 2009 and 10. 03. 2009 as P. Exh. 5A, 5B and 5C respectively.

17. The Plaintiff proceeded to testify that prior to making the impugned publications, the Defendants neither contacted him nor KPC to confirm the true facts; that he came to learn of the said publications when contacted by his supporting witness, Dr. Obadiah Kimani and fielded numerous calls from other persons known to him and had to offer explanations to the said people. That his advocates’ demand for an apology and amends to the Defendants elicited no response. The demand letters dated 27. 10. 2008 and 24. 03. 2009 were tendered as P. Exh. 6A and 6B respectively. It was the Plaintiff’s evidence that none of the impugned publications contained true facts and that they referred to him in person. That the said publications were authored by the 2nd and 3rd Defendants. That, consequently, he was seeking the reliefs set out in the amended plaint.

18. Upon being later recalled to give further evidence, the Plaintiff further testified that at some point, he had written to the Permanent Secretary for Energy, indicating his willingness to address any queries or concerns pertaining to the tender in respect of the subject project, but that he was never summoned. The Plaintiff equally testified that subsequently, one Okungu citing a Hansard Report by the National Assembly Public Investments Committee (PIC) which was tendered by the Defendants, claimed that the BTOC approved the disputed payments, which position was not true. During his testimony upon being further recalled at a later date, the Plaintiff adopted his further witness statement dated 18. 10. 223 as part of his evidence-in-chief in respect of the cited Hansard Report.

19. In cross-examination, the Plaintiff testified that he was requested by the Minister for Energy, to undertake investigations on the circumstances surrounding the variations, which he did before his resignation. That as per his recollection, no one was prosecuted. Upon being referred to P. Exh. 3A and 3B, the Plaintiff stated that there was a variation of Kshs.441,347. 104 million in the relevant project, since there was a change in the scope and specification of the contract and hence the publications are true in that respect. That the said changes were however undertaken without his knowledge. The Plaintiff further testified that his role as Chairman of the BTOC was to oversee the implementation of tenders above Kshs. 40 million and report to the KPC Board should any issues arise therefrom. That he did not sit in the committee that reviewed the terms of the tender pertaining to the subject project, and that the subject of variations of the subject project was discussed by the KPC Board and it was agreed that the variations were justified.

20. The Plaintiff restated that the BTOC was mandated to approve cost variations; that per P. Exh. 5B the issue pertaining to Triton Oil Company was being investigated by multinational agencies and also by the Parliamentary Committee on Energy, Communication and Public Works. That on the said issue, while there had been no misappropriation of funds, there had been an expenditure that had not been accounted for, as well as variation of prices in the relevant tender which had not been provided for in the contract. That some employees were consequently suspended by the KPC Board, pending investigations in the matter. The Plaintiff testified that he was not involved in the Triton tender.

21. It was the Plaintiff’s testimony that during his tenure as Chairman of the BTOC, he did not seek approvals as the variations in respect of the subject project had already been done. That the Board had given the go-ahead for the project but called for additional investigations to be undertaken into the variation.

22. In further cross-examination, the Plaintiff testified that he was initially a member of the tender committee before being subsequently appointed as Chairman of the BTOC. That the BTOC was not mandated to approve payments, as the Hansard Report stated. That in preparing the said Report, the PIC did not invite him to give his views on the contents thereof, and that there was no procedure to enable him contest the said contents and findings in the Report which he disputed albeit not formally.

23. During re-examination, the Plaintiff stated inter alia, that the variations in question relate to the subject project. That the said variations were made between October 2007 and July/August 2008. That ordinarily, tender variations would be tabled before the Board for approval but that in this instance, the relevant variations were done without reporting to the BTOC. That the tender committee could not approve any tender exceeding Kshs. 40 million, while the BTOC could not overrule a decision made by the tender committee. He added that the Board was not aware of the Triton scandal, since that was a management issue which did not touch on the Board.

24. Dr. Njoroge Obadiah Kimani testified as PW2. Upon adopting his witness statement dated 4. 01. 2013, he proceeded to state that he is an advocate of the High Court of Kenya, an auditor and tax consultant by profession. He further stated that upon reading the impugned articles, he contacted the Plaintiff who was his former classmate, neighbor and friend. That according to the witness, the impugned articles did not portray an accurate picture of the Plaintiff, as he was known.

25. During cross-examination, the witness testified inter alia, that he had no prior knowledge concerning the Plaintiff’s nature of work in the public service, though he was aware that he served at KPC. That he therefore had no prior knowledge that the Plaintiff was a Director at KPC and Chairman of the BTOC. That he similarly had no knowledge of the scandals relating to Triton Oil Company Ltd and the subject project. The witness similarly testified that he was not aware that following the incidents in question, the Plaintiff was found culpable by the PIC, and barred from holding any public office henceforth. That he was also unaware that the Plaintiff’s appointment as Managing Director at KPC was revoked by the Permanent Secretary for Energy, Mr. Nyoike. The witness maintained that his knowledge of the Plaintiff’s character was contrary to the description in the first publication.

26. In re-examination, PW2 stated inter alia, that the impugned articles portrayed the Plaintiff as a dishonest person.

27. Francis Gitau Mungai who was PW3 adopted his executed witness statement dated 8. 02. 2013 as part of his evidence-in-chief and testified that he is an architect by profession. He further testified that he and the Plaintiff had known each other for over 30 years, both in a professional and social capacity. That the impugned articles connoted that the Plaintiff was inter alia, a corrupt and dishonest person, and he contacted the Plaintiff in that regard.

28. In cross-examination, the witness gave evidence that he was not privy to the deliberations which took place at the BTOC especially as pertains to the subject property and cost variations thereof or the circumstances of the Triton scandal. That he was equally unaware of the findings rendered by the PIC regarding the Plaintiff. That from his knowledge, the sub-committees of a board usually report to the top-most Board for purposes of adoption and ratification of their decisions. That his role in as a witness was to address his own impression of the impugned articles and could not speak of the actions by the Plaintiff during his tenure as a Director at KPC.

29. In re-examination, the witness stated that he did not have an opportunity to see the relevant minutes for KPC. That going by his experience as a Board member and Director at Family Bank where he served at the time, the duty of the Board was to oversee the management of the organization.

30. For the 1st and 2nd Defendants, Sekou Owino (DW1) first adopted his signed witness statement dated 4. 07. 2018 as part of his evidence-in-chief and produced the aforesaid Defendants’ list and bundle of documents dated 17. 12. 2022 as D. Exh. 1 to 3. The witness then testified that he is the Head of Legal in the 1st Defendant and that the scandals relating to the subject project and Triton were a matter of great public interest since they involved KPC which is a public body. He went on to state that the first publication mirrored the contents of the Hansard Report (D. Exh. 2) and essentially stated that the subject project exceeded its approved budget. That going by the contents of the Report, the Plaintiff was implicated for his role in the Tender Committee. That the impugned articles did not therefore defame the Plaintiff as claimed.

31. During cross-examination, DW1 stated that he was aware of the scandals involving KPC and Triton. He further testified that in the process of publishing an article, a writer is generally required to fact find and conduct interviews of relevant persons, where possible. That in the present instance, it was not necessary for such interviews to be undertaken since the story concerned KPC and not necessarily the Plaintiff. That the story emanated from the Ministry of Energy and a section of the KPC Board members. That save for the Plaintiff, no other Board member of KPC disputed the story as narrated in the impugned articles. That the relevant minutes of meetings held by KPC mentioned the controversial variations, particularly on page 7 of P. Exh. 3A, and that there was no indication in the said minutes that members of the Board rejected the proposed variations. That the reports made in the impugned articles were generally accurate, save for certain inaccuracies.

32. The witness admitting that by the contents of the Hansard Report, the Plaintiff was not invited to give his position before its publication. And furthermore, the Plaintiff’s name did not appear on the list of KPC staff who provided information to the PIC. That the said Report does not specifically tie the Plaintiff to the scandals in question; rather, it mentions the Committee (BTOC).

33. During re-examination, DW1 stated that during the relevant period, the Plaintiff was both a member of the tender committee and Chairman of the BTOC. He concluded his testimony by stating that according to the Hansard Report (D. Exh. 2), a recommendation was made by the PIC that the Plaintiff should not hold any public office in the future.

34. Upon close of the hearing, the parties were directed to file and exchange written submissions.

35. The Plaintiff’s counsel anchored his submissions on the decision in Wycliffe A Swanya v Toyota East Africa Ltd & Francis Massai [2009] KECA 379 (KLR) on the requisite ingredients of defamation. Counsel submitting that it is not in dispute that the impugned articles were published by the Defendants and concerning the Plaintiff. He contended that the said publications were actuated by malice and were made without prior comment being sought from the Plaintiff and/or KPC to confirm the true facts. It was similarly counsel’s submission that the impugned publications contained falsehoods as they did not reflect the contents of the minutes contained in the meetings held by KPC and tendered as exhibits and further, claimed that the Plaintiff was dismissed, yet he had voluntarily resigned. That in addition, the impugned articles purported to link the Plaintiff to the Triton scandal which involved KPC staff and was handled by the KPC management. Counsel equally submitted that the Plaintiff had demonstrated the manner in which the impugned articles were defamatory of him, as seen in the evidence tendered by his supporting witnesses.

36. He argued that the court should not adopt the PIC Hansard Report as a defence exhibit, since the same was prepared without the Plaintiff’s input or response. Counsel here relying on the case of Ahmed Issack Hassan v Auditor General [2015] KEHC 4712 (KLR). Counsel argued that the defences of truth and fair comment on a matter of public interest, are not available to the Defendants in view of the foregoing.

37. On quantum, the Plaintiff’s counsel proposed the sums of Kshs.30,000,000/-; Kshs.4,000,000/-; and Kshs.3,000,000/- in general and aggravated damages, and damages in lieu of an apology respectively. Citing in his support, the decision in J.P. Machira t/a Machira & Co.Advocates v Wangethi Mwangi & Nation Newspapers [2018] KEHC 3394 (KLR) where the court found that the Plaintiff therein was entitled to aggravated damages in the absence of an apology by the Defendants therein; and the decision in Samuel Ndung’u Mukunya v Nation Media Group Limited & Alphonse Shiundu [2015] KEHC 7447 (KLR) where the court awarded the respective sums of Kshs.15,000,000/-; Kshs.3,500,000/-; and Kshs.1,500,000/- under similar heads. Counsel therefore urged the court to allow the claim accordingly.

38. On the part of the 1st and 2nd Defendants, their counsel submitted that the impugned publications are not defamatory and were corroborated by the contents of the PIC Hansard Report. Counsel citing the decisions in Jacob Mwanto Wangora v Hezron Mwando Kirorio [2017] KEHC 3154 (KLR) and Musikari Kombo v Royal Media Services Limited [2018] KECA 801 (KLR) as to what constitutes a defamatory statement/publication. Counsel maintained that the impugned publications were based on true facts pertaining to the Triton and subject project scandals, and were a fair comment on a matter of public interest. The case of Fraser v Evans & Another [1969] 1 ALL ER on was cited on the applicability of the defence of fair comment in this instance.

39. Regarding quantum, counsel contended that the Plaintiff is not entitled to any of the reliefs/awards sought and therefore urged the court to dismiss the suit with costs, based on Section 27 of the Civil Procedure Act (CPA) and the decision in Cecilia Karuru Ngayu v Barclays Bank of Kenya &Credit; Reference Bureau Africa Ltd [2016] KEHC 7064 (KLR) in that regard.

40. The court has considered the pleadings, the evidence on record and the parties’ respective submissions. While it is apparent from the record that interlocutory judgment was entered against the 3rd Defendant, the legal principle remains that the onus rested with the Plaintiff to prove his claim against all three (3) Defendants to the required standard, nonetheless. In that regard, the applicable law as to the burden of proof is found in Section 107, 108 and 109 of the Evidence Act.

41. The Court of Appeal in Mumbi M'Nabea v David M.Wachira [2016] eKLR while discussing the standard of proof in civil liability claims in our jurisdiction had this to say:“In our jurisdiction, the standard of proof in civil liability claims is that of the balance of probabilities. This means that the Court will assess the oral, documentary and real evidence advanced by each party and decide which case is more probable. To put it another way, on the evidence, which occurrence of the event was more likely to happen than not. Section 107(1) of the Evidence Act, Cap 80 Laws of Kenya provides as follows:“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exists.” The above provision provides for the legal burden of proof.However, Section 109 of the same Act provides for the evidentiary burden of proof and states as follows:“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”The position was re-affirmed by the Court of Appeal in Maria Ciabaitaru M’mairanyi & Others v. Blue Shield Insurance Company Limited - Civil Appeal No. 101 of 2000 [2005] 1 EA 280 where it was held that:“Whereas under section 107 of the Evidence Act, (which deals with the evidentiary burden of proof), the burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue, section 109 of the same Act recognizes that the burden of proof as to any particular fact may be cast on the person who wishes the Court to believe in its existence.”

42. Further, the same court in Karugi & Another v Kabiya & 3 others [1987] KLR 347 noted that:“[T]he burden on a plaintiff to prove his case remains the same throughout the case even though that burden may become easier to discharge where the matter is not validly defended and that the burden of proof is in no way lessened because the case is heard by way of formal proof….The plaintiff must adduce evidence which, in the absence of rebuttal evidence by the defendant convinces the court that on a balance of probabilities it proves the claim.”

43. Regarding the rationale behind the law of defamation, the Court of Appeal rendered itself in the following manner, in Musikari Kombo v Royal Media Services Limited [2018] eKLR:“The law of defamation is concerned with the protection of a person’s reputation. Patrick O'Callaghan in the Common Law Series: The Law of Tort at paragraph 25. 1 expressed himself in the following manner:“The law of defamation, or, more accurately, the law of libel and slander, is concerned with the protection of reputation: 'As a general rule, English law gives effect to the ninth commandment that a man shall not speak evil falsely of his neighbour. It supplies a temporal sanction …’ Defamation protects a person's reputation that is the estimation in which he is held by others; it does not protect a person's opinion of himself nor his character. 'The law recognizes in every man a right to have the estimation in which he stands in the opinion of others unaffected by false statements to his discredit' and it affords redress against those who speak such defamatory falsehoods…”

44. Actions founded on the tort of defamation surface the tension between private interest and public interest. Article 33(1) of the Constitution, 2010 guarantees every person’s right to freedom of expression including the freedom to seek, receive or impart information or ideas but sub-Article (3) states that “In the exercise of the right to freedom of expression, every person shall respect the rights and reputation of others”. Article 34 guarantees the freedom of the media while Articles 25 and 31 protect the inherent dignity of every person and the right to privacy. These rights are reinforced by the provisions of the Defamation Act. Contemplating these competing rights Lord Denning MR stated in Fraser v Evans & Others [1969]1 ALL ER 8;-“The right of speech is one which it is for the public interest that individuals should possess, and indeed, that they should exercise it without impediment, so long as no wrongful act is done; and unless an alleged libel is untrue, there is no wrong committed.”

45. In Selina Patani & Another v Dhiranji V. Patani [2019] eKLR the law of defamation is concerned with the protection of a person’s reputation, that is, the estimation in which such persons are held by others. In that case, the Court of Appeal stated that: -“In rehashing, we note the ingredients of defamation were summarized in the case of John Ward v Standard Ltd. HCC 1062 of 2005 as follows:i.The statement must be defamatory.ii.The statement must refer to the plaintiff.iii.The statement must be published by the defendant.iv.The statement must be false.”

46. In order to succeed in his claim therefore, the Plaintiff was required to prove the above ingredients on a balance of probabilities. Regarding the ingredients touching on the question whether the impugned publications were made by the Defendants and with reference to the Plaintiff, from the record, it is apparent that the 1st and 2nd Defendants on their part admitted to making the impugned publications (tendered as P. Exh. 1A and 1B) Furthermore, from a perusal of the second publication (P. Exh. 1B), it is also apparent that the same was authored by the 3rd Defendant in his capacity as a reporter for the 1st Defendant.

47. Regarding the ingredient whether the impugned publications referred to the Plaintiff, the court observed the denial contained in the statement of defence filed by the 1st and 2nd Defendants. Upon perusal of the said publications however, the court noted that the first publication contains explicit references to the Plaintiff, whereas in the second publication, the Plaintiff’s name appears alongside those of other persons not before the court. The Defendants’ denials therefore cannot stand in the circumstances. Thus, the remaining key ingredients for determination are whether the publications were defamatory and false, which will next be considered concurrently.

48. A defamatory statement is defined in Halsbury’s Laws of England 4th Edition Vol. 28 paragraph 10 as:“….a statement which tends to lower 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 injurious to him in his office, profession, calling, trade or business”.See also the Court of Appeal definition of a defamatory statement in SMW v ZWM (2015) eKLR.

49. The Court stated in Elizabeth Wanjiku Muchira v Standard Ltd [2011] eKLR that whether a statement is defamatory or not is not so much dependent on the intentions of the defendant but on the “probabilities of the case and upon the natural tendency of the publication having regard to the surrounding circumstances. If the words published have a defamatory tendency it will suffice even though the imputation is not believed by the person to whom they are published.”-Clerks & Lindsell on Tort 17th Edition 1995-page 1018. ”

50. In Musikari Kombo (supra) the Court of Appeal stated that:“The test for whether a statement is defamatory is an objective one. It is not dependent on the intention of the publisher but on what a reasonable person reading the statement would perceive. In Halsbury’s Laws of England 4th Edition Vol. 28 at page 23 the authors opined:“In deciding whether or not a statement is defamatory, the court must first consider what meaning the words would convey to the ordinary man. Having determined the meaning, the test is whether, under the circumstances in which the words were published, a reasonable man to whom the publication was made would be likely to understand them in a defamatory sense.”

51. The Plaintiff pleaded in his plaint and testified that the published articles had the defamatory tendency depicting him in the natural and ordinary meaning as corrupt, unprofessional, dishonest, deceitful inter alia. This was restated in his oral testimony. The Plaintiff sought to rely on the respective testimonies of PW2 and PW3 in this regard. By that evidence read together with the publication separately, a defamatory imputation appears plausible. However, considering the defence evidence tendered, and more particularly the PIC Report together with the minutes of meetings produced by the Plaintiff himself, it would be difficult in the circumstances of this case to conclude that the publications had the defamatory imputations asserted by the Plaintiff. It appears that while the PIC Report and the publications may not have contained all-pure fact, there were certain basic but important facts therein which seem to negative the claim of defamation as mounted by the Plaintiff.

52. The foregoing becomes evident when one considers the question whether the publications were false. In that regard, the court considered the pleadings and assertion by the Plaintiff that the impugned publications singled him out and that the said publications contained falsehoods regarding the cost variations of the subject project and the manner in which the Plaintiff left his position at KPC. In contrast, the 1st and 2nd Defendants took the position that the contents of the impugned publications consisted of truthful facts and did not necessarily target the Plaintiff as an individual; rather, they were intended to bring to the attention of the public the scandals purportedly associated with KPC and the Plaintiff’s alleged role therein, by virtue of his position as Chairman of the BTOC at all material times.

53. From the court’s study of the impugned articles which constitute P. Exh. 1A and 1B respectively, it is apparent that same were triggered by two (2) key scandals purportedly associated with KPC; namely the scandal relating to the subject project which features in P. Exh. 1A and the scandal relating to Triton Oil Company Ltd, featured in P. Exh. 1B. From a re-examination of the record, it is not in dispute that the Plaintiff was at all material times a member of KPC board and Chairman of the BTOC and that pursuant to the letter dated 22. 05. 2007 (P. Exh. 2A) by the then KPC Managing Director, George Okungu and addressed to Permanent Secretary-Ministry of Finance (Mr. Joseph Kinyua), a proposal was made to have a Board established to oversee and handle procurement matters in KPC. Various correspondences ensued, as seen in P. Exh. 2B, 2C, 2D, 2E in a bid to implement the provisions of the Public Procurement and Disposal Act and its Regulations. It is apparent that the above events paved the way for the establishment of the BTOC. The record contains various minutes produced as P. Exh. 4A, 4B, 4C, 4D, 4E, 4F, 4G, 4H and 4I in respect of the meetings held by the Tender Committee to discuss various projects and matters related to procurement of the said projects.

54. The court also examined the various minutes in respect of meetings held by the KPC Board of Directors on 16th and 18th September 2008 and 17. 09. 2008 (P. Exh. 3A and 3B respectively) indicating various agenda including the subject project. Regarding the meeting held on 16. 09. 2008 in particular it was noted in the minutes of 17. 09. 2008 (P. Exh. 3B) that the issue of variation of costs as pertains to the subject project raised concern, with the Board noting that a variation had been made in the sum of Kshs.1,049,278,507. The Board eventually resolving that the implementation of the subject project would proceed uninterrupted but that investigations would be undertaken immediately following the commissioning of the project. The record shows that upon completion thereof, the Plaintiff together with other officials of BTOC, tendered a report on the subject project and dated March 2009 (P. Exh. 3C).

55. Suffice it to say that, it is apparent from the record that claims of a scandal ensued in respect of both the subject project and dealings between KPC and Triton Oil Company Ltd, arising from cost variations purportedly approved by the BTOC but not by the KPC Board and relevant Ministries; as well as financial losses in the billions, resulting from dealings with Triton. These matters ended up in the National Assembly whose inquiry led to the 18th PIC report (D. Exh. 2) containing findings on the two (2) issues, accordingly.

56. As concerns the subject project and other related projects, the PIC recommended that the Plaintiff as well as the then Managing Director of KPC (George Okungu) and Directors of Triple Eight (being the company contracted to undertake the relevant projects) should be barred from holding public offices. From the court’s examination and understanding of the evidence and submissions by the 1st and 2nd Defendants, it appeared, generally speaking, that the impugned publications were primarily based on the PIC Report and factual events relating to the two scandals.

57. That said, and despite the Plaintiff not being summoned before the PIC prior to its Report, it is not the duty of this court to purport to delve into the intricacies of the two scandals. Nor to accept the Plaintiff’s apparent invitation to the court to purport to interrogate the contents of the findings in the PIC Report, being a report by a parliamentary committee. Rather, the court is called upon to ascertain on a balance of probabilities whether the impugned publications constituted malicious falsehoods. Reviewing evidence on record, it may well be true that the Plaintiff opted to resign from his respective positions as Director of KPC and Chairman of the BTOC, as seen in his resignation letters dated 6. 03. 2009 and 19. 02. 2009 (P. Exh. 5 A and 5B respectively) addressed to the Permanent Secretary-Ministry of Energy. P. Exhibits 5 A, reveals that the Plaintiff therein acknowledged the controversies that arose from both scandals relating to the subject project and Triton Oil Company Ltd.

58. It is undisputed that KPC is a state corporation partly funded by the exchequer, and hence its operations are matters of public interest. Hence the inquiry undertaken into the subject project by the PIC. In the circumstances, based on the Defendants’ evidence, malice could not properly be read into the publications. In Phineas Nyagah v Gilbert Imanyara [2013] eKLR the Court stated that:-“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.…. malice may also be inferred from the relationship between the parties before or after the publication or in the conduct of the defendant in the course of the proceedings. Court should however be slow to draw the inference that a defendant was so far actuated by improper motives as to deprive him of the protection of privilege unless they are satisfied that he did not believe that what he said or wrote was true or that he was indifferent to its truth or falsely.”

59. It is apparent that the Plaintiff was named in the said publications in his official capacities as a Director of KPC and especially, the Chairman of BTOC. There is nothing to indicate that he was singled out or maliciously targeted. As things stand therefore, the court upon considering the totality of the evidence on record, is of the view that the Plaintiff did not tender any cogent evidence to enable this court to arrive at a conclusive finding that the contents of the impugned publications were false in substance and defamatory.

60. Finally, it is the court’s considered view that even if the publication had been demonstrated to be defamatory, it would be covered by the defences of fair comment, justification and qualified privilege. It was held in Uhuru Muigai Kenyatta V Baraza Leonard [2011] eKLR that: -“While taking the defence of justification, or qualified privilege in a defamation case, the defendant was required by law to establish the true facts and the plaintiff has no burden to prove the defence raised by the defendant. Once verified, the justification or qualified privilege does not inure the defendant and in any event, the onus that the same is true rests on the defendants to make it a fair publication.”

61. Concerning the defence of fair comment under Section 15 of the Defamation Act, the Court of Appeal in Nation Media Group Limited & another v Alfred N. Mutua [2017] eKLR observed that; -“28. To sustain the defence of fair comment, the appellants were required to demonstrate that the words complained of are comment, and not a statement of fact; that there is a basis of fact for the comment, contained or referred to in the article complained of; and that the comment is on a matter of public interest. [See Gatley on Libel and Slander, 8th edition, 1981 (Sweet & Maxwell) at paragraph 692 at page 291].

29. The respondent could however defeat the defence of fair comment by showing that the comment was not made honestly or was actuated by malice. In J. P. Machira t/a Machira & Company Advocates vs. Wangethi Mwangi & another [1998] eKLR, the Court said that malice “can be inferred from a deliberate, reckless, or even negligent ignoring of facts” and that “deliberate lies can also be evidence of malice.”

30. In Mong’are t/a Gekong’a & Momanyi Advocates vs. Standard Ltd (above) this Court stated, “that comment can only be fair if the basic facts upon which the comment is premised are correct. A comment which is based on lies or falsehood cannot be designated as fair.” And in Grace Wangui Ngenye vs. Chris Kirubi and another, Civil Appeal No. 40 of 2010 [2015]eKLR this Court reiterated that a fair comment must be based on facts that are true or substantially true; and that a fair comment is a commentary, an expression of opinion based on true or substantially true facts.

31. An exposition of what Lord Phillips, the President of the Supreme Court of England described as “the outer limits of the defence” of fair comment is set out in the Supreme court of England decision in Spiller & another vs. Joseph & others [2010] UKSC 53. In that case, Lord Phillips adopted with approval what the Court of Final Appeal of Hong Kong 1 characterized as the five “well established” “non-controversial matters” in relation to the defence of fair comment. First, the comment must be on a matter of public interest. Second, the comment must be recognizable as comment, distinct from an imputation of fact. Third, the comment must be based on facts, which are true or protected by privilege. Fourth, the comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made. The reader or hearer should be in a position to judge for himself how far the comment was well founded. Fifth, the comment must be one which could have been made by an honest person, however prejudiced he might be, and however exaggerated or obstinate his views.”

62. In the absence of proof of the defamatory and false nature of the publications complained of, it is difficult to see how the claim founded on defamation could be sustained. As stated in the case of Wareham t/a A.F. Wareham & 2 Others v Kenya Post Office Savings Bank [2004] 2 KLR 91, if the evidence tendered does not support the facts pleaded, the party bearing the burden of proof should fail. In the result, the Court finds that the Plaintiff has failed to prove all the requisite ingredients of defamation. The suit must fail and is hereby dismissed with costs to the 1st and 2nd Defendants. The suit against the 3rd Defendant is equally dismissed but with no order as to costs.

DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 9TH DAY OF OCTOBER 2024. C. MEOLIJUDGEIn the presence of:For the Plaintiff: Mr. Nyoike h/b for Ms. IrunguFor the 1st and 2nd Defendant: Ms. OdongoFor the 3rd Defendants: N/AC/A: ERICK