Muriithi Mugo v Peter Njoroge & David Mwangi T/A Mwangi Wambugu And Company Advocates [2015] KEHC 537 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL CASE NO.788 OF 2007

MURIITHI MUGO ………………………….………………….…PLAINTIFF

VERSUS

PETER NJOROGE……………................................1ST DEFENDANT

DAVID MWANGI T/A MWANGI WAMBUGU

AND COMPANY ADVOCATES…………………………2ND DEFENDANT

JUDGMENT

In his plaint dated 21st November 2007 and filed in court on 23rd November 2007, the plaintiff herein Muriithi Mugo claimed in paragraph 4 thus:

“On the 15th day of June 2007, the  second defendant  purportedly  acting on  the instructions of the first defendant  published  a letter of  and concerning  the plaintiff  and addressed  to the Chairman of the Institute of Surveyors  of Kenya, and the letter  read on the relevant  part thus:-

“Our client is in the process of having a parcel of land being LR No.  KIAMBAA/RUAKA/2040 subdivided for purposes of  disposing  of the same “ In the circumstances …advise  whether  the above  named M. Mugo  is a licensed  surveyor  with valid practicing  certificate  and whether  it is  indeed procedural for the mutation  forms(copies attached  for  ease  of reference) to be signed  and sealed in blank purportedly certifying that the  work is  done by his assistant under  his  personal direction and supervision while  indeed  nothing  has been done on the ground…….

Yours faithfully

For Mwangi Wambugu & Co. Advocates

DAVID MWANGI”

The  plaintiff  claimed that the above  contents were false, malicious, intended  to spoil the good relationship that  existed between the plaintiff and the Institute of surveyors of Kenya and the office of Director of Surveys at Ardhi House Nairobi and therefore the  plaintiff   had been defamed by the false  words.

The plaintiff particularized defamation in paragraph 5 thus:

PARTICULARS OF DEFAMATION

The  above words  taken in their  ordinary  meaning within the  contents  of the plaintiff’s business operations  meant and were understood  to mean  that the  plaintiff was hawking  signed  mutation forms:

Mwangi  Wambugu Advocates knew the words  and the contents  of their  letter dated  15th June 2007 were false  and were capable of defaming   the plaintiff’s character  and lead to financial loss and he would suffer  damage.

The first and second defendants knew that land parcel No.  LR KIAMBAA /RUAKA/2040 had already been  subdivided by the 15th June  207 and  the two  knew quite well and moreso the second defendant  that the  parcel of land  as quoted  did not  require the mutation forms copies of which  were alleged  attached  for the  Institute  of Surveyors  of Kenya.

Whether the  forms were signed  and  sealed  in blank purportedly  certifying that  work is done by his assistant ………while indeed nothing  has been done on the  ground, these words  were false  respecting L.R. No.  KIAMBAA/RUAKA/2040 as the plaintiff had  long concluded  the subdivision  of this  parcel of land  and new titles   been issued   so by 15th June 2007  no work  was remaining and the advocates  knew that  fact and  reported its  falsehoods.

The second  defendant purportedly  wanted information from the  Institution of Surveyors  of Kenya in order to advise their  client  Mr Peter  Njoroge  while they  knew as  professional lawyers that their  client would not have benefitted  from such information as the land parcel No.  LR.  KIAMBAA/RUAKA/2040 did not exist as at 15th June 2007.

In the same vein the second defendant knew that their client Peter Njoroge did not own the land parcel L.R. No.  KIAMBAA/RUAKA/2040  and therefore  was not in a  position to give any instructions  on the same  and he must  have been planted  there as  a  ghost client  for the defendants  to perfect their ill motives  against the  plaintiff.”

The plaintiff   also pleaded in paragraph 6 of the plaint that:

“By a letter  dated 26th July 2007  the Institution of Surveyors of Kenya  wrote to the plaintiff  relying on the letter  earlier  dated 15th June 2007 from the two  defendants  and also another  letter  from the Director of Surveys  and which  was addressed  to the  Secretary Land Surveyors Board and the  plaintiff  was given  7 days  to give  a comment after  which the  relevant  disciplinary  committee would be  instructed  to deal  with the “professional misconduct.”

The defendant knew and ought to have known they had a duty to do enquiries and to discover the land has already subdivided.

The two defendants  knew  the action  to be taken against  the plaintiff  was serious  one which  would  forever bar the plaintiff  from exercising  professional skills  as a licensed  surveyor .

The defendants knew the plaintiff’s license would be cancelled and would lead to the closure of his office.

By a letter dated  19th July 2007  the Ministry of  Lands  confirmed  the  receipt of  the second defendant’s  letter of  15th June  2007 and wrote  to the Secretary Land Surveyors Board saying.

“ this is a very serious professional misconduct  and  the Government  cannot afford  to be  selling mutation forms for speculation on the streets” “ By  a copy of this letter  the Government  will stop  selling mutation  forms to GEOESTATE DEVELOPMENT SERVICES until the case is  investigated and determined.

The plaintiff  was unable and would  not access  to mutation  forms which  he requires  to do his professional  work and continues to suffer  embarrassment  and ridicule  when colleagues  refer to him  as a hawker of mutation  forms.

The mutation forms serial No. 251307 are the  ones used  for  subdivision of LR KIAMBAA/RUAKA/2040 and subsequent  registration of new  titles   was a process that the two  defendants  knew had  been completed  on 15th May 2007 and the registration  documents  were paid for  on 14th May 2007 vide receipt  No. 8163061 and  the District Surveyor Kiambu confirmed  the same.

By reasons of the foregoing, the plaintiff claimed that he had been defamed and had suffered loss and damages and continues to suffer. Further, that despite demand and notice of intended sue the defendants had refused to apologize and/make admission or in whatever manner address the plaintiff’s claim hence necessitating the suit. The plaintiff prayed for judgment against the defendants jointly and severally for:

General  damages  for  defamation ( through libel)

Exemplary damages.

Costs of the suit.

Interest on (a), (b) and (c) at court rates.

In a joint statement of defence dated 21st February 2008 the defendants denied all the specific allegations leveled against them by the plaintiff. In addition, the 1st defendant in paragraph  2 of the defence, admitted instructing  the 2nd defendant  to write  the impugned  letter and the 2nd defendant  too admitted  being the author thereof and publishing  the letter  whose  contents  were set out  in paragraph 4  of the plaint  but averred that the letter  and  the contents  thereof were authored  under  privileged  occossion. The defendants  further contended  in paragraph  5 of the  defence that the  defendants  and the Institute of surveyors of Kenya and  Director  of Surveys had a corresponding interest in the subject matter  and publication  of the said words  which  did not  bear  nor were they capable of bearing or being  understood  to bear the  meaning  inferred  to them in the plaint  or any meaning defamatory to the plaintiff.

Further, the defendants  stated that they were under a legal and  or social  and moral duty to publish the said  letter to  the Institute of Surveyors of Kenya and Director of Surveys who also  had a corresponding  duty to receive  the  letter and investigate  the matters  raised.  The defendants denied  that in publishing  the said words  they were actuated by any malice and maintained that the publication  was  bonafide  in respect to the  subject matter  and  the contents  thereof  were true and fair representation of the facts  of  the subject matter  and or the plaintiff’s conduct.

The defendants  also maintained  that  they had no  control over the  actions  of the  Institute of surveyors of Kenya and Director of Surveys in respect of the plaintiff  and were not  party to the  disciplinary  proceedings  against  the plaintiff  for selling mutation forms for  speculation on the streets” and  neither  were they  responsible  for  or liable  for  his loss  of license  to practice since  the irregularity  on the part of  the plaintiff  was apparent  hence  the disciplinary action for  professional  misconduct  against  him by the  institute of surveyors of Kenya and Ministry of Lands  declining to sell him mutation  forms  was justified  in the circumstances.  They denied the alleged loss and damages suffered by the plaintiff.  The defendants also denied receiving any demand and or notice to sue.  Finally, the defendants contended that the suit is incompetent and incurably defective and should be struck out.

The evidence

Both parties filed witness statements and lists and bundles of documents which they relied on at the trial.   The plaintiff testified as PW1 and stated on oath that he was at all material times to this suit a Land Surveyor duly registered, having qualified on 16th November 1997 as such.  He claimed  in his statement  adopted as evidence  in chief   that  the  2nd defendant  wrote   and published false  and malicious   words  to the effect  that he  had signed  blank mutation forms  for the  1st defendant Peter Njoroge, and alleging that the  2nd defendant’s  client  was  in the process  of disposing  of land parcel LR KIAMBAA/RUAKA/2040. The said letter was drawn by the 2nd defendant on the alleged instructions of the 1st defendant.  It  was addressed  to the Chairman Institute of surveyors of Kenya and copied to  Director of Surveys and that  when the  plaintiff went to the Lands  office Registry, he was denied  service on account that there was a directive  by the  Director  of Surveys  that the plaintiff should  not be  allowed  to purchase  the mutation  forms. He testified  that he had been given  an assignment  by Janet  Wambui and James  Kihiu  over LR  KIAMBAA/RUAKA/2040 but  later  he received  a letter circulating  and alleging  that he had  not  completed  his work.  The letter  came  from the 1st defendant  Peter  Njoroge  yet he  had already completed  the work and handed over  titles to  his two clients  joint owners of the  said land.  He produced 3 certificates of searches for the subdivision of KIAMBAA/RUAKA/2040 dated 3rd June 2011 which subdivision was concluded in May 2007.  These were marked as  P exhibit 1(a), (b), (c).

The plaintiff read to the court the letter which he received from Director of Surveys as authored by the defendants dated 15th June 2007.  He denied that the 1st defendant owned the land which he had subdivided.  He  stated that  when he  went to  the Institute of Surveyors of Kenya he received  the impugned  letter dated  15th June 2007 yet Peter  Njoroge  had not instructed him  to do the work and  neither  was he  the owner of  the land  he had surveyed. As a consequence of the said letter the plaintiff claimed that his license was suspended and he could neither buy nor process any mutation forms to any office.

According  to the plaintiff, the letter  was  defamatory  because   he had no client  by the name  Peter Njoroge  and that he had  completed the work  one month earlier  hence  the letter was false and malicious. He claimed for damages for defamation and denial of livelihood for 7 months.  The plaintiff also produced mutation form No. 251307 and all other documents as filed as his exhibits.

On cross examination by Mr Narangwi advocate for the defendants, the plaintiff stated that he was a full member of Institute of Surveyors of Kenya and a licensed surveyor and estate agent.  He admitted that any member of the public can get information about him from Institute of surveyors of Kenya by writing a letter seeking for information. He stated that albeit   the impugned letter was an inquiry, it was on the wrong subject and Peter Njoroge was not his client and that he had completed   the work concerning the named plot.  He admitted that mutation No. 253369 was not filled up albeit signed and sealed.  He  also admitted that from the  blank mutation form, there  was nothing  he had  certified to  have supervised  but stated that  he was not  aware that  it is  that blank mutation that subjected   him to disciplinary proceedings  before the Institute of surveyors of Kenya, his professional body of which he was a member. The plaintiff also stated that he had not appealed against   the punishment imposed upon him by the Institute of surveyors of Kenya following the disciplinary proceedings.  He maintained that his clients were Janet Wambui Mugo, James Kihiu Njoroge and Janet Wangui who had not sold the land up to 2012.  He stated that  Gitari was his approved Survey  Assistant  and although  a qualified surveyor, he was not licensed  but attached   to the plaintiff who  was a licensed  surveyor  but that Gitari received his own clients  directly, independent  of the plaintiff. The plaintiff confirmed that from the blank mutations, Gitari is purported to have done the work.  He stated that the letter of 26th July 2007 was malicious because it did not connect documents with the work.  He conceded that the impugned letter was an inquiry which never asked that he be disciplined and neither did it suggest that he was hawking mutation forms.  The plaintiff admitted that blank mutation forms were not in order as they did not show any work done.  He conceded that he was disciplined by his peers and he had an opportunity   to defend himself.  He stated that the ill motive was that reference on the blank mutations was wrong.

In re-examination by Mr Mogire the plaintiff stated that Gitari was not mentioned in the letter subject of this suit as well as in the Institute of Surveyors’ of Kenya letter of 15th June 2007.  The plaintiff  stated that  he had not  seen Peter Njoroge  and also  stated that  the blank mutations  had no land reference (title number  and  he did not  know  how those  blanks reached  Peter Njoroge.

Asked by the court, the plaintiff stated that all clients were his but he supervised Mr Gitari who had no license, to have independent clients.  He then stated that Mr Gitari had an independent office away from him and dealt with clients under the plaintiff’s suspension.

At the close of the plaintiffs  case the 2nd defendant David  Mwangi  testified  on oath  and told the court  that he  was an Advocate of the High Court  of Kenya  and adopted  his written  statement  as his evidence  in chief.  He admitted  knowing  the plaintiff and 1st defendant, the latter being  his client  who on 15th June  2007  went to his office and gave  him a history of having  purchased  land from  Janet  Wambui Muhu  which was  excised  from KIAMBAA/RUAKA/2040 and wanted to sell it after  subdivision that  he had given Mr Gitari  of Geoestate  Survey  to complete  the subdivision and transfer  the plot  but it had  delayed  despite numerous  follow ups and that he was  given blank mutation form to sign  by Mr Gitari and when he  asked why it had taken long, Gitari  became  rude and when he perused the blank mutations  he found them signed  by a  Mr Mugo that  the survey  work had been done  in his  office by  his assistant  - Gitari under  his personal direction.  His client the 1st defendant became suspicious and sought legal advice hence the writing of the impugned inquiry letter to the Institute of Surveyors of Kenya on 15th June 2007.  He denied  that the letter  he wrote  was defamatory  of the plaintiff and  stated that  it was  a genuine  and honest  request  for information and clarification  made  in good faith and in no way  meant to injure  the plaintiff’s  reputation.  That  the contents  were true  and no malice  could be imputed  there from  that is  why the Institute of Surveyors of Kenya on  investigating  the matter, found  the plaintiff guilty of misconduct  after according him an  opportunity  to be heard.  He produced his bundle of documents as filed as exhibits, urging the court to dismiss the plaintiff’s claim against him.

In cross  examination  by Mr Mogire, the 2nd defendant restated  that  Peter Njoroge  was his client  and  that he the 1st defendant had received  Summons to Enter Appearance  on behalf.  Of his client as well. That the said Peter  Njoroge  only showed  him the  original title  whose  proprietor  was  Janet Wambui Muhu, mutation  forms and copy  of agreement  for sale  which he  did not  have as  he was not involved  in the  transaction  and since  his client’s instructions  to him were limited to the letter of  15th June  2007.  He stated that the information on the impugned letter was correct.  He admitted attaching copies of  the blank mutations to his letter  to the Institute of Surveyors  of Kenya  and denied ever  receiving any further  instructions after  informing  his client Peter Njoroge  of the response  by the Institute of Surveyors  of Kenya.

In re-examination the 2nd defendant maintained that his letter talked of instructions from his client and it was an inquiry. The 1st defendant did not testify.

Submissions

At the close of the parties’ respective testimonies they agreed to file written submissions.  The plaintiff filed submissions on 28th February 2015 whereas the defendants filed theirs on 21st April 2015.

According to the  plaintiff, the impugned  letter to the Institute of Surveyors  of Kenya  was  false  and defamatory of him because  Peter Njoroge  was never the  owner  of the title LR KIAMBAA/RUAKA /2040.  That the said  letter exposed the plaintiff to  ridicule, contempt, hatred and  disparaged  him in his office, profession, calling, trade or business  in that   the 2nd defendant, on being instructed  by the 1st  defendant should have  verified  the facts from the plaintiff before  publication  and that they refused  to retract  despite  demand.  He relied on Sctott vs Sampson [1882] & QBD 203.  Further, that the statement by the 1st defendant that the plaintiff gave him blank forms was false. That no evidence was tendered to show that Peter Njoroge was the registered owner of the land.  That the defence  of fair comment  did not  lie and  that the contents of the letter  and evidence by 2nd defendant  varied  in that he testified that  the land belonged to Janet Wangui  yet the  said  Peter Njoroge  was the owner thereof which  was false.  That the sale agreement   was not produced and that no instructions letter was shown to have been   given by 1st defendant.  He stated that under Section 33(4) of the Survey Act, he could retain an Assistant like Gitari to work for him or under his supervision, not independently.

In the plaintiff view, the defence  colluded to pass  unsolicited  information  to the Institute of Surveyor of Kenya  regarding  the plaintiff leading to his suspension  by  the  professional  body, based  on unverified malicious information  whose alleged   source was doubtful.  The plaintiff maintained  that the  2nd defendant never  had any  client  by Peter Njoroge since he never filed any statement  to show his  ownership  of the land  hence the plaintiff’s evidence   was uncontroverted.  He relied  on CAT Lipumba V Mzee [2004] EA  105  where the  court  held that the defence  of  fair comment is concerned  with protection  of comment  and on the falsity of the letter, he relied  on Ntabgoba  V Editor  in Chief  the New Vision Newspaper [2004] 2  EALR 243.

On quantum of damages for defamation  the plaintiff relied on  HCC 847/2005 Nairobi  Grace Wangui Ngenye  vs Winfred  D. Kibaro & NMG Ltd where Rawal J awarded  kshs  2 million general damages  and 1. 5 million  aggravated  damages.  He also relied on HCC 1354/2004 George Nthenge v NMG where the plaintiff was awarded 5,000,000 general damages and 2 million exemplary damages for defamation. The plaintiff proposed an award of 1 million general damages and kshs 2 million exemplary damages.  He also prayed for costs of the suit.

The defendants I their submissions  contended  that the  letter  as written  contained truth, was not   false or  malicious  of the plaintiff  and neither  did it mean  to defame  him. Further, that the plaintiff had failed to prove his claim on a balance of probabilities and urged the court to dismiss the suit. The defendants also answered 6 issues.

On issue No. 1,  on whether the plaintiff was a registered and licensed surveyor and a member of the Land Surveyors Board of Kenya, the defendants submitted  that the plaintiff  was a registered  and licensed  surveyor  and member of Land Surveyors  Board  of Kenya and since  the accusation is not that he   was not a licensed surveyor, there  was no defamation.  That the letter inquired of the plaintiff’s standing with his professional body and the latter body had a duty to give information sought.

On issues  2 and 3  of whether  the letter of  15th June 2007  was defamatory it was submitted that it   was not, as it only sought clarification  on the plaintiff’s  status  whether  he was a licensed  surveyor  and procedure  of his  work. That if Peter Njoroge had  no interest  in the land then  Gitari, the plaintiff’s Assistant could not have  given him blank  mutations  signed  and sealed  by the plaintiff purporting  that  survey work had been done  and completed  by J.G. Gitari under the plaintiff’s supervision and direction.  That the plaintiff admitted that  it was unprocedural  to issue  blank mutations and that  there was nothing  wrong with  one making inquiries  concerning actions   of a surveyor  to direct such  queries  to the surveyor’s professional body. Further,  that  the letter of  15th June  2007  was factual  and authored  to recipients  on a privileged occasion and on a matter of  genuine  concern  based on  information  given to  the 2nd defendant without any malice or ill will   as it  was not a complaint  against  him and neither  did it seek that he be  punished  by his  professional body.

On issues 4 and 5  whether the plaintiff was denied sale and use of mutation forms as a result of the defendants’ letter dated 15th June, 2007 and whether the plaintiff had suffered loss and damages, the defendants  submitted that  they were not liable  as the loss   and damage   came as a consequence  of the plaintiff’s  professional misconduct  after due process  was followed and no appeal was made challenging  the punishment   meted  out on him by the disciplinary  committee of the Institute  of Surveyors of Kenya  and  that  the defendants  had no  control over  that process  or decision since  they were not  even called as witnesses.

On issue 6 whether defence of  qualified  privilege   was available  to the defendants  the defendants submitted that it  was, since  they had  sufficient  interest  in the matter  and had a legal and moral duty  to inquire and ascertain whether  the process  of surveying  land was being done by qualified  professionals  and in the right  manner  and that concurrently, the Institute of Surveyors  of Kenya  had a  corresponding  interest  and legal duty to  receive  the inquiry and respond or deal in accordance  with their laws  of the profession. They relied on CA 20/79 UON V Mbuthia [1985] KLR 821,andNicholas Ombija V KCB Ltd [2009] KLRon definition of and ingredients of defamation.  The defendants urged the court to dismiss the suit by the plaintiff with costs.

Determination of issues

I have  carefully reviewed the pleadings  by the parties, the  evidence  as adduced on oath  by both  the plaintiff and 2nd  defendant and 2nd defendant  and the documents  relied on  as well  as  the able  rival submissions  filed by  both parties’ advocates. This being an action for defamation, the first question and issue  to be considered  is whether  or not the plaintiff  was defamed  by the defendants and second  is what  would be the consequences  of the answer to  the first  question above.

The defendants  admitted writing  the impugned  letter to the  plaintiffs professional body making  inquiries  as to whether  he was a registered  surveyor  and if  it was in order for blank  mutation forms to be  given out, duly signed and  sealed without  any works having been done.

The plaintiff in his evidence  in chief complained that as a result of that  letter, his  license   was suspended and  he  could not  buy or process  mutations forms from any  office and that the  letter was  defamatory  because he  had  no client  called Peter Njoroge; that the land  was not registered  in Peter Njoroge’s name; no  title or sale agreement  was produced; he had completed  the work for his client;  that  the defendant never verified  before writing  the letter; and the letter was false. In cross examination the plaintiff stated clearly that  a member of the  public would get information  from the Institute of  Surveyors of Kenya  or Land Surveyors  Board concerning   him and  his practice  or get such information  from the Kenya Gazette  or from office of Director  of  Surveys.  Further, that the letter was an inquiry but on the wrong subject.  He also admitted to signing and sealing blank mutation forms No. 253369. He admitted that the  inquiry letter did not suggest that he be  disciplined; admitted that  he  was  disciplined  by his peers for hawking blank mutation forms and that due process  was  followed.  He also admitted that it was wrong to have signed and sealed mutation forms like the ones subject of this case, confirming that work had been done when no such work had been done.

On the other hand, the 2nd defendant is an advocate of the High Court of Kenya.  He admitted writing the impugned letter.  However, his defence is that he wrote it on instructions from his client the 1st defendant, to inquire on the matter from the plaintiff’s professional body.  He denies that the letter had any defamatory content and contends that it was written on a qualified privileged occasion.  Further, that it was fair comment, contained the factual  truths  and that him and his client, and  the Institute of Surveyors of Kenya had  legal, social  or moral duty  to seek and  or receive  such information genuinely.

In a defamation suit, be it libel  or slander, and  based on the locus  classicus case of Joseph Kudwoli v Eureka  Educational and Teaching  Consultants  & 2 Others  HCC 126/1990, the plaintiff  must prove that:

The matter of which he complains was published by the defendant.

It was published of and concerning the plaintiff.

It is defamatory in character.

It  was published  maliciously;  and

In slander, subject to certain exceptions, that he was thereby suffered special damages.

As I have stated above, the publication of the letter and the fact that it concerned the plaintiff is not in dispute. What is disputed is the allegation that the letter was defamatory in character and that it was published maliciously. In this case, it is clear from the impugned letter that, the relationship between the 2nd defendant and the 1st defendant and even from the plaintiff’s plaint, was that of between advocate and client.  It is a fiduciary relationship  which is  protected  under the law and  therefore  communication by  the advocate  on behalf  of  his  client  is protected  by dint  of Section 134  and 137 of the  Advocates  Act Cap 76 Laws of Kenya.  In addition, that  communication was made as an inquiry by the advocate  on behalf  of his client, to the Institute of Surveyors  of Kenya, a plaintiff’s  professional body responsible  for keeping  the standards of registered  and licensed surveyors in Kenya  who then  wrote to the Land Surveyor’s Board  and copied it to  the Director  of Surveys.  The Institute of Surveyors of Kenya responded to the 2nd defendant’s letter thanking him for bringing of the matter to their attention.

For the words  complained  of to be  defamatory, they must tend to lower  the plaintiffs reputation in the estimation of right minded  persons  or must cause  him to  be shunned  or avoided.  The said words or publication must also be false. In this case, the evidence shown by the blank signed and sealed mutations by the plaintiff speak for themselves and he did not deny that fact.  Secondly he admitted that it was wrong to have blank signed and sealed mutations portraying the work was done, to the contrary.  Third, he admitted that he was disciplined by his professional body based on those blank signed   and sealed mutation forms and that due process was followed.  Lord  Coleridge  CJ in Bernard  & Another  v Periman  (1891-4) ALL  ER 965 held that:

“ The right  of speech is one  which is  for the public interest  that individuals  should posses, and indeed, that they  should exercise  without  impediment, so  long as  no wrongful act is done; and unless  an alleged  libel is untrue  there is no wrong  committed.”

In the instant case, I find that  the letter written by the advocate  on behalf  of his client  the 1st defendant enjoyed absolute  privileged  communication and secondly, the matter  complained of or the substance therein was the  issuance  of blank signed  and sealed  mutation forms  which was the truth  and further, it was truly admitted by the plaintiff that it  was wrong  to issue  such blank signed and sealed  mutation forms. It therefore follows that the disciplinary action that was taken against the plaintiff by his professional body was justified in view of his professional misconduct.  There is no evidence that the plaintiff challenged that conviction for his wrong doing and the punishment meted out on him by the Institute of Surveyors of Kenya.  It would appear that he sought to challenge it through these proceedings, which I find an abuse of the court process.

Lord  Denning  MR  In Frazer  V Evans  & Others  [1969] ALL ER 6 stated:

“ There  are some  things which  are of such  public concern  that  newspapers, the  press and  indeed  everyone  is entitled  to make known  the truth  and to make their  comment on it.  This is  an integral  part of the right of speech  and expression.  It must  not be  whistled away.”

In my view, the matters which were raised in the impugned  letter were  not defamatory.  They  were matters  which the  public deserved to be  protected  against  and an inquiry  regarding  the matter, which inquiry   led to disciplinary action against the plaintiff , cannot  translate  into defamation especially  where the complaint  was found  to have substance  and the plaintiff disciplined accordingly. Furthermore, the said words having  stated the truth upon  which  the plaintiff  was disciplined, the plaintiff’s reputation could therefore  not have been disparaged  or lowered in the estimation of right thinking members of the society generally. It was not proved that the words were unjustified   and therefore maliciously published.  Malice can be inferred from a deliberate or reckless or even negligently ignoring of facts, which was not the case here. Although the plaintiff alleged  that it was false to state  that the 1st  defendant was his  client  or that the said defendant owned  the land, the  truth  of the matter  that led to his  conviction by the plaintiff’s professional  body and suspension was on account of him signing  and sealing blank mutation  forms and  which  was found to be a professional misconduct.  The blank mutation  form produced  in court spoke  for itself and therefore  there  was in my view, no recklessness or negligently ignoring  facts.  In addition, the language used in the letter was indeed an inquiry language which was not disproportionate to the facts.

The plaintiff did not prove any malicious intention on the part of the defendants in publishing the impugned letter. Malice  may also be inferred  from  the relations between the parties  before  or after the impugned  publications  itself, or in the  conduct  of the defendant  in the conduct of the proceedings.  In this case, the plaintiff never adduced evidence that he had any relationship with the defendants prior to the publication of the impugned letter.  The 2nd defendant only came to learn of the plaintiff’s existence from the blank signed and sealed mutation forms.  What then would be the motivating factors for the defendants to seek to defame the plaintiff?  There  was no evidence  that the  words complained of were false  or that the defendants  intended  to fix the plaintiff in a bid  to settle past scores or  differences   ( See Phineas  Nyaga vs  Gitobu Imanyara [2013] e KLR.

Albeit the plaintiff  attempted  to state that the  1st defendant  was a  fictitious  party, one would wonder  why a plaintiff would sue  a nonexistent or unknown party and only hope  to catch that party  through another  person sued jointly with  a fictitious party. Additionally, this court finds that  the 1st defendant  had no  obligation to defend  this suit  or  adduce evidence, if the evidence  adduced in this case  did not  even point  to him as the person  who authored  the offending letter to the Institute  of Surveyors of Kenya.  The burden of proving  the plaintiff’s case  on a balance of  probabilities  lay on the plaintiff who alleged, even  if this  suit  was not defended  or even if   it  proceeded  by way of formal proof.  The  evidence on record, taken as a whole  vindicates  the defendants  from allegation  that they  connived  to perfect  their ill motives  against the  plaintiff.  I must also mention that under Order 2 Rule  7(3) of the Civil Procedure  Rules-

“2 Rule  7(3)  where, in an action for libel  or slander  the plaintiff alleges  that the defendant  maliciously published the words or matters  complained of, he need not, in his plaint  give  particulars  of the facts in which he relied  in support  of the  allegation of malice, but if  the defendant  pleads that  any of those  words or matters  are fair comment on a  matter of  public interest, or were  published  on a qualified  occasion and the  plaintiff intends  to  allege that  the defendant was  actuated by express malice  he shall  file a  reply giving  particulars   of the  facts and matters from  which the  malice is to be  inferred.

In this case, the plaint did not provide any particulars of malice.  The plaintiff only stated the particulars of defamation and in his testimony he maintained that he was defamed and that the letter was malicious.  It therefore  follows that   pursuant  to Order 2 Rule 7(3)  of the Civil Procedure Rules above, the defendant  having raised the defence of  fair comment on a matter they  were under  a social, legal or moral  duty or inquire   about and that  the letter  was published  upon a  privileged occasion at paragraph 5 b and c of the defence, the plaintiff should have filed  a reply thereto giving particulars  of  facts  and matters from  which the  malice  is to be  inferred.  This was not done.  Whereas I do not find that omission to have been fatal to the plaintiff’s suit, I nevertheless find that there was no evidence that the publication was actuated by any express malice or ill will.  Surveyors are professionals.  They are governed by the law in their practice whether in public or private sphere.  They are regulated by public as well as private entities like Institute of   Surveyors of Kenya and or Land Surveyors Board.  Just like lawyers  whose practice is governed  by the Advocates Act  and the professional body Law Society of Kenya  a statutory body, it cannot  be expected  that a member  of the public  who inquires  about their professional standing  with the bodies  that regulate  their practice, is actuated  by  malice.  If that were to be the case, then members of public   would suffer in the hands of quacks or unlicensed   professionals who are not accountable to anyone without a remedy.  Each profession espouses integrity, professionalization, transparency and accountability as their core values.  It would  be a traversity  of justice  and a violation  of those core  values  and principles  which are  even recognized  by Article  10  of the Constitution, for this court to  overthrow  or sacrifice  those principles  and core values  at the altar  of protection of an individual’s  reputation and earnings.

To crown it all and nail this suit to the cross, the impugned letter was written in the ordinary course of the advocate’s duties.  That letter enjoyed both absolute and qualified privilege.  It is not actionable in defamation.  It is for  those reasons that I dismiss  the plaintiff’s  claim against  the defendants  jointly and severally  for failure  by the plaintiff to  discharge  the burden of proving  his case against  the defendants on  a balance of probabilities.

I must however, determine what damages I would have awarded the plaintiff had he succeeded in proving his case against the defendants on a balance of probabilities. The plaintiff claimed for general damages and exemplary damages.  He relied on decided cases in asking for kshs 2 million and kshs 1 million for general damages and exemplary damages respectively.  The court  is entitled  to award  damaged for  injury to reputation even though the claimant  is unable  to prove any financial loss . Distress damages act as a vindication rather than merely compensatory in the ordinary sense and they also serve as an effective deterrent.  What the claimant seeks in an action for defamation is to vindicate his reputation, to clear his name considering that reputation has value, once tainted by unfounded allegation, it can be damaged forever and that is why it is also protected under the Constitution.

On exemplary damages, the court is entitled to look at the whole conduct of the defendant from the time libel or slander was published down the time the verdict is rendered. In  this case, the defendants  were  served with  notice but  they did not  respond.  In my  view they were  not entitled to  respond or even  offer an  apology as there  was  no defamatory  malicious  false hood peddled  against  the plaintiff  demonstrated, upon which  they would be required  to offer such apology or explain why the  letter  was written  since it speaks  for itself as an inquiry.

An award of damages should not enrich a party but restore him to the position he was in before the injury if any.  In John V MGN Ltd [1997] QB 586 the court held:

“ In assessing  the appropriate  damages  for injury to reputation  the most   important  factor  is the  gravity  of the libel; the  more closely  it touches the  plaintiff’s personal integrity, professional reputation, honour, courage, loyalty and the core  attributes of his personality the more serious  it is likely to be the extent  of publication is also  very relevant; a libel published  to millions has a greater potential  to cause  damage  than a libel  published   to a handful of people.”

Further, awards   in past decisions are mere guides and each case depends on its own circumstances. This court  appreciates the authorities  cited  by the plaintiff’s counsel being HCC 847/2007 Nairobi Grace Wangui  Ngenye v Wilfred D. Kibarp & NMG  Ltd  where Rawal J awarded  shs 2,000,000 as general damages and kshs  1,5000,000 as aggravated damages s to the plaintiff who was a magistrate and in HCC 1354 of 2004 Nairobi George Nthenge  v NMG Kshs 5,000,000 general damages  and kshs 2,000,000 exemplary damages  were awarded to the plaintiff who was  a politician.  He urged the court to award him kshs 2 million general damages and kshs 1 million exemplary damages.  Combining the above decisions to the one before me and doing the best  I can, and based on Patrick  Nyoike V People Ltd [2013] e KLR where a Permanent Secretary in the Ministry of Energy  was awarded  kshs 4,000,000 general damages  and  kshs 100,000 aggravated  damages, I would  have awarded   the plaintiff kshs  1,000,000 general damages  and kshs  200,000/-exemplary  damages, as the purported  publication  was only  made once  to the Institute of Surveyors of Kenya and there  was no claim or proof  of  any misconduct  by the defendants  before, during and  at the time  of  hearing and or rendering  of this  decision.  However, as the case   was not proved, I award the plaintiff nothing.

In the end, I dismiss the plaintiff’s suit against the defendants   jointly and severally.  I award costs of this suit to the 2nd defendant only as the 1st defendant never testified or participate in the proceedings although his defence was on record jointly with the second defendant.

Dated, signed and delivered in open court at Nairobi this 1st October 2015.

R.E. ABURILI

JUDGE

1/10/2015

Coram R.E. Aburili J

C.A. Adline

Mr Naragwi  for the defendants

Plaintiff   Muriithi Mugo  present in person ( says his  advocate   went to Limuru  for an urgent  matter)

Court-   Judgment  read and pronounced   in open court as scheduled.

R.E. ABURILI

JUDGE

1/10/2015

COURT-   Judgment to be typed and supplied to the parties upon payment   of requisite fees.

R.E. ABURILI

JUDGE

1/10/2015