MW v Headlink Publishers Ltd [2015] KEHC 2601 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL CASE NO.  297 OF 2015

PROF. DR. DR. MW……………PLAINTIFF/APPLICANT

VERSUS

HEADLINK PUBLISHERS LTD………….DEFENDANT/RESPONDENT

RULING

The plaintiff/applicant has approached  the seat of justice  and vide a  plaint dated 16th August 2015, filed  simultaneous  with an application  for injunction, claims that the  defendant  Headlink Publishers Ltd  did by their  weekly publication “ the [Particular Withheld]” Newspaper VOL. 17 NO.  34 of    24th August -30th August 2015, publish  of  and concerning  the plaintiff in their caption  “Sex escapades  unravel  at Lawyers  conference” alleging that the plaintiff  Professor Dr. Dr. MW  was involved in the alleged sex escapade  at the[Particular Withheld] Lodge Mombasa.  Paragraph 16 of the plaint  reproduces the actual  words as published  by the defendant which  the plaintiff avers were defamatory  of him, his reputation  being tainted  and in the eyes of right  thinking members  of the society, he is  now considered to be a person of loose morals.  He denies  that  the said  publication had any  scintilla of truth  and contends  that the  same is actuated  by malice, and calculated  to portray  him as  an extremely  amorous  person and therefore  unfit to hold the  public positions   that he holds as  a law lecturer, Dean, school of  law  at [Particular Withheld] University, Associate professor  of law among other public  positions, as he was also alleged to be soliciting sex from young university students in consideration for academic marks.

He prayed for general damages, compensatory and aggravated damages, an injunction restraining the defendants whether by themselves, their agents, servants and or any other  person acting  on their behalf from circulating, distributing, selling, any further  publication  or any  other  dealings  with the impugned story  touching  on the plaintiff  in print  or electronic form; an apology on the front  page  of their news paper; An injunction restraining  the defendant  from making  any further  or future  publications of the [Particular Withheld]  Newspaper  until  and unless they offer  an apology; and costs  of the suit .

Vide  a Chamber  Summons dated  26th August  2015  and filed  in court on  28th August  2015, the plaintiff sought  from this  court order:-

Spent

Spent

That  the respondent /defendants whether  by themselves, agents  or servants  and or any other person acting on their behalf  be and  are hereby restrained by an injunction from circulating, distributing, selling, any further  publication or any  other dealings with  the story in [Particular Withheld] Newspaper  VOL 18 NO.  34 of August 24th-30th 2015 touching on the applicant/plaintiff in print or electronic form.

That the respondent/defendant issue an apology to the applicant/plaintiff on the front page of their newspaper.

That  the respondent/defendant  whether  by themselves, agents or servants  and /or any other person acting on their behalf   be and are  hereby  restrained  from making  any further  and future  publications in the [Particular Withheld] Newspaper until  and unless  they comply with the orders in (3) and (4) above .

That costs of this application be awarded to the applicant/plaintiff.

The application is premised on 20 grounds on the face of the application and a supporting affidavit by the plaintiff professor Dr. Dr.MW sworn on 26th August 2015.  The  depositions  in the affidavit  mirror grounds and  principally, the plaintiff  deposes that  he is  the person whose  photograph  appears  on page 1 and referred  to by   name at  page 23  of the [Particular Withheld]  Newspaper  VOL 18 NO.  34 of August 24th-30th 2015 as shown by an annexed original newspaper in question and marked MWO1.

That  he attended an annual Law Society Kenya Conference  of 2015  from 13-15th (sic) and spent  two nights  at the [Particular Withheld] Hotel  and that contrary to  the publication by the defendant  he was neither  involved  in nor is he aware  of any sex escapades  at the lawyer’s conference  2015.

Further, that during his stay  at the  hotel, he did not  entertain any lady leave alone  the alleged not  less than 4 ladies in his room  and neither  did he  solicit  for sex  from the wife  of a prominent  advocate  as alleged, or even sending her a text message  using  his phone.  The plaintiff continues  in his depositions  that contrary to the publication, he has never been  sacked  as Dean Faculty  of Law as  alleged and neither has he ever been subjected to any disciplinary proceedings  on allegation of sex  for marks and  neither was there any  such pending  complaint  against him  since he is an objective lecturer.

The plaintiff  further deposes that he  is  the founding Dean of [Particular Withheld] University School of Law  which position  he founded in June 20111 and  which term expired  in August  2012  as shown by annexture MW O2  with a subsequent  reappointment in August 2014  as shown by annexture MO3 .  He also deposes that  he  is Associate  professor  from 5th August  2014  and that if he were the kind of person described  in the defendant’s publication, he would  not be retained  as professor.

The plaintiff avers that he holds other  positions  as a senior Scholar  at the University of [Particular Withheld]  as shown by his letter of appointment MO5;  a member of the [Particular Withheld] Committee  of the National Council of Science, Technology and Innovation as shown by his letter  of appointment MO6; appointed  as member of the Anti-doping  Agency of [Particular Withheld](MO7); served  as resource person  for Ministry of Sports, Culture and Arts MWO8, Council of [Particular Withheld] Education MWO9; [Particular Withheld] Technical Training Institute (MW10); and that  the publication in question  widely being circulated via Whatsup medium and going wider beyond  geographical immigration, which publication has injured his reputation  both domestically and internationally.  The plaintiff also filed evidence of  a demand letter dated  25th August  2015  having  been  served upon the  defendants urging  them to offer  an  apology, withdrawal  of all offensive  copies  form the market  and an  admission of liability which service  was  effected on 1st September 2015  but that the  defendants have persisted  in circulating  the publication and that they had  not offered any apology.

Vide  an affidavit of service sworn by Charles Soita  on 9th September  2015, the plaintiff effected  process  on the defendants by affixing a copy of summons  on their  front  door  at  their Summit  House, Moi Avenue  5th Floor  Room 310 after  they refused  to acknowledge  receipt  and the plaintiff  also send  the  said summons via email to [Particular Withheld] @ yahoo.com; info@ the [Particular Withheld].co.ke  on 8th September 2015  at 15. 48 hours but  there was no response  to the application  and neither  was there  any attendance  in court on  10th September  2015  by the defendant’s  representatives  when the  application was heard.

The  affidavit  of service  by Saib Wasike  sworn on 4th September 215  show that  the certificate of urgency, chamber summons, supporting affidavit, plaint, verifying  affidavit, list of witnesses  and list of authorities  were on  1st September 2015  served upon the defendants at their  offices  along Moi Avenue, Summit House 3rd Floor Room 310 and were received  by Mr Tom Alwaka  who acknowledged  receipt  by signing  on the copies.

The plaintiff was granted leave of court on 10th September 2015 to be heard during the vacation and he argued his application in person   not only as a party to the proceedings herein but as an advocate of this Honourable court.  He urged this court to grant  him the  prayers  sought  in the interim for reasons  that he  had been  highly defamed by the defendants  publication which  bore no truth  or at all in it and  that the  said publication was done  with malice, calculated to injure his  reputation, being a renowned scholar  and public  figure  in and out  of the country  of Kenya, serving  as Associate professor and Dean  of [Particular Withheld] University , that his photograph was prominently placed  in the said  publication on the front page  and the relevant article  did not hide the  naming  of  him as the one at  the centre of the  alleged  sex escapades at Leisure  Lodge during the  lawyers  Annual Conference  held in Mombasa  in 2015 .  He relied on the cases of CFC Stanbic Bank Ltd v COFEK to advance the proposition that the defendants were under a duty to verify the allegations from him before publishing it.

The plaintiff also submitted that  he had established a prima facie  case with high chances of success  and relied on Dorcas  Florence  Kombo v Royal Media Services Ltd case and  in his view, he had  satisfied  the conditions  for grant of  orders  sought against the defendant.

I have carefully considered the application by the  plaintiff/applicant, he grounds  thereof, supporting affidavit and  annextures together with the  authorities relied  on in the brief  submissions  made  by the applicant prose.

The only issue for determination at this stage is whether the plaintiff has made out a case for the orders sought in the application dated 26th August 2015.

It is not denied that the subject publication exists.  The original annexed to the supporting  affidavit  of  the plaintiff  had prominent display  of the plaintiff’s photograph  at the top  right and  the first  writings in white  pink background  titled” Sex escapades  unravel at Lawyers  conference”( page 23).  At page 23  of the  said paper  the lower part of the page is titled “ Lawyers turn into  he-goats  in annual Mombasa  conference.” Part of  the article states in the second  column from third  paragraph:

“A case in hand is that of a law professor MW, a Sports enthusiast who doubled up as a presenter at the said conference.  The professor booked on room 71 at Leisure Lodge, it is alleged not less than four young advocates visited and spent the right in room 71 with the professor lawyer.  The big question then is how is the same “respected” law don and Law Society Kenya presenter who is expected to instill ethics   found in such a compromising situation.  Could the young advocates be the ones soliciting for sex from them?

The Don allegedly portrays   a different character  during the day as “ a gentleman” and resorts to weird  character  at night  a kin to a person who preaches water  and drinks  wine……. He  is known  for his  generous invitations for tea, lunch or dinner  to  young  advocates, students  and colleagues  whom he seduces, it is claimed”………..

Things backfired on the professor on August 14th 2014 at midnight when he allegedly attempted to solicit for sex from wife of a prominent city advocate who was attending a conference.  According to SMS allegedly sent by the professor through his mobile number [Particular Withheld] at 12. 14 midnight to the lady advocate which reads:

“I saw u dancing are u through I come and pick you’ I am in room No. 71 can you come over” After the message went unanswered, he quipped.

“Hey, hope you are not mad at me”

It is now claimed that the professor was on a hunting mission was soliciting for sex from a married young advocate but his advanced were thwarted.

It is  said the  lady in question who is  respected d and religious  was recently married in a show case wedding  to a prominent  city lawyer  repulsed  the professor’s attempt  and reported the incident to her husband.  Efforts to reach the professor on his phone for comments were futile.”

I have carefully examined the article as reproduced above in part in the plaint and as contended in the application herein.  The words as published are not minced.  They directly refer to none other than the plaintiff whose picture is prominently displayed thereat.  The only issue  is whether  the plaintiff  has  established, prima facie, that  the said words  carry defamatory meaning  in their ordinary sense or by innuendo  thus lowering  him in the estimation  of  right thinking members of the society  generally and that they are malicious.

The words complained of referred  to the plaintiff  as one of he-goat  lawyers  at the annual conference  who was soliciting  for sex from  young female  advocates including  an advocate  who was recently  married  to another advocate.  Secondly, that those students solicit sex from him in consideration for marks at the university where he teaches.

For a renowned  scholar, and public officer, as evidenced from  the array  of appointment  letters annexed to his affidavit in support, a Dean of  a public law  school and a lecturer  who is expected  to instill  ethics and integrity in student  lawyers  whose moral fitness  is one of the  values  that matter before  being admitted  to the bar, and noting  that Chapter 6 of the Constitution  commands  public officers to uphold  high standards  of moral character, such  allegations of a university  Don  going on a sex holiday with young  advocates  including  a married one  and having sex  for marks   with students  is not  a light one.

Any right  thinking member  of the  society including  the plaintiff’s employer, family members, friends, students associates  and  even prospective  employers  reading  such information  may have  serious  reservations associating  with such a  person  and will view  him with  contempt and ridicule  upon reading  the publication  which is weekly and widely published  and read in this country  as a gutter press. The said paper can also be accessed globally online in today’s digital environment.

Therefore, in my view, prima facie, the published words are defamatory of person of the plaintiff and are calculated to injure his reputation and character by exposing him to public odium as a person who is morally unfit to hold public office.

On whether  the words as published  were actuated  by malice, this court  adopts the holding  by Odunga J in Phineas  Nyaga  v Gitobu Imanyara  (2013) e KLRthat :

“Evidence if malice may be found in the publication itself if the language used is utterly beyond or disproportionate to the facts.  That may lead to an inference of malice………..Malice may also be inferred from the relations between the parties………..

The  failure  to inquire  in the facts  is a fact  from which inference  of  malice  may properly be drawn.”

From the  pleadings, the publication and affidavit  evidence  on record, and  the language  used in the said publication  such  as “lawyers turn into he-goats” and “ amorous  senior advocates  pay for their younger colleagues  to attend  the conference during which  period they  engage  in sexual escapades”  “the annual event has  lost its meaning  and turned  into sex  holiday  in the name of a conference.”Parenthesized connotations such as:  - how is the same “respected” law don……….“the don allegedly portrays  different  character  during the day as “ a gentleman”  and resorts  to weird  character  at  night  akin to a person who  preached  water  and drinks wine,” this  court  infers  malice  on the part of the defendants who  have not filed any response  to the application herein invoking the defence  of truth  or justification as the language  used in the publication is reckless and is  utterly  disproportionate  to the facts.

The defendant’s publication alleges   that the information was received from its undercover reporter.  The plaintiff  did issue  demand letter on 1st September  2015  seeking  an apology, withdrawal of  the offensive  copies of the publication  from the market  but  the defendant  has not  responded  to that  Demand Notice  and neither  has it published  an apology or shown any intention  of withdrawing  the  offensive  edition  of the publication from the market  which is not  only found  in print but  electronic  form.

In view of the foregoing observations it is arguable  that the plaintiff  has, prima  facie, on a balance  of probabilities, at this interlocutory stage, established  that the defendant has defamed  him unjustifiably  by publishing  defamatory matter.  The [Particular Withheld] weekly paper, it is not denied, has wide circulation and readership.  Nonetheless the plaintiff only alleged that it was circulating on whatsup.  He did not   attach any evidence of publication via electronic or social media means.  What therefore  remains  unchallenged  at this stage  is the  publication  via print   media as shown by the original  newspaper  annexed  to the supporting affidavit  of the plaintiff. This, however, is not to say that the said publication cannot be accessed online in this hysteric electronic age.

There is also no evidence that there has been a republication of the defamatory allegations.  However, a publication is  a  publication, as long as it is defamatory, it injures the character  and reputation  of the person it  refers to, and  exposes  that  person to public  ridicule  and odium.  It  lowers  his reputation and in  this case, the plaintiff has demonstrated  that he  is a  responsible  member of the  society  and serving in public institutions of higher learning both at the domestic level and regionally. For such a public figure who is also variously described as sports enthusiast, and whose holding of public office as well as private office can be gravely affected  by the said spurious  allegations, Iam satisfied that the words as published would injure him in his reputation and profession.

This court exists to protest the rights of individuals so that they are not trampled upon with impunity.  The tort of libel unclothes a person and exposes him to ridicule.  He loses his human dignity when he is recklessly described the way the plaintiff herein was described in the publication.  That kind of sexual appetite and group sex orgies only happens to the stars in the soap operas.

We live in a society that upholds values and principles which include human dignity, high morals and respect for the reputation of others.  These values and principles are enshrined in the Constitution and bind all.  The right  to freedom  of the media  and of expression  are subject  to the right to  respect  other people’s  rights to human dignity  and to the  respect of  the reputation  of others.  It is not an absolute right.  Reputation  is an integral and important  part of the  dignity of the individual and once besmirched  by an unfounded allegation, one’s  reputation can be damaged  forever, especially if there  is no opportunity  to vindicate  one’s reputation  see Nation Media Group  Ltd & 2 Others V John Joseph Kamotho & 3 others (2010) e KLR.

This  court is conscious  of the fact that  application for  injunction in defamation cases  are treated  differently from ordinary  cases because they bring out  a conflict between  private interests  and public interests As was held by Lord Coleridge, CJ  in Bernard & Another V Periman (1891-4) ALL ER 965 that

“ The  right of speech is one which  it is  for the public  interest  that individuals  should possess, 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.”

Lord Denning MR in Frazer V Evans & Others (1969) ALL ER 6 was also instructive that:

“ 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 in it .  This is an intergral part of the right of speech and expression.  It must not be whistled away.”

However, Article 33(2)  of the Constitution  is clear that  in as much as freedom  and independence  if the electronic, print and  all other types of media  is guaranteed  in Article 34, that  freedom  does not  extend to among  others, hate speech or advocacy of hatred  that constitutes ethic incitement, vilification  of others of  incitement  to cause harm or is based on any ground of discrimination  specified  or contemplated  in Article 27(4). And in the  exercise  of the right to freedom of expression, every person shall respect  the rights  and reputation of others.

Defamation  of a person’s character  is taken to be until it is proved to be true  and  if a person has stated  that which is false  and defamatory, malice  is also  assumed.  See KL V Standard Ltd (2014) e KLR.

Though  generally speaking, the conditions  applicable  is granting  interlocutory injunctions  as set out  and settled  in the case of  Giella V Cassman  Brown & Co Ltd  (1973) EA 253 generally apply, , in defamation cases, it has  been held time and again that those conditions  operated in special circumstances.  The court’s jurisdiction to grant an injunction   is exercised with greatest caution so that an injunction is granted only in the clearest possible cases.  The court must be satisfied that the words or matter complained of are libelous and also that the words are so manifestly defamatory that the verdict to the contrary would be set aside as perverse.  (See Cheserem V Immediate Media Services (2000) IEA 371.

Courts have also been firm that where a mandatory injunction   is sought, there must be special circumstances.  Thus, the case must be  clear  and one which  the court  thinks  ought to be  decided at once, or if the act done is simple and summary  one which  can  be easily  remedied, or if the defendant  attempted to steal  a match on the plaintiff. See Kenya Breweries  Ltd  v Washington Okeyo CAPP 332/2000 and Halsbury’s Laws  of England VOL 24, 4th Edition  at paragraph 948.

I have carefully considered the impugned publication.  I find the words  used therein, with  the captioned  coloured picture  of the plaintiff not  only defamatory but highly  inflammatory, and are calculated to caused hatred and ridicule  against the  plaintiff in the estimation of right thinking members of the society generally.  Any reasonable  fair minded  person  reading  that article  gets a straight message that the plaintiff is engaged  in immoral, amorous, sexual orgies with his students in consideration for marks  and therefore lacks  the moral  or ethical  ethos  to instill any ethics  and or moral standards  in the students  that he is expected  to mentor. That he affords the luxury of going on a sex holiday.

In my view, that is  a clear case of manifest defamation such that  any further  publications  would be highly  injurious  to the plaintiff’s  character and reputation which he  has established, prima facie, to be  respectable.  No amount of damages would indeed adequately compensate his lost dignity and reputation.

I therefore find the prayers sought at this interlocutory stage merited.  In the end, I grant prayers 3 and 6 of the application dated 26th August 2015 pending hearing and determination of this suit.

Prayer  No. 4 & 5  of the application are declined  at this stage since  demand was made  and no apology was offered, and  as prayer 5  is  ambiguous.

Dated, signed and delivered in open court at Nairobi this 15th day of September 2015.

R.E. ABURILI

JUDGE

15. 9.2015

BEFORE R.E. ABURILI J

C.A Samuel

Professor Moni Wekesa plaintiff in person present

No appearance for respondent.

COURT- Ruling delivered in open court as scheduled.

R.E. ABURILI

JUDGE

15. 9.2015