Philomena Mbete Mwilu v Standard Group Limited [2022] KEHC 1375 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL SUIT NO. 226 OF 2018

PHILOMENA MBETE MWILU……….……….......................PLAINTIFF

-VERSUS-

THE STANDARD GROUP LIMITED……………………….DEFENDANT

JUDGMENT

1. The plaintiff herein instituted a suit by way of the plaint dated 17th September, 2018 and sought for judgment against the defendant in the following manner:

a) An order that the defendant do retract and withdraw the offending words and render a suitable apology in terms acceptable to the plaintiff to be published by the defendant in the same prominence as the offending articles.

b) General damages for libel.

c) Exemplary damages for malicious libel.

d) Aggravated damages.

e) A permanent injunction restraining the defendant whether by itself, its servants or agents or otherwise, from further publishing or causing to be published the said defamatory material of and concerning the plaintiff.

f)Costs of the suit.

2. The plaintiff pleaded in the plaint that on 1st September, 2017 the Supreme Court of Kenya rendered its decision on the Presidential Petition No. 1 of 2017 (Raila Amolo Odinga & Another v Independent Electoral and Boundaries Commission & 2 others) thereby nullifying the 2017 presidential elections.

3. The plaintiff pleaded in the plaint that she was among the six (6) judges who heard the Petition and that she constituted the majority that rendered the decision in the manner indicated hereinabove.

4. It is pleaded in the plaint that following the above decision, the plaintiff together with three (3) of her fellow judges were subjected to a series of public attacks and disdain, including but not limited to threats.

5. It is further pleaded in the plaint that vide the publication made in the Standard Newspaper, Edition No. 30881 at page 6 on 19th September, 2017, the defendant published or caused to be printed the headline titled: “Damning petitions link Mwilu and Lenaola to NASA lawyers.”

6. The plaintiff pleaded that on the left-hand side of the above headline was printed the following article by the defendant:

“Documents claim phone numbers belonging to Raila’s counsel and Supreme Court judge were at the same location during hearing of the case.”

7. The plaintiff pleaded in the plaint that the article further contained the following defamatory and malicious words concerning her:

“New twist to Maraga ruling row. Fresh poll storm. Just hours to detailed Supreme Court ruling, new suit filed against two of the four judges who annulled Uhuru win. Page 6.

THE STORY SO FAR…Questions on credibility, integrity and honesty of Mwilu and Lenaola.

Damning petitions link Mwilu and Lenaola to NASA lawyers.

The petitions have been filed against two Supreme Court judges who nullified the August 8 presidential election.

The petitions are accusing the judges of being in contact with lawyers representing the petitioner, Raila Odinga, during the hearing of the case challenging President Kenyatta’s victory.

The Judicial Service Commission (JSC) has been asked to investigate Deputy Chief Justice Philomena Mwilu and Justice Isaac Lenaola, who are accused of gross misconduct in the twin petitions in which the petitioner has attached extensive extracts of phone records detailing the alleged conversations.

The petitions have been received by the JSC, accuse the two of having conducted themselves “under extraneous influences, inducements, pressures, threats of interference, direct or indirect, from and in conspiracy with counsel, officials and agents of the petitioner in the case-Raila Amollo Odinga & Another v Independent Electoral and Boundaries Commission & 2 others [2017]”

The judges are accused of having met and exchanged phone calls with lawyers representing Raila and the Law Society of Kenya (LSK) outside the court room during the hearing of the petition.

Specifically, Justice Mwilu is accused of having had telephone conversations and meetings with Raila lead counsel, James Orengo, Senator Amos Wako and Moses Wetangula, who are all directly involved in the case.

All telephone conversations mentioned in the petition have supporting documents, which appear to have been obtained from a telephone service provider because it also contains mast codes and ID numbers of people involved in the calls.

Mwilu is also accused of having had several lengthy conversations with Senator Orengo through a phone number registered under the name Margaret Orengo, who the petitioner says is his sister-during the entire period of the petition.”

8. The plaintiff pleaded that the aforesaid publications which were rolled off the press in the late hours of 18th September, 2017 and equally made available on the defendant’s online platform, insinuated and could be taken to mean; inter alia; that the plaintiff was directly linked to NASA lawyers through engaging in covert and improper communications with them, and that the plaintiff has no credibility or integrity and is therefore not fit to serve in the position of Deputy Chief Justice.

9. It is pleaded that the impugned publications are not only totally false but were made with the aim of tarnishing her name and reputation in the eyes of the public.

10. It is further pleaded that the impugned publications were widely distributed by the defendant and were therefore accessible to the general public on various platforms both locally and globally.

11. The plaintiff pleaded in the plaint that further to the foregoing, the aforementioned publications were actuated by malice, the particulars of which were detailed under paragraph 18 of the plaint.

12. The plaintiff further pleaded in the plaint that by way of a further publication made on 22nd September, 2017 in the Weekly Edition of the Nairobian, the defendant caused to be published the following defamatory words concerning the plaintiff:

a) “Love at first sight: When Amos Wako met Justice Philomena Mwilu;”

b) “Amos Wako, Philomena Mwilu are a learned power couple;”

c) “Wako, Mwilu fell in love at the Bar.”

13. It is pleaded that the above article which contained factual inaccuracies was reproduced in the manner hereunder:

“Amos Wako, Philomena Mwilu are a learned power couple.”

“Wako, Mwilu fell in love at the Bar.”

“Love at first sight: When Amos Wako met Justice Philomena Mwilu.”

Indeed, Wako had no desire to visit the US of A considering the love of his life resides in Kenya; the comely Lady Justice Philomena Mwilu, Supreme Court Judge and Kenya’s Deputy Chief Justice.

The outgoing power couple has been an item for two decades in a relationship that has been under wraps to majority of Kenyans. But to their closest friends and family, whenever the Lady Justice is around, the bespectacled Wako is never far away, his smile breaking the patterns of his pin-striped suits.

“It’s not like they are hiding their relationship,” a diplomatic attaché in Kenya told the Nairobian, adding that during social functions at the Embassy, it’s a running joke between staffers on how to address their invitation letters either as ‘Hon Wako and Hon Judge Mwilu’ on the same card or to just post the invitations separately.

Amos Wako, a father of two, met and fell in love with Philomena Mwilu, a mother of three, in 1997, the year Kenya held its second multi-party elections.

Wako had been Kenya’s Attorney General for six years at the time. When retired President Moi appointed him to the position on May 13, 1991, he said he was “dumbfounded.”

But Wako was not “dumbfounded” when he laid his eyes on Mwilu who was then working as head of legal department at Jubilee Insurance Company.

It was love at first sight. The world tilted on its axis. Within months, the two were out of control, not caring two hoots about the affair that got tongues wagging in legal circles.

Having found love, Wako and Mwilu fully focused on their careers, with Wako leaving the State Law Office for politics as Mwilu climbed to the second most powerful woman in the Judiciary.

A politician from Western Kenya who is Wako’s friend told the Nairobian;

“I drink with Wako regularly. He loves his whiskey, and he doesn’t mind drinking till late, but in more than a decade that I have been drinking with him, I have never seen him with another woman. He is fiercely loyal to Mwilu, and has never looked at another woman. I would know if he did anything funny.”

But in July, 2011 when Mwilu was a High Court judge a matter came up which led to owning up about her love life.

Lawyer Eric K’Omollo had lodged an application by six women’s groups who wanted Mwilu stopped from hearing their case due to her closeness to the Attorney General in what they argued could be a conflict of interest.

“We have reason to believe that such association or closeness that they have is of a personal nature,” they said, but Justice Mwilu, defending herself said her affair with Wako is “in the public domain, there is nothing to hide. It is okay for it (our closeness) to be discussed in open court.”

At the time, Wako as the Attorney General was a member of the Judicial Service Commission which has been sued jointly with his office.

A three-judge bench dismissed their application which had sought Mwilu’s disqualification from the case on grounds of bias and conflict of interest if she handled the case.

Lady Justice Mwilu is now known as Wako’s de facto second wife, a sharp shooting woman said never to mince words as was evidence when she was asked during her interview for the position of Deputy Chief Justice by the Judicial Service Commission regarding her views on polygamy. She said she supported it “as long as there is peace in the family.”

14. It is pleaded that the above words would in their natural and ordinary meaning, be taken to infer that the plaintiff is engaged in a love affair with Senator Wako and that she is a supporter of polygamy, among others.

15. It is further pleaded that the above words contain malice whose particulars are set out under paragraph 23 of the plaint.

16. Further to the foregoing, the plaintiff pleaded in the plaint that  the defendant vide the article published on 31st August, 2018 in the 6th Edition of the Nairobian, maliciously wrote or caused to be printed the following defamatory and malicious words:

“WHY I DIVORCED MWILU-EX HUSBAND. CASE CLOSED: She sheds tears at the sight of poor market women, but has a side Kenyans don’t know.”

17. The plaintiff pleaded in the plaint that as a result of the defamatory publications listed above, her reputation and character have been subjected to ridicule and contempt by right thinking members of the society.

18. The defendant entered appearance upon service of summons and filed its statement of defence to deny the averments made in the plaintiff’s claim.

19. At the hearing of the suit, it was agreed by consent of the parties dated 17th December, 2021 that the facts of the case on record be adopted without necessitating the summoning of witnesses and that the parties do file written submissions on both liability and quantum.

20. The aforementioned consent was adopted as an order of the court on 20th December, 2021 and directions were given to the parties on the filing and exchanging of written submissions.

21. In her submissions, the plaintiff reiterated that the impugned publications are defamatory and malicious in every sense of the word, adding that the petitions by JSC which were referenced in one of the publications were eventually dismissed and yet the defendant, having full knowledge of that position, left the defamatory material to continue lingering in the minds of the general public and further failed to offer an apology or retraction of the said publications despite a request being made for the same by the plaintiff’s advocate.

22. The plaintiff submits that instead, the plaintiff solely published a public apology to Honourable Mr. Justice Isaac Lenaola on 4th September, 2018 in its Standard Edition in respect to the publication made on 19th September, 2017 and which publication also made mention of the plaintiff.

23. Concerning the publication made on 31st August, 2018 the subject of which concerned the plaintiff’s previous marriage, it is the contention of the plaintiff that her previous marriage had been dissolved back in 2015 which begs the question as to why the defendant chose to publish the subject years later thereby exposing the plaintiff to public ridicule, unless its intention was purely to injure the reputation of the plaintiff.

24. The plaintiff submits that going by the context and timings within which the publications were made, it is evident that the same were fuelled by malice and ill-will on the part of the defendant.

25. The plaintiff further submits that the defendant has not led any evidence to show that the impugned publications were a fair and accurate representation of the facts, or to show that they were truthful in nature. The plaintiff is of the view that as such, the defendant is in contravention of the proviso of Regulation 2 of the Code of Conduct set out in the Second Schedule of the Media Council Act, No. 46 of 2013 which stipulates that a publication ought to be unbiased, reporting on both sides of the story, seeking comments of those mentioned adversely, promptly correcting any inaccurate, misleading or distorted story, not to publish any story that falls short of factual accuracy and fairness, distinguish clearly in the reports between comment, conjecture and fact, ensure that headings reflect and justify the matter being printed under them, treat all subjects of news coverage with respect and dignity and present analytical reporting based on professional perspective not personal bias.

26. It is the submission by the plaintiff that the defendant did not seek to hear her side of the story or receive her comments prior to making the impugned publications, which led to the inaccuracies and misrepresentation of facts seen therein.

27. It is also the submission by the plaintiff that in view of the foregoing circumstances, the defendant cannot be heard to plead the defence of qualified privilege or any other defence for that matter.

28. The plaintiff contends that the impugned publications are defamatory against her since they were intended to and served the purpose of injuring her reputation and causing her disdain, especially given her personal and professional standing in society as a public figure. To buttress her argument, the plaintiff relies on the case of J.P Machira T/A Machira & Company Advocates v Wangethi Mwangi & another [1998] eKLRin which the Court of Appeal held that:

“Surely, it cannot require any evidence to prove that a lawyer would be hurt in his profession if it is alleged against him that he is being assaulted by his client over money.”

29. The plaintiff further contends that the impugned publications are obviously marred with malice since there is nothing to indicate that the defendant sought to verify the correctness of the allegations prior to releasing the information to the public, or that it sought to hear the plaintiff’s version of events beforehand, with reference being made to the case of Hon. Uhuru Muigai Kenyatta v Baraza Limited [2011] eKLRwhere the court reasoned that malice can be evidenced where the impugned publication or statement was either known to be false by the defendant or that the defendant did not care whether the statement or publication was false prior to publishing it. The court added that malice need not necessarily constitute spite or the pursuit of vengeance.

30. The plaintiff submits that while the media is permitted to report relevant societal matters in the public interest, the same must be done in a fair and truthful manner, while maintaining objectivity.

31. On damages, the plaintiff has drawn the attention of this court to the authority of A M v Royal Services Limited [2013] eKLRwhere the Court cited with approval the following rendition in John v MGN Ltd [1991] QB 586:

“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.”

32. In that respect, the plaintiff proposes an award in the sum of Kshs.50,000,000/= on general damages while relying inter alia, on the following authorities:

a) The case of W M M v Standard Limited [2017] eKLR, where the court awarded the Plaintiff who was the Chief Justice general damages of Kshs. 12,000,000/=.

b) In the case of Christopher Ndarathi Murungaru v John Githongo [2019] this court awarded the Plaintiff who was a former Minister general damages in the sum of Kshs. 20,000,000/=.

33. On the subject of exemplary damages, it is the argument of the plaintiff that going by the reasoning adopted by the Court of Appeal in the case Ken Odondi & others v James Okoth Omburah T/A Okoth Omburah & Company advocates [2013] eKLR,exemplary damages go beyond compensation and are intended to ‘punish’ the defendant.

34. In that respect, the plaintiff prays for an award of Kshs.30,000,000/= under that head.

35. The plaintiff also prays for aggravated damages in the sum of Kshs.20,000,000/= arising out of the fact that the defendant made multiple publications and without issuing an apology upon the request of the plaintiff or at all.

36. The plaintiff also urges this court to grant the permanent injunctive order and public apology sought in the plaint.

37. In retort, the defendant submits that the publications were truthfully and fairly made, and that the plaintiff was granted an opportunity to respond to the same but did not.

38. The defendant further submits that the publications having beenmade as fair comment on a matter of public interest and were made in good faith and without malice, contrary to the allegations being brought forth by the plaintiff.

39. It is also the assertion of the defendant that the plaintiff has failed to prove her case for defamation in accordance with the threshold set in the case of Phinehas Nyagah v Gitobu Imanyara [2013] eKLR thus:

“The elements of the tort of defamation are that the words must be defamatory in that they must tend to lower the plaintiff’s reputation in the estimation of right-minded persons, or must tend to cause him to be shunned or avoided. Whereas mere abusive words may not be defamatory, the speaker of the words must take the risk of his audience construing them as defamatory and not simply abusive, and the burden of proof is upon him to show that a reasonable man would not have understood them in the former sense. However, in libel, the words cannot be protected as mere abuse since it is presumed that the defendant had time for reflection before he wrote them. Secondly, the words must refer to the plaintiff. Thirdly, the words must be malicious. Malice here does not necessarily mean spite or ill-will but recklessness itself may be evidence of malice. Evidence of malice may be found in the publication itself if the language used is utterly beyond or disproportionate to the facts.  That may lead to an inference of malice but the law does not weigh in a hair balance and it does not follow merely because the words are excessive, there is therefore malice. Malice may also be inferred from the relations between the parties before or after publication or in the conduct of the defendant in the course of the proceedings. Malice can be founded in the publication itself if the language used is utterly beyond the facts.”

40. The defendant contends that its actions are justified pursuant to the provisions of Article 35 of the Constitution, 2010 which stipulate that all persons have the right to access information on matters of public interest.

41. The defendant reiterates that the defences of fair comment, privilege and justification which are pleaded in the statement of defence, apply in the present circumstances.

42. On the subject of quantum, it is the submission of the defendant that the plaintiff is not entitled to any of the reliefs sought in the plaint but adds that should this court be inclined to award damages, then the sum of Kshs.500,000/= would constitute a sufficient award on general damages, being guided by the following factors as set out by the Court of Appeal in the case of C A M v Royal Media Services Limited [2013] eKLR:

“No case is like the other. In the exercise of discretion to award damages for defamation, the court has a wide latitude. The factors for consideration in the exercise of that discretion as enumerated in many decisions including the guidelines in Jones V Pollard (1997) EMLR 233-243 include objective features of the libel itself, such as its gravity, its province, the circulation of the medium in which it is published and any repetition; subjective effect on the Plaintiff’s feelings not only from the prominence itself but from the Defendant’s conduct thereafter both up to and including the trial itself; matters tending to mitigate damages for example, publication of an apology; matters tending to reduce damages; vindication of the Plaintiff’s reputation past and future.”

43. The defendant is of the strong view that the plaintiff is not at all entitled to any award under the heads of aggravated and/or exemplary damages.

44. It is the submission by the defendant that the plaintiff is equally not entitled to the injunctive order sought, be it mandatory or permanent in nature. To support its assertion, the defendant has cited inter alia, the case of Kenya Breweries Limited & another v Washington O. Okeyo [2002]eKLR whereby the Court of Appeal rendered itself thus:

“The test whether to grant a mandatory injunction or not is correctly stated in Vol. 24 Halsbury’s Laws of England 4th Edn. para 948 which reads:

“A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but, in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the court thinks it ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied, or if the defendant attempted to steal a march on the plaintiff…a mandatory injunction will be granted on an interlocutory application.”

45. In rejoinder, the plaintiff put in further submissions arguing inter alia, that her evidence has neither been controverted by the defendant nor challenged in cross-examination, pursuant to the consent order adopted in court.

46. The plaintiff reiterates her earlier position that she has proved her case for defamation against the defendant and that the defences pleaded do not hold any water, in the absence of supporting evidence.

47. The plaintiff has equally challenged the submissions by the defendant on quantum and reiterates her earlier submissions that she is entitled to the reliefs being sought.

48. I have considered the evidence tendered alongside thecontending submissions and authorities relied upon. The following are the issues arising for determination:

i. Whether the plaintiff has made a case for defamation against the defendant;

ii. Whether the defences of truth/justification, fair comment and privilege are available to the defendant; and

iii. Whether the plaintiff is entitled to the reliefs sought.

49. I will therefore address the above issues in like order.

50. On the first issue, I will borrow from the Black's Law Dictionary, 8th editionwhich defines defamation as:

“the act of harming the reputation of another by making a false statement to a third person.”

51. The ingredients of a defamatory claim were laid out by the Court of Appeal in the case of Raphael Lukale v Elizabeth Mayabi & another [2018] eKLRand are that:

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.

52. In respect to the second and third ingredients which I wish to begin with, upon my evaluation of the evidence tendered by the plaintiff, it is not in dispute that the publications in question and referenced above were made by the defendant and in relation to the plaintiff herein.

53. I am therefore satisfied that the plaintiff has established the two   (2) ingredients mentioned above.

54. This brings me to the first ingredient to do with whether the impugned publications are defamatory of the plaintiff.

55. At the heart of a defamatory statement lies its tendency to lower the reputation of the claimant in question. This was the position held by the Court of Appeal in the authority of S M W v Z W M [2015] eKLR and restated in the case of Joseph Njogu Kamunge v Charles Muriuki Gachari [2016] eKLR thus:

“A statement is defamatory of the person of whom it is published if it tends to lower him/her in the estimation of right thinking members of society generally or if it exposes him/her to public hatred, contempt or ridicule or if it causes him to be shunned or avoided.”

56. The legal position is that in order to determine whether a statement or publication is defamatory, one must seek to understand the meaning conveyed by the words in question to an ordinary/reasonable person.

57. Upon considering the pleadings by the plaintiff concerning the manner in which the words complained of in the impugned publications were defamatory of her and referenced earlier in this judgment, I also note that the plaintiff similarly pleaded and gave evidence that as a result of the impugned publications, her reputation was lowered. This evidence was supported by the witness statement of Dr. Adelaide Mbaika Mbithi which was also tendered as evidence by consent of the parties.

58. It was essentially the evidence of Dr. Adelaide that upon reading the impugned publications, she was deeply troubled by the manner in which they portrayed the plaintiff, who is well known to her. The witness stated in her statement that the contents of the impugned publications appeared convincing and indeed portrayed the plaintiff in the manner particularized in the plaint, to the extent that she felt the need to confront the plaintiff on the subject.

59. I also note from the material and evidence that whereas the defendant filed the witness statement of Alex Ndegwa to support the averments made in the statement of defence, the defendant on its part did not call any credible evidence to refute the claim by the plaintiff in that respect.

60. Upon considering the aforementioned particulars of defamation and innuendo pleaded in the plaint and in the absence of any credible evidence to the contrary, I find that the words published would in the ordinary sense be taken to have the meanings pleaded in the plaint.

61. Concerning the reputation of the plaintiff, credible evidence was tendered to support the claim that following the impugned publications, her reputation was negatively affected, as seen above.

62. Further to the foregoing, I am alive to the existing legal principle that in instances of libel, the law presumes damage so long as a party has shown that the defamatory material was written or printed or in some permanent form. This was the position taken by the court in the case of Peter Maina Ndirangu v Nation Media Group Limited [2014] eKLRand restated in the case of Alnashir Visram v Standard Limited [2016] eKLR.

63. In the premises, I am satisfied that the plaintiff has shown that the publications in question are defamatory of her, especially taking into account her personal and professional standing in society, which standing is in the public domain.

64. On the ingredient touching on malice, the court in the case ofPhinehas Nyagah v Gitobu Imanyara [2013] eKLRquoted in the plaintiff’s submissions, was of the view that malice is not restricted to spite or ill will but may extend to reckless actions drawn from the publication in question.

65. Upon considering the nature, frequency and circumstances surrounding the impugned publications coupled with the evidence tendered by the plaintiff that she was not consulted or given a fair opportunity to address the allegations made against her or been granted any apology so far, I am satisfied that the plaintiff has proved malice against the defendant, keeping in mind that malice need not necessarily refer to spite.

66. In respect to the ingredient to do with whether the publication was false, the court in the case of Joseph Njogu Kamunge(supra) reasoned that a defamatory statement is presumed to be false unless and until the same is shown to be true by a defendant.

67. In the present instance, I am satisfied that the plaintiff has brought credible evidence to demonstrate the false nature of the impugned publications and which evidence was not countered by the defendant at the trial by way of credible evidence. Furthermore, the act by the defendant of issuing an apology to the Honourable Mr. Justice Isaac Lenaola in respect to the first publication which also made mention of the plaintiff herein can be inferred to constitute an admission of the false/inaccurate nature of the publication and yet the plaintiff herself did not receive a similar apology even upon request, and there is nothing to indicate that the defendant retracted the impugned publications following the concerns raised by the plaintiff before filing of the suit.

68. To my mind therefore, the plaintiff has shown that the impugned publications were untrue.

69. In view of the foregoing circumstances, I am satisfied that the plaintiff has established a claim for defamation against the defendant on a balance of probabilities.

70. On the second issue concerning whether the defences pleaded are available to the defendant herein, it is noteworthy that the defendant collectively pleaded the defences of truth/justification, fair comment and privilege in relation to the impugned publications.

71. Concerning the defence of truth, upon my study of the record and examination of the material adduced, I did not come across anything to indicate that the defendant took active steps in verifying the authenticity of the information prior to publishing it. I also did not come across anything to show that the defendant consulted the plaintiff in order to obtain her side of the story and to ascertain whether the publications were an accurate representation of the facts.

72. Consequently, I am not convinced that the defendant has proved the defence of truth/justification.

73. In relation to the defences of fair comment on a matter of public interest and qualified privilege, which I will address contemporaneously.

74. The High Court in the case of Jacob Mwanto Wangora v Hezron Mwando Kirorio [2017] eKLR described what amounts to fair comment thus:

“In Peter Carter – Rucks Treatise on Libel and Slander stated as follows:

“…For the defence of fair comment to succeed it must be proved that the subject matter of the comment is a matter of legitimate public interest; that the facts upon which the comment is based are true and that the comment is fair in the sense that it is relevant to the facts and in the sense that it is expressed of the honest opinion of the writer.”

75. On the subject of qualified privilege, the court in the recent case of Musikari Kombo v Royal Media Services Limited [2018] eKLRdescribed the term using the following words:

“In Reynolds vs. Times Newspapers [1999] 4 ALL ER 609 the House of Lords went on further to set out a criteria for determining whether a publication is subject to qualified privileged as herein under:

“Depending on the circumstances, the matters to be taken into account include the following. The comments are illustrative only. (1) The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true. (2) The nature of the information, and the extent to which the subject matter is a matter of public concern. (3) The source of the information. Some informants have direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories. (4) The steps taken to verify the information. (5) The status of the information. The allegation may already have been the subject of an investigation which commands respect. (6) The urgency of the matter. News is often a perishable commodity. (7) Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed..(8) Whether the article contained the gist of the plaintiff’s side of the story. (9) The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact. (10) The circumstances of the publication including the timing.”

76. Upon my examination of the evidence, I am of the view that despite the assertion made by Alex Ndegwa in his witness statement that the publications were an accurate report of the petition(s) which were before the JSC at the time and concerning the plaintiff, the defendant did not bring any credible evidence to support this assertion, or to show that the facts upon which the publications were made are truthful and derived from the petitions or any other documentation for that matter, in order for it to amount to fair comment on a matter of public interest.

77. Furthermore, upon taking into account factors such as the seriousness of the allegations contained in the impugned publications; the absence of credible evidence to show the steps taken in verifying the accuracy of the information published; the tone of the impugned publications and the absence of a comment by the plaintiff on the same at the time of making the said publications, I have arrived at the conclusion that in as much as it may be argued that the public is entitled to receive information from the media on matters of public interest, the defendant herein cannot ride on the defence of qualified privilege to justify its actions for the above reasons.

78. Consequently, I am of the view that the defences pleaded are not available to the defendant in this instance.

79. This brings me to the third and final issue touching on the reliefs being sought by the plaintiff, having already found that the plaintiff has proved her case for defamation against the defendant.

80. On general damages, I considered the personal and profession standing of the plaintiff, both as a Judge of the Supreme Court and as the Deputy Chief Justice with a long-standing career in law.

81. I also considered the sums suggested by the respective parties together with the array of authorities cited particularly by the parties, some of which were decided years ago.

82. I find relevance in the case of Samuel Ndung’u Mukunya v Nation Media Group Limited & another [2015] eKLR where the court awarded a sum of Kshs.15,000,000/= under this head to the plaintiff being a lawyer considered for the position of Judge of the High Court of Kenya; the case of W M M v Standard Limited [2017] eKLR, in which the court awarded the plaintiff who was the Chief Justice general damages in the sum of Kshs. 12,000,000/= and the more recent case of Christopher Ndarathi Murungaru v John Githongo [2019] decided by this court and where it awarded the plaintiff; a former Minister; general damages in the sum of Kshs. 20,000,000/=.

83. Taking the above factors into account collectively, I find an award in the sum of Kshs.15,000,000/= to be suitable in the circumstances of the case at hand.

84. On aggravated damages, I considered the multiplicity of the publications and the lack of an apology by the defendant. Having done so, I am satisfied that the plaintiff is entitled to an award under this head. I however find the award of Kshs.20,000,000/= sought by the plaintiff to fall on the higher side in comparison to previous awards made.

85. Suffice it to say that I considered the case of Christopher Ndarathi Murungaru (supra) where this court awarded the sum of Kshs.5,000,000/= I find an award of ksh.3,000,000/= to be reasonable in the circumstances.

86. On exemplary damages, it is not in dispute that the impugned publications were not retracted by the defendant even upon the request of the plaintiff and hence, the reputation of the plaintiff has continued to be exposed to ridicule.

87. Upon considering the amount suggested by the plaintiff and which I find to again fall on the higher side, I will award a more reasonable sum of Kshs.2,000,000/= taking into account the awards ranging between Kshs.1,500,000/= and Kshs.3,000,000/= that have been made in the past under this head.

88. Concerning the prayer for a permanent injunction, upon considering the nature of the claim and the likelihood of a greater degree of injury to the reputation of the plaintiff in the future, I am satisfied it is necessary to grant the same.

89. I am also satisfied that in the absence of any previous apology by the defendant, the plaintiff herein is entitled to an apology together with a retraction of the impugned publications concerning her.

90. In the end and having considered the pleadings plus the evidence before this court, the submissions from the parties and the applicable law, I hereby enter judgment in favour of the plaintiff and against the defendant in the manner hereunder:

i. General damages for libel               Kshs. 15,000,000/=

ii. Aggravated damages for libel          Kshs.  3,000,000/=

iii. Exemplary damages for libel           Kshs.  2,000,000/=

Grand total          Kshs.20,000,000/=

iv. The grand award of ksh.20,000,000/= to attract interest at court rates from the date of judgment until the date of full settlement.

v. An order be and is hereby issued that the defendant do retract and withdraw the offending words and render a suitable apology to the plaintiff to be published by the defendant in the same prominence as the offending articles.

vi. A permanent injunction be and is hereby issued restraining the defendant whether by itself, its servants or agents or otherwise, from further publishing or causing to be published the said defamatory material of and concerning the plaintiff.

vii. The plaintiff shall have costs of the suit.

Dated, Signed and Delivered online via Microsoft Teams at Nairobi this 17th day of March, 2022.

………….…………….

J. K.  SERGON

JUDGE

In the presence of:

……………………………. for the Plaintiff

……………………………. for the Defendant