Rumba Kinuthia v Judith A. Achar & Rift Valley Railways [2016] KEHC 1274 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL CASE  NO.  143 OF 2008

RUMBA KINUTHIA T/A RUMBA KINUTHIA

& COMPANY ADVOCATES…………………………………........PLAINTIFF

VERSUS

JUDITH A. ACHAR………………………………………..….1ST DEFENDANT

RIFT VALLEY RAILWAYS……………………......…………..2ND DEFENDANT

JUDGMENT

Main Issue: whether seeking of second legal opinion by client amounts to defamation of the advocate initially instructed to sue

PLEADINGS

1. The plaintiff   in this case is Rumba Kinuthia, an advocate of the High Court of Kenya.  He instituted this suit against the two defendants Judith Achar and Kenya Railways Corporation (KRC) seeking for general damages, exemplary and punitive damages for defamation, costs and interest.  The claim by the plaintiff   against the defendants is contained in his plaint dated   14th April 2008.

2. The plaintiff alleges that in or about November 2006  he had been  instructed  by  the employees  of the Rift Valley  Railways  (RVR) to represent  them  in a legal suit  as against Kenya Railways Corporation for terminal benefits, amongst  other legal  remedies  and that the 1st  defendant in her individual  capacity  participated in instructing  the plaintiff to act for the  parties in  HCC  35/2007.

3. The plaintiff  claimed that on or  about the  17th day of April  2007  the 1st defendant  caused to be  published  a defamatory letter/memo  addressed  to all Rift valley  Railways   Employees  and parties  to HCC 35/2007  Munai, Isaac Opondo & Others V Kenya  Railways Corporation & Another.  It was further alleged that the subject material letter was uttered using company logo of the 2nd defendant.  Further  that the 1st defendant  wrote the said letter  in her capacity  as an agent  of the  2nd defendant   hence the  2nd defendant  is vicariously  liable for   the   actions of its agent  and   or servant, the  1st defendant.

4. The  2nd defendant is accused of  legalizing  the use of its   materials  which led to the publication of the letter  subject matter of this suit hence it was alleged to have been negligent  in allowing the publication  of the aforesaid  letter on its letter head.

5. The plaintiff claimed  that as   a result  of the negligent  acts of  the  2nd defendant, he suffered  loss and  damage   and  he claimed  for damages.  He also claimed that the said letter   was actuated by malice, spite and ill will against the plaintiff.

6. The  following  extract   of the letter of  17th April   2007 is what  the plaintiff  reproduced  claiming to be defamatory  of him:

“However a technical problem was detected in the suit lodged by Ms Rumba Kinuthia & Company Advocates.  In this suit  Kenya Railways   Corporation   was not given  30 days  notice  of intention   to sue   as is required by Section 87 of Kenya Railways  Corporation Act Cap 397. ”

(b) “ Further  consultations  with seven  different  independent  lawyers  was sought  to ensure that  we Rift Valley  Railways  staff get  our grant.  Their opinions   were channeled to Ms Rumba Kinuthia & Company Advocates in February   2007.  The most single recommendation was that the case be  withdrawn  and  filed  afresh in compliance  with Section  87  of the Kenya Railways  Corporation  Act Cap  397. ”

( c)“ However, when Rumba  met  with staff  and the issue of  compliance  with the Act was raised he replied  that he  had give 38 days’  notice to  Kenya Railways  Corporation.  Scrutiny of the notice given to Kenya Railways Corporation on 27th November 2006 reveals it was a 14 days demand letter for payment of dues and not the notice of intention to sue Kenya Railways Corporation.

(d) “ In order  to improve the  chances of  success, it  was  discussed  and agreed  that the  best  alternative  remedy   available   within six  months   required  was through  a Judicial  Review action in High Court.  This has since been implemented through   M/s Rachier &Amollo Advocates to run concurrently with the civil case No.  35 of 2007. ”

7. According to the plaintiff, the words used as above in  the impugned  letter  were libelous  and  were  taken by Rift Valley Railways  employees or any other person who  read  the memo  on the notice boards, in their ordinary meaning and interpretation to mean that:

1. The plaintiff was not qualified as an advocate to represent them in HCC No. 35/2007.

2. The plaintiff and his firm have no valid ground or at all to practice   law.

3. The plaintiff does not understand the law more specifically the Kenya Railways Corporation Act Cap 397 Laws of Kenya.

4. The plaintiff had been confirmed by seven (7) different independent lawyers to be incompetent and unqualified.

5. The plaintiff put his interests first before the interests   of the plaintiffs in   HCC No. 35/2007.

6. The plaintiff was out to defraud the plaintiffs in HCC 35/2007 of their money and in its   place file a frivolous suit.

7. The plaintiff has not given a proper statutory notice to Kenya Railways.

8. The plaintiff should be  replaced  as counsel  in charge  in HCCC No.35/2007 and/or  the claim against Kenya Railways   Corporation  by its former  employees  in his place M/s Rachier &Amollo be given the mantle  to represent them.

9. The plaintiff  was an  impostor   masquerading  as a lawyer  but was actually not qualified  and/or competent  to practice  as one

7. The plaintiff  also averred that as  a result of the aforesaid  publication which was libelous and  defamatory, his relationship  with the plaintiffs  in HCC 35/2007 was  strained  to a point near a total collapse  and that he suffered  loss and  damage particularized  in paragraphs  13  of his plaint as  follows:

i. Portrayed   the plaintiff negatively in the eyes of the more than 3000 ex-Kenya Railways employees he was representing in HCC No. 35/2007.

ii. Depicted the plaintiff as an incompetent lawyer.

iii. Depicted the plaintiff’s law firm as one that should not be entrusted with any legal work at all.

iv. Depicted the plaintiff as money oriented person rather than an advocate.

v. Depicted the plaintiff as a lawyer who does not understand the law more especially the provisions of Kenya   Railways Act Cap 397 Laws of Kenya.

vi. Depicted the plaintiff as a careless and /or reckless advocate who did not care what would become   of his clients in HCCC No. 35/2007.

vii. Depicted  the plaintiff firm   as inferior  to other  firms of advocates

viii. Depicted   the plaintiff   as an inferior   advocate compared   to other advocates.

xi. Exposed the plaintiff to contempt   ridicule and   public odium from his clients   in HCCC No. 35/2007.

x. Portrayed the plaintiff as a mediocre, reckless and inept advocate with nothing to offer   the 3000 plaintiffs in HCCC No. 35/2007 and other employees of Rift Valley Railways in particular, and any other litigants in general.

xi. Made the plaintiffs in HCCC No. 35/2007 cast serious   doubts on the ability of the plaintiff as their lawyer.

8. The  1st defendant  filed defence   dated  3rd  March  2010  after successfully setting  aside  the exparte  interlocutory judgment  that   was  entered against  her in default  of  appearance  on 21st August  2008.  In her said defence, she contended that she  only signed the memo  complained of  after it  was drafted  by representatives of the  management of  Rift Valley Railways  who are  parties in HCC  35/2007.

9. The 1st defendant denied that the memo   was defamatory of the plaintiff or that he suffered any loss or damage as alleged.  She further contended that the impugned memo was based on a legal opinion given to the management   of the 2nd defendant.

10. Further, that it was a fair comment in a matter of interest to employees of the 2nd defendant based on independent legal advice.  She denied that the memo depicted the plaintiff in the negative or that it was malicious, spiteful or ill willed as alleged.  She urged the court to dismiss the suit against her with costs.

11. The 2nd defendant  in its  28  long paragraph   defence dated  15th May 2008  denied all the allegations  leveled against  it by the plaintiff, save that  the 1st defendant  had   used its  stationery letter- head  in communicating the memo  to  all Rift Valley  Railways staff on 17th April 2007, since she was in its employment as the Principal  Public  Relations  Officer.  The  2nd  defendant   nonetheless denied that in communicating  that memo  to all Rift Valley Railways  staff, the 1st defendant was  acting as  its agent  or  in the course  of  her employment  as  Principal  Public  Relations  Officer but  in her personal  capacity since she  was not authorized  to use  Rift Valley Railways  stationery  for that purpose  of communication.

12. The 2nd defendant also denied publishing the impugned memo.  It denied being vicariously liable for acts of the 1st defendant; being negligent; malicious or at all.  It also denied the meanings or  interpretation  given to the  impugned  memo  which it  maintained  was not  official communication of the  2nd defendant.

13. The plaintiff filed reply to the 2nd defendant’s defence on 11th August 2008 reiterating the contents of the plaint.  He also filed reply to the1stdefendant’s defence on 18th March 2010 reiterating   the contents of his plaint.

14. On 14th May   2010 the  2nd defendant   sought for  particulars from the  1st defendant’s  defence  dated  3rd  March  2010 at paragraph 5, for the 1st defendant to identity the representatives  of the management  of Rift Valley  Railways  who are parties  to HCC 35/2007 who were  alleged to  have drafted   the impugned memo.

15. On  3rd  June  2010, all the parties filed an  agreed statement of issues  jointly signed  by their  respective  advocates   on record, which issues  shall be considered  later in this judgment.

16. The plaintiff did change  advocates  on 24th June  2010  to represent  himself, taking over  from Gitau  J.H. Mwara  advocates, who filed this suit  on his behalf.

17. The parties  complied with all  the  requirements  for discovery under Order 11 of the Civil Procedure  Rules  by filing and exchanging  witness statements  and lists and bundles of  documents to be relied on at the  hearing.

EVIDENCE

18. The plaintiff Rumba Kinuthia testified on 9th June  2015  as PW1  that he  was  an advocate  of the High Court  of Kenya and  operates  a legal practice  as Rumba Kinuthia  & Co. Advocates  in Nairobi.  He  relied on  his written witness statement  filed on  13th June  2013  as his evidence  in chief  and  the court adopted it.  The plaintiff testified  that in November 2006 he   was instructed  by  3407  ex-employees  of the Kenya Railways Corporation  who had been  transferred to the 2nd defendant  herein Rift Valley  Railways  (RVR) Ltd  through a concessionary agreement, to  seek for their terminal benefits.  That his law firm filed suit   on behalf of the said claimants.  That he was the lead counsel in the said matter.

19. Soon thereafter, that the 1st defendant  published  a memo  addressed  to all Rift Valley Railways  staff in which, among  other things, she alleged  that the suit  that had been  filed by  the  plaintiff  on their behalf had a technical  problem and that she  had consulted  7 independent   lawyers who had  confirmed the technical problem.  That  the  1st defendant  did not  name  the  7  different  lawyers  that had  been consulted  and that neither  did  she forward the opinion of those 7 advocates  to the plaintiff.  That the memo also stated that the suit could be withdrawn and filed afresh.

20. The plaintiff further testified that upon reading that memo, he summoned  a meeting  with officials representing the  ex-employees  of KRC and  explained to them that Section 7 of the Kenya Railways  Corporations Act  only provide that no suit  could be  instituted  until expiry  of  30 days, which  notice of 30 days  had been  issued by the plaintiff, and that his position had  been vindicated  by Honourable Waweru  J’s ruling  delivered on  5th July  2007  and a subsequent  ruling  by Honourable  Sitati J  delivered on  13th May  2011.

21. According  to the plaintiff, the  memo was on the 2nd defendant’s  letter head  and  that it was written by the 1st defendant in her capacity  as the Principal  Public  Relations Officer of the  2nd defendant.

22. Further, the plaintiff asserted that the said memo was widely distributed and pinned on notice boards of Rift Valley Railways Headquarters and other stations.  He blamed the 2nd defendant for failing to prevent   the publication of the memo which was highly  libelous  of him  and  that  he promptly  notified  the  1st defendant  in writing and blamed  the  2nd defendant  for allowing its  facilities  to be used  to perpetuate  the libel through the  use of its letter head  and its notice boards where the memo  lasted for about  10 days.

23. The plaintiff testified that after the memo was published, his relationship with his   clients   was never the same again as it deteriorated because of the allegations in the memo that the plaintiff had acted incompetently in the filing of the Sui on their behalf.

24. The plaintiff  testified that eventually  his  said clients  took the  file  away  from his office thereby  denying  his  firm  prospects  of costs  which he   would have  earned  from the  success  of the suit.  He prayed for damages against both defendants.  He produced his list and supplementary   lists of documents as his exhibits 1 and 2  respectively.  The exhibits   are:

1. Letter dated  17th April  in HCC 35/2007 Ref RVR/PR/1/3

2. Amended  plaint in  HCC  35/2007

3. Plaint  in HCC 143/2008

4. Plaintiff witness statement.

5. Ruling by Honourable Sitati J on 13th May 2001   dismissing  application to strike out   HCC  35/2007

6. Ruling by Honourable Waweru J in HCC 35/2007   dated   5th July 2007.

25. In cross examination by the 1st defendant’s counsel Mr Osiemo, the plaintiff stated that the suit revolves around   interpretation of Section 87 of the Kenya Railway Corporation Act. The plaintiff conceded that lawyers   often disagree on interpretation of the law and that   is why the appeal process is available   on points of law.  The plaintiff  also conceded that  the fact  that  he  disagrees  with   another  counsel’s  interpretation of the   law does  not  necessarily  mean  that they  disrespect  him.  He also conceded that at one point, Kenya Railways applied to have HCC 35/2007 struck out.

26. PW1 denied  earlier  seeing  the legal opinion  given by  Charles  O. Dulo  advocate  but that he had now  seen it  when pointed out  to him by   his assistant  in court to which he   responded that Mr Dulo’s   opinion  was to the effect that  Section  87  of  Kenya Railways  Corporation Act demanded  that the Managing  Director of Kenya Railways Corporation be given 30 days  notice  before  filing suit   against  the Corporation  and if no notice is given the suit would  be fatally  defective.

27. The plaintiff stated that if the advocates wrongly advised their clients, that had no bearing on his suit.  He stated that the  memo   was written  on 17th April  2007 after the legal opinion   which  was  dated  2nd February  2007.  He also stated that  what  was  in the legal opinion  was reflected  in the memo but  that he  would not   know if the  memo  was  an offshoot  of the legal  opinion since the  memo does  not mention when the legal  opinion  was given.  He also stated that there were similarities in the two documents but that the legal opinion could have been contrived.  He  stated that  the tone  of the memo  was tough talking  and depicted an opinion  formed to  remove the  case  from the plaintiff’s advocate’s  firm  and  pass the brief  to Rachier&  Amollo Advocates.

28. Mr Kinuthia  stated that the  memo  cast  aspersions  on his competence  since it   stated that  Rachier&  Amollo Advocates   had already   filed the Judicial  Review  proceedings.  Further, that the memo emanated   from the 1st defendant  who  was  talking  of the best   alternative remedy available being Judicial Review  as already implemented by Rachier&  Amollo Advocates.  He also stated that    the   legal opinion    by Dulo recommended   withdrawal of the suit from court and filing of Judicial Review.  He stated that the memo   was written  by the  1st defendant  in her official   capacity  although  he did not  know whether she had  any legal  training but that following  advice of a lawyer  could be  actuated  by malice  or it  could be  in good faith.

29. The plaintiff also stated that the memo was circulated in the Kenya Railways Corporation premises all over the county including Nairobi and Nakuru for consumption of its employees and any other interested parties.  He stated that the memo   did not state the deliberations he had with the steering committee to which   the 1st   defendant   was not one.  He   stated that he had explained to the steering   committee the importance of Section 87 of the Kenya Railways   Act.

30. In cross  examination by Mr Kiche counsel for  the 2nd defendant, the    plaintiff stated  that  in HCC  35/2007  he  was  instructed  by former employees  of Kenya Railways Corporation  and not the Rift Valley Railways Ltd.  That when some employees were paid their dues, the suit   had to be amended to remove them from the proceedings.  He maintained that   the memo originated from Rift Valley Railways and signed by the 1st defendant as the Principal Public Relations Officer.  He however stated that he could not   tell whether the memo   was an internal memo but that it refers to all Rift Valley Railways staff.  He could also   not tell the job description of the 1st defendant.  He denied being instructed or being paid legal fees by the 2nd defendant.  He also   stated that the legal opinion   was addressed to the committee of eminent   persons not Rift Valley Railways or Judith Achar.

31. Mr Kinuthia  also stated that he send emissaries  from his office   who confirmed  that the memo   was all  over the Rift Valley Railways  premises  for  10 days  and  that the    2nd defendant   had not  denied the  publication but filed  a general  defence.

32. The plaintiff  also clarified  that  the 2nd defendant  had distanced itself  from the memo  and  sought   indemnity  from the 1st defendant.  The plaintiff   closed his case   without calling any witness.

DEFENCE EVIDENCE

33. The  1st defendant testified as  DW1  on 22nd September 2015   and stated that she  worked with Rift Valley Railways  as Principal  Public Relations Officer in 2006  and  in 2008  she  was  promoted  to  manager, Public  Relations.  Previously, she  had worked  with Kenya Railways  Corporation  from  1997  as the Managing  Director’s  Secretary  and also served  as the administrative  Officer, Public  Relations officer  and  Public  Manager  until Rift Valley  Railways  took over  Kenya Railways Corporation through a concession  then her   previous services  were  transferred  to Rift Valley Railways  as  Principal Public Relations officer.  She relied on her witness statement   recorded on 11th March 2013 as her evidence   in chief.

34. DW1  testified that  as former Kenya Railways Corporation  employees, they filed suit  resisting  their transfer  to Rift Valley Railways  until their  dues were  settled by the KRC  and so they  engaged  the plaintiff  who  filed the suit on their behalf.  That they had representatives and that at that time, they were still in occupation of the Kenya Railways Corporation houses.  The latter wanted to evict them if the employees were not willing to pay rent at market prices.  They were threatened by Kenya Railways Corporation   with eviction.  Auctioneers  went to distress  for rent from the employees/tenants  and that   she  was always  called upon  as the Public Relations Officer to manage  the  negative  publicity  of the company since there were  frequent  employee strikes.

35. Further, that representatives of the ex-Kenya Railways Corporation   staff sought a second  legal opinion  which came from  Charles  Dulo  in writing  to the effect that the case   as filed  in court  had 50/50   chances  of success  and that it   should have  been  instituted  by way of Judicial  Review.  That Mr Dulo also advised them to give that legal opinion   to their lawyer, the plaintiff herein.

36. That the 1st defendant delivered the legal  opinion together  with a cheque  for the rents  issued by Rift Valley Railways   payable  to Kenya  Railways Corporation to the plaintiff and  asked him to go to Rift Valley Railways to meet the staff over  the issues, which he  obliged after 2 days.

37. Concerning  the impugned  memo, DW1 stated that it  was  written by  a team of  people in the management who  were  15 people  and that she  was   one of them  hence she  signed  the memo   as the Public Relations Officer  since the issues fell  in her docket.

38. That after this suit was filed against her; she contacted the Human Resource Manager and spoke to the Managing Director   informing them that she never intended to defame   the plaintiff.  They advised  her to  fax  the pleadings to the  2nd defendant’s  advocates  herein  but after  one year, she  was  advised to take  her own  lawyer  to defend her in this suit but  that the 2nd defendants  paid the legal  fees  to her new advocates  Odero  Osiemo  & Company Advocates.  She   also stated that she wrote a brief to the management of Rift Valley Railways and wrote memos and reports on behalf of Rift Valley Railways.  She denied conveying any personal opinions in her   correspondence/ memo.  She  stated that  she  was not a  lawyer   and would not know  what  Judicial Review   entailed but  only  conveyed  what Charles   Dulo  advocate  gave as  legal opinion   after he had  met the staff  of Rift Valley Railways and briefed  them .

39. DW1 also stated that the impugned memo was given to the Human Resources  Manager  Mr David  Rimberia  to circulate  to all staff  in all  regions  and that it  would be  put on the  Notice Boards, intended  for  employees   who had an  interest  in the material  suit.

40. The  1st   defendant  also stated that  she  stopped  working  for Rift Valley Railways in 2012  when her  services  were terminated  for  reasons that  she  authored the  impugned  memo  subject of this suit,  which  was  written in 2007.  That  the Company Secretary  of  Rift Valley Railways had  initially  asked her  to write  a letter  exonerating  Rift Valley Railways from this case  and when she  requested that the request  be put in writing, the same  was not forthcoming.

41. DW1testified that the memo was written on the Rift Valley Railways letter head   because  they  were dealing the matter as Rift Valley Railways  staff and that the Rift Valley Railways  management  especially the Managing Director and Executive  Director were aware of the issue  as they  are the ones   who were facilitating  payment  of the staff rent to  Kenya Railways Corporation. She  stated  that before  the staff  case, she only  used to hear of   Rumba Kinuthia  as an advocate  but that she had  never met  him and that  she regarded  him highly  hence  she could  not have  said anything   untoward  about  him since  she had a  cordial  relationship  with him.  She also stated that she   had no reason to cast aspersions against the plaintiff as an advocate and that she   still held him in regard.  She maintained that the memo   was derived from the advisory legal opinion of Charles Dulo advocate.  She produced her  list of  documents filed on 12th March  2013  as Dex1-10 which are  listed  as follows:

1. D Exh 1- Legal opinion by Charles O. Dulo.

2. DExh 2 – letter to Charles Church by ex- Kenya Railways Corporation employees dated 11th April 2007.

3. DExh 3-  Contribution/pledges   towards constitutional  case  in court

4. DExh4- Memo dated 17th April 2007.

5. DExh 5 Internal   memo Ref RVR/PR/3 to Kevin Whiteway dated 28th October 2008.

6. DExh 6- Internal memo Ref RVR/PR/3 to Kevin Whiteway dated  28th October  2008

7. DExh7-Receipt  No. 482  from Odero Osiemo & Company Advocates  of shs   15,000/-

8. DExh 8- payment voucher for refund of shs 15,000 being legal   fees paid to Odero Osiemo & Company Advocates.

9.  DExh 9- Email send on 2nd March 2009 to   Brown Ondego from Judith Achar.

10. DExh10- Emails   sent on 15th September 2010 at 5. 06 pm and 10: 33 am respectively.

42. In cross  examination by the plaintiff, DW1 stated  that he   was unemployed  at the moment  since losing  her job  in 2012  and that  she has no  other  income  generating  activity.   She maintained that the memo originated from the legal opinion by Charles Dulo Advocate who gave a brief saying he had consulted 7 other lawyers over the matter.

43. She denied quoting Mr Dulo in her paragraph 4 of the memo and further denied that the memo quoted him.  She stated that Charles Dulo met them and took them through the legal opinion and told them that 7 lawyers had contributed to the legal opinion that he gave them but she denied knowing the identity of those seven lawyers.  She conceded that when the plaintiff met them, he explained that   he had given 38 days Notice to Kenya Railways Corporation before filing of the suit in court.  She maintained that she gave to the plaintiff a copy of the legal opinion from Charles   Dulo when she handed him the cheque although she had no acknowledgement from him.

44. The first defendant also conceded  that the contents  of the  memo  show that  action had  been  taken by staff  who had  instructed  Rachier  & Amollo advocates  to the file  Judicial Revenue.  She stated that  the third last  paragraph  of the memo was clear  that before writing it, “it had been  discussed  and agreed…..” and that   she had  produced  a list  of people (staff) who had agreed to that position of taking Judicial Review  action in their  case. When shown DExh 9,  DW1 stated that David  was  a Human Resource Manager  at RVR and that she referred to an email send by David Rimberia  to Brown Ondego, who  was the Managing  Director of  Rift Valley Railways, correcting  the impression created by David  who  had given  incorrect  information by misquoting  the memo  that the 1st  defendant  had written concerning the case.

45. DW1 conceded  that the memo had been distributed to all stations where Rift Valley Railways had employees  and copied   to Human Resource  Welfare  officers  who did  not deny it until  5 years  later  is when  she  was  being victimized  for having  written  the memo.  She stated that she wrote the memo in her capacity as the Principal Public Relations Officer of Rift Valley Railways.  That she only signed the memo on behalf   of the 15 committee members and that at that time there was a crisis of being threatened with eviction   from Rift Valley Railways houses.

46. She stated that the memo  was pinned  on notice  boards  stationed  in corners   in the offices, although she conceded that there were  no mechanisms  to stop  any other  person from reading  it.

47. On being  cross  examined  by Mr  Kiche  counsel for the 2nd defendant, DW1  stated  that she   was a party  to HCC 35/2007  seeking for  benefits from Rift Valley Railways.  That at the time of writing the memo, she was the Principal Public Relation Officer and dealing with both internal and external memo.  She also stated that the committee of expert persons was Rift Valley Railways staff in the management level that was over 2100 people.  She stated that  in her  communication  regarding  staff, she   was  not required to write through the Human Resource, although   Human  Resource department  dealt  with staff  issues but  that she  was not  answerable  to the Human Resource  Manager.

48. She denied that in all the memos she wrote, she was required to refer to previous minutes.  She stated that Charles  Dulo is the one  who  mentioned  committee  of experts  but that  in the meeting  they had agreed that she  signs  the memo after they summarized  the legal opinion  hence she only  wrote  it on  behalf  of the  team  although  she did not sign it on behalf of the team as it  was  not  a requirement  to do so  all the time.

49. She stated that the memo   was written because of   Rumba Kinuthia’s involvement in the case.  She stated that she met the Managing Director   of RVR and   Mr Charles Church on the payment of legal fees.  She stated that RVR refunded her shs   15,000/- which she had paid to her advocates.  She also stated that she signed for the money in the accounts office and that the acknowledgement was retained   by Rift Valley Railways.  She denied a suggestion that Rift Valley Railways was only involved in this case on the use of its letter head to write the memo.

50. She stated that HCC 35/2007 was instituted   by staff of Rift Valley Railways.  She maintained that the memo was drafted by representatives of the management of Rift Valley Railways who were parties to HCC 35/2007, being an internal communication to them.  Further, she stated that David Rimberia the Human Resource Manager was involved in the meeting   although   only 5 members brushed the memo up.

51. She also stated that matters of staff had a direct impact   on the work of Rift Valley Railways as its staff was being threatened with eviction from their residences.  She maintained that there was no intention to publish the memo to the media.

52. In re-examination by Mr Osiemo, DW1 stated that when the memo was written, it was given to David Rimberia who was the Human Resource Manager to disseminate it to staff affected as per the procedure at the time.  She denied ever being   admonished by Rift Valley Railways for using their letter head    to communicate and maintained that that was not the only memo done regarding   HCC 35/2007 as shown by DExh 6 an internal memo dated 28th October, 2008 written by her to Kevin Whiteway.

53. DW1 denied receiving any memo from RVR declining   the payment   of her legal fees.  She also  stated that  David Rimberia  is the one  of those who pledged  to pay   shs   5000/-  towards legal   fees and  that he  signed the undertaking under staff  No. 38964 from  Human Resource Department  after participating  in the proceedings   (meeting) throughout.  She emphasized that the memo clearly communicated   what had been “discussed and agreed…..”  To show that its content   was as a result of discussions and consultations by management staff   on the legal   opinion of Charles Dulo.  She denied putting her own personal opinion in the memo.

54. On being  questioned by the court,  DW1 stated that she  wrote  the memo  to inform  staff of what had-transpired  and to assure  them of an alternative  remedy  in the event   that the case filed  by Rumba Kinuthia collapsed; and that they handed copy of the legal  opinion to Rumba  Kinuthia because  he is the  one who  was handling  their HCC 35/2007.

55. She also stated that they wrote the memo as a team that was affected by what   was happening.

56. The   1st defendant called DW2 Richard Otieno who testified that he   was an accountant working in Homabay.  That he previously worked for Kenya Railways Corporation and from March 2011 he joined RVR from KRC where he had worked from 2006   during the concession.

57. DW2 recalled that employees of  the former  Kenya Railways  Corporation  filed suit   against  Kenya Railway regarding  payment  of  their terminal benefits  and  they engaged   the plaintiff advocate  to  represent  them.  That they  were  also being  asked to vacate   Kenya Railways  Corporation  staff  houses  which they  resisted  and the issue  was settled.  That when they realized that the suit was delaying they sought an opinion from Mr Dulo advocate and he gave the case a different approach.

58. That Mr Dulo called them (committee) and explained the issues and stated that Judicial Review was the best option.  That upon the committee receiving the legal opinion, they resolved  to  pursue the  two options separately  and also decided  that the plaintiff  pursues  the case already   filed in court  while they  instruct  another  lawyer  to pursue   Judicial  Review  option  and they  communicated that  decision to other employees.

59. That the committee tasked the  1st defendant Judith Achar   who was the Public  Relations officer  to write an internal  memo, capturing  the committee’s   deliberations on the matter  and not opinions  of the office.

60. That the Public Relations Officer communicated with staff decisions made/reached by the committee, summarizing deliberations of the committee.  That as a committee, they had no intentions of casting aspersions or disrespecting the plaintiff advocate but were only looking for a second opinion on the matter.  He stated that they never thought the plaintiff was incompetent and that they had nothing against him.

61. On being cross examined by Mr Onindo, DW2 stated that the legal opinion   was by Mr Charles Dulo and that he did not know whether it   was   send to the plaintiff.  He confirmed  that another  case  was  filed by  a  different   law firm  by but he could not  recall the  case number  and whether it   was  finalized.  He stated that he was laid off and paid by Kenya Railways Corporation.  He stated that he did not know what happened to HCC 35/2007 and how it was concluded.  He admitted being in the steering committee and seeing   the internal memo written   by the 1st defendant   and that he read it before it   was distributed.  That  before the impugned memo was  send out  she  called him to go and read it  after which  it  was  sent to  Notice  Boards of Rift Valley Railways and Kenya Railways Corporation.

62. DW2 emphasized that the communication was on behalf of the steering committee not DW1’s own personal communication and that the communication was not her personal communication but as mandated by the committee.

63. In  cross examination by Mr Kiche  the witness  stated that  it is  the committee of former Kenya Railways Corporation employees that mandated d Judith  Achar  to write  the memo  and that he  was part of that  committee.  He also stated that   Rift Valley Railways aware of that committee having taken over employee from Kenya Railways Corporation.  He stated that Mr Rimberia was the Human Resource Manager   although he was not incorporated in the committee.  He stated that Senior Managers of Rift Valley Railways were involved in the writing   of the memo.

64. In re-examination by Mr Osiemo, DW2 stated that Rift Valley Railways Senior Managers were given copies of the impugned memo.  Further, that the committee sat at Rift Valley Railways offices without objection from Rift Valley Railways Managers.  He also stated that Rift Valley Railways facilitated the committee with paper and time to meet and discuss their issues.

65. Tom Mboya   Ojijo   testified as DW3 on behalf of the   1st defendant   and stated   that he works    for Awanad CFS.  That he previously worked for Kenya Railways   Corporation   from 1995 to August to 2006   when he joined Rift Valley Railways under a concession.  He gave evidence  similar  to DW2  evidence that   the former  Kenya Railways Corporation staff filed  suit against  Kenya  Railways   Corporation seeking   to be paid  their  dues  before they could  be  absorbed  by Rift Valley Railways so they hired  Rumba  Kinuthia  advocate  who  filed suit on their behalf.  That the suit was   taking long so they sought opinion of another lawyer and so they got one from Charles Dulo.

66. That DW3 was one of the representatives   of the employees and that at that time he was working in Mombasa.  That  the committee met and  agreed  to communicate  the legal  opinion to all  the affected  staff after  summarizing  it and tasking  their Public  Relations Officer  Judith Achar  to write   it and have it signed   and  have it dispatched to members   in the regions.  That the contents of the memo was input of the committee not her personal opinion or individual committee members.

67. DW3  confirmed  that David Rimberia  signed  on the first page  of the memo  as the Human Resource  Manager   and that he   knew and  was sure of Mr  Rimberia’s  signature.  That all top management including   the financial controller Mr Charles Church was kept in the picture.

68. Further, that staff made contributions which were advanced by Rift Valley Railways.  DW3 maintained that if the committee operations were not authorized by RVR the committee members could have been disciplined for acting contrary to the company’s policies.  He testified that the committee was provided with office space to meet and were granted permission to travel from the regions to congregate in Nairobi.

69. DW3 denied that seeking a second opinion was disrespect for Mr Rumba Kinuthia. He maintained that their case had taken too long and that staff had compared their case with the case of their counterparts in Uganda who had been paid under similar circumstances.  That they tasked Judith Achar and other committee members to brief Rumba Kinuthia on the matter   of the second legal opinion.

70. DW3 confirmed that he was part of the committee that authored the impugned memo which was never intended to defame the plaintiff.

71. On being  cross examined by Mr Onindo,  DW3  stated that  he  was the  Regional Operations  Manager, Rift Valley Railways  Mombasa, and stated that  Rift Valley Railways  had  3 regions- Mombasa, Makindu, Eastern Region  which covered  Makindu  to Naivasha; Western Region  covered  Naivasha  to Kisumu   & Nakuru  to Malaba  areas and that   in all the regions, virtually all employees  who joined  Rift Valley Railways  came  from Kenya Railways Corporation.

72. DW3 stated that the memo   subject   of this   case was to be circulated to all staff in the regions.  That the memo was circulated through the Human Resource Department to majority of employees.        That he also  got a copy from his regional  Human Resource Office  and he gave  a copy to the yard master  to share with their juniors  and that  he also  saw it  at the Head quarters when he  visited  Judith Achar’s office  where he  read  it from her office.

73. That as  a committee, DW3 could  not  recall if they  wrote  to Rumba  Kinuthia  complaining  of the delay in the conclusion  of their case  but that  members  complained  of the delay.  He maintained that the memo was collective views of the  committee from the legal  opinion  received  from Dulo  advocate and that all they wanted  was to let  Rumba Kinuthia  know what second  legal opinion they had  received.

74. DW3 also stated that he was aware that Judith Achar verbally briefed Mr Rumba Kinuthia.  He could however not remember if there was any other suit filed after the 2nd legal opinion.

75. In cross examination by Mr  Kiche, DW3 stated that  Mr Nyandiega   was a Human  Resource  officer  based at the Head quarters  and that  he attended  committee  meetings, representing  his Section   although DW3 did not have  minutes of  the meetings.

76. He  reiterated that the  memo  had Mr  Rimberia’s  signature  and that  he received  it  through  his regional  personnel  officer.  He stated that Mr Rimberia  was  the Human Resource Manager  at the Headquarters  and that  he could also  see his  name  on the list  of  contributors  although  his signature   was not very  clear.  He denied that the committee had any malice and maintained that the committee used Rift Valley Railways offices.  He denied that they had any malice or disrespect for Mr Rumba Kinuthia.

77. In reexamination by Mr Osiemo, DW3 stated that  they sued  Kenya  Railways Corporation  and not Rift Valley  Railways  for their  benefits  to be settled  before being  transferred  to Rift Valley  Railways and that RVR  facilitated  them to pursue  their suit.  Further, that they were nearly evicted from their residences so Rift Valley Railways was fully aware of the situation.

78. The 1st defendant also called DW4 Geoffrey Nyandiega a lecturer at KCA University and formerly Rift Valley Corporation.  He gave evidence similar to  DW2  and  DW3, stating that  he used to work in the RVR Mombasa office and was also a member of the  committee that  sought a second  legal  opinion from Mr Dulo advocate.  He  emphasized  that the  impugned memo  was channeled  through the Human  Resource  office who  would  minute  it  authorizing  it to be  circulated  hence Mr David  Rimberia  was  the Human Resource  Manager  who minuted on it  like he  did on many other  memos  by initializing  on the memos, not  signing  his full  signature as identified  on PEx 4.  DW4 also stated that without Mr Rimberia authorizing the circulation of the memo it could not be circulated.

79. In cross examination by Mr Onindo.  DW4  stated that he used to be the  Human Resource officer  in  charge of  welfare and that  they sought  for a second  legal opinion because of the delay  in concluding the case, not because of  the incompetence  by Mr Rumba  Kinuthia.  He stated that he saw the memo in Mombasa   and that indeed it   was circulated to majority of employees.  He also maintained that the legal opinion received   was shared with Mr Rumba Kinuthia.  DW4 denied being aware of any other legal opinion.

80. On being   cross examined by Mr Kiche, DW4 stated that he was part of the committee but not representing RVR.  He stated that   he read the memo after it was written but not on the same day.  Further, that he did not know whether Mr Rimberia   was at the head office on 17th April 2007.  He confirmed that the memo was put on the notice boards by the Human Resource and that he   was party to HCC 35/2007.  He stated that it was a normal procedure   for memos to be authorized by Human Resource before being circulated and   that Judith   was an expert   in communications so she   assisted them in communicating.

81. Further that the memo would look more official if circulated through Human Resource.  DW4 also stated that the original memo was also copied to Human Resource Manager.  He maintained that the memo was originated by the committee and that there was no other memo.

82. In  re-examination by Mr Osiemo, DW4  stated that  having worked  for  Rift Valley  Railways,  he knew  the systems  and that Judith Achar  could not   have  circulated the memo  without the authorization of the Human Resource Manager and Department.

83. At the close of the 1st defendant’s  case, the 2nd defendant  called   Mr David  Rimberia  who testified  on oath  as DW5  that he  was a  Human Resource  Practitioner  with  Kenya Airways  as Head of Employee Relations and that he had previously  worked with   an international company.  He also worked with Rift Valley Railways for 3 years from   2006- 2009   as a Human Resource Manager.  He admitted seeing  an  internal  memo  written by  Judith Achar dated  17th April  2007 and that he  saw it  on  18th April  2007.  That on 17th April 2007 he was in Mombasa on official duties.  He stated that he could not recall signing or writing on PEx 4 the impugned memo and that neither could he recall sanctioning it.  He also stated that he   could not    recall being called prior to the writing of that memo.  He stated that his role   included   handling Human Resource matters, distinct from Public Relations. He stated that the latter communicated with the media and external clients while   him he dealt with internal staff.  He stated that there   were instances  when  Public Relations Officer communicated  with  internal staff as long  as it  was  sanctioned  by the Human Resource  Manager   or the Managing Director  or the  Executive Director   of Rift Valley  Railways.

84. DW5 stated that he did not authorize the internal memo dated 17th April 2007.  He also stated that he could not tell if his seniors were consulted on the impugned memo but that when he went to the office, he was asked about it.  He however admitted forwarding PEx2 which was the normal procedure.

85. On being asked  whether he   endorsed  on the memo  in question, DW5 stated  that he could  not say that the   endorsement  on  the memo   was his signature  because it   was not  very  clear ( hesitantly and evasively).  DW5  also  admitted being  aware of the suit  filed by former  Kenya  Railways  Corporation  employees but  denied that  Rift Valley  Railways   was involved  in that  suit.  He denied that Rift Valley Railways paid any legal fees for the employees.  He could not recall any refund of legal fees paid by the 1st defendant towards filing of the employees’ suit.  He stated  that he understood  the  memo to mean that the  ex employees  of Kenya Railways Corporation   were pursuing  their own  dues  and  a lawyer’s   opinion  was sought  in the manner  in which the matter  in court   was being handled.

86. According to DW5, when the memo was brought to their (management) attention, they withdrew it from the notice boards.  That they called the plaintiff and   explained to him that they had no   malice against   him and that the plaintiff also met the Rift Valley Railways employees.

87. On being   cross examined by Mr Onindo, DW5 confirmed that the memo   was on Rift Valley Railways letter head.  He stated that he was on duty on 17th April 2007 but outside   the office and in Mombasa and that he saw the memo when he was given one from the notice board but he denied seeing the memo on the notice board.  He denied that   Human Resource was given the memo.

88. DW5 admitted that  Rift Valley Railways  received  a demand  notice  from the plaintiff but  that he  could not tell whether  the demand notice  was responded  to by  Rift Valley  Railways.  He stated that the memo   was pulled down from the notice board even before the complaint was made by the plaintiff Mr Rumba Kinuthia.

89. In cross  examined by  Mr Osiemo, DW5 stated that information  from the Head  Quarters  to branches would  go through him, to   the regional  Human Resource for dissemination  to all other  officers/employees.  He stated that he was not aware    that the impugned memo was pinned on notice boards of regional offices.  He stated that he was not aware that the memo reached Human Resource officers in the regions.

90. DW5 stated that the Public Relations Officer was tasked with communicating with the external public not internal staff.  He admitted that he was aware that in 2007, Rift Valley Railways engaged Oglivy to engage with the external public but that they were under Judith Achar.  He also stated that Judith Achar communicated with internal staff with authorization of the Human Resource Department.  He stated that he could not recall if he   authorized the circulation of the impugned memo.

91. When questioned on whether he had evidence to show that he was in Mombasa.  On 17th April 2007 DW5 stated that he   had no evidence but given time he could produce that evidence.

92. DW5  also admitted attending  the  meeting where  Mr Rumba  Kinuthia  addressed  employees  after he  requested  to come  and   meet them.  He stated that there   were no minutes of that meeting because the meeting   was consultative.  DW 5 stated that  he  was aware  that   employees  requested  for salary  deductions to go towards   legal fees   and that  Rift Valley Railways gave the committee  offices and venues  for  their meetings   concerning  the pending  suit  but denied  being aware of   refunds  to Judith   for legal fees. He stated that the   claim for refund could have passed through him.

93. When DW5 was   shown PEx 6,  a memo by the `1st defendant to  Whiteway, he stated  that it  went  to the Managing Director  from the  1st  defendant  without  passing through DW5 and  that a refund of legal  fees  paid to  the advocate   could have  been made.  He stated that Judith was answerable to Russel not DW5.  He stated that he was not party to HCC 35/2007 proceedings and that he did not contribute any money towards that suit.  When shown  DExh 3  he stated that  he   made contributions  towards  the filing  of the  Constitutional  court case and not the Civil Suit No. 35/2007.

94. DW5  further stated that he could not  recall if  the constitutional  court’s case was to be  filed as  a result of  the legal  opinion by Charles   Dulo  advocate.  He stated that the Constitutional case   involved management staff but he denied knowing its   status.  He maintained that he received  the  memo after 17th April  2007  and that they  withdrew  it from the   notice board and that later the  plaintiff came  to meet  employees.  He denied being aware that Rift Valley Railways   assisted Judith Achar to get her   an advocate in this matter.

95. In re-examination by Mr Kiche DW5  stated  that the publication of the impugned internal  memo  was not authorized  by Rift Valley  Railways  and that the mandate  of Oglivy   was  to manage  the Public Relations issues of the Rift Valley  Railways    outside  the company’s    working with  Public Relations  Department, which did not take away  the responsibilities   of Judith Achar  but  strengthened  her role.

96. He maintained not being   party to  HCC 35/2007 but admitted that he contributed  shs  5000/-  towards the  filing of Judicial Review   in pursuit of benefits.  He stated that where refunds   were made, employees would have   a payment voucher but that in this case he had not seen any evidence of refund.  He also maintained that on 17th April 2007 he was not in Nairobi.

SUBMISSIONS

97. The parties’ advocates filed written submissions in support of their respective positions.

98. In the plaintiff’s  submissions dated  24th February   2006  and filed on the same day, he endeavoured to answer  the  issues as agreed  and filed, urging  the court  to enter judgment  in his favour and to  award him  damages   of twenty five million (shs  25,000,000)  million  in general   and punitive  damages   as well as  exemplary  damages.

99. On the first issue   of whether  the  1st   defendant  was  an employee of the  2nd defendant  as at  17th April  2007  when the memo  subject herein  was  written   it   was submitted that this   fact  was confirmed  by the  1st  defendant’s  own testimony.

100. On the 2nd issue  of whether  the  2nd defendant    RVR was established  under  a concession within the Kenya Railways  Corporation Act to  take over the  operations of Kenya Railways  Corporation or whether  the  2nd defendant   was   a limited  liability  company that entered  into a concession  agreement  with Kenya  Railways Corporation  to operate   certain   rail services  in Kenya, the plaintiff  relied on Section 11A  of the Kenya Railways  Corporation ( Amendment) Act  which gave the legal   life   and relevance to the  2nd  defendant, which  section provides:

“ 11A  (1)  notwithstanding  any other  provision of this Act,  the board may  enter into an agreement with a person  appointed in accordance  with this Section, for the  performance  of any of its powers under this  Act by  that person;

(2) An agreement under Subsection (1) May take the form of a concession, leave or management contract

(3) The board  shall appoint the person for the   purposes of an  agreement   under this Section ( herein after  referred to as “ the  appointed persons” through  competitive tendering  in accordance  with the law for the time being  applicable    to the procurement  of public services.

(4) Where a function or power of the board is conferred on the appointed person by virtue of an agreement  under this section, the performance of the function or the exercise  of the power by that   person shall be denied  to be  the Authority  of this Act”

101. The plaintiff submitted that the 2nd defendant   was established after   the enactment   of the above law.

102. On the  3rd  issue of  whether  the plaintiff   was lead  counsel  in HCC 35/2007  on behalf   of  ex Kenya Railways  Corporation employees  whose  services  had been  transferred  to Rift Valley Railways, which case  concerned  terminal  benefits  and  other legal   remedies, the plaintiff  submitted  that this  fact   was  confirmed  by DW1, DW2, DW3, DW4 and  DW5  in their evidence   on record.

103. On the  4th issue  of whether the  1st defendant did in her individual  capacity  instruct  the plaintiff to  represent her for  or  on behalf  of the plaintiffs in HCC 35 /2007 and whether   the memo  of 17th  April  2007  was published  by her to all employees  of the 2nd defendant   and parties  in  HCC  35/2007, it   was submitted that there  was no evidence  of  any  minutes   of resolution by the committee to instruct the plaintiff and or to seek for independent legal opinion or even to authorize the writing and publication of the memo of 17/4/2007 hence the 1st defendant must have acted as an individual.

104. Further, that  the 1st defendant irregularly  authored  the  memo  in violation of  the mandate  of representatives  who were  in place and who acted  between the plaintiff  and  ex employees  of KRC in HCC 35/2007; and that in authoring  that memo  the 1st defendant  was  establishing her influence  with the  2nd  defendant which carried more weight with the 2nd  defendant’s  employees.

105. Further, that the first defendant did not   deny being the author of the  memo  but that  it  was  not fair  comment, not  an internal memo  but that  its intention  was to injure the character and reputation of the plaintiff which it did.

106. The plaintiff submitted that as the  Public Relations Officer, the 1st defendant wrote  the impugned memo in  her own  personal  capacity  by stating  “ I  to you….”

107. It  was  also submitted  that although  DW2, 3 and  4   stated  that they  wrote the  said memo, there  was   no evidence  of minutes  or  their authority  to the   1st defendant  to write  that memo  or to sign it  on their  behalf.  It  was  submitted  that their  evidence   was therefore an  attempt  to exonerate  the  1st defendant  and an  afterthought.

108. On  the fifth issue of whether  the impugned memo  was defamatory, the plaintiff submitted that  as pleaded in his  plaint, the memo   was published  of  and concerning  him and   that  by stating  “further  consultation with  seven different independent lawyers…the most single    recommendation   was that  the case  be  withdrawn  and filed   afresh in compliance   with  Section 87  of the Kenya Railways  Corporation Act Cap  397; that the 1st defendant  intended to  embarrass the plaintiff  and   paint him as  an incompetent  lawyer; and that she used  her influence  and position to create   doubt  and apprehension  among the thousands of litigants  in HCC 37/2007  to enhance her position while  defaming the plaintiff by  pinning the  memo on the 2nd defendant’s   notice boards  country  wide to achieve that defamatory  objective.

109. The plaintiff further submitted that  the  suggestion  that  Rachier   & Amollo  advocates were the  best option  and had already  implemented  that best option,   was a defamatory statement of the plaintiff  because the   plaintiff  was   embarrassed  and he  was forced to convince the   litigants   of the position after the  misleading   alleged legal  opinion  of  7 advocates.

110. It was further submitted by Mr Rumba Kinuthia  that  the publication  of the memo  country  wide    was intended  that it be read   by litigants in HCC 35/2007, non litigants, employees  of Rift Valley Railways and members   of the public  who visited   those offices of  the 2nd   defendant,  who ,upon  reading the impugned  memo, took it to impute the matters    as pleaded  in paragraph  12 and  13  of the plaint as a result of which the plaintiff suffered loss  and damage,  as no apology, clarification or retraction  was  given by the  2nd  defendant  even after the plaintiff  was vindicated   by the  rulings of Honourable Waweru J  and  Honourable Sitati         L.J. produced in evidence.

111. On the sixth issue of whether  the 1st defendant  wrote  the memo   in her capacity  as agent  of the 2nd  defendant and whether  the  2nd defendant is   vicariously  liable  for acts  of the 1st defendant  and  whether the 2nd defendant   was  negligent for allowing  the publication   of the memo, the plaintiff submitted that the  2nd defendant  having brought  notice of claim against the  1st defendant  on 8th March  2013  but having  failed to  pursue  it  with evidence; and that the  1st  defendant  having  confirmed  being promoted in 2008  even after  writing  the memo and  having received   a refund of shs   15,000/- from the 2nd defendant which money she had  paid for legal fees  to her current  advocates; and that the 1st defendant having been  exonerated  from blame   initially  until  after the RVR management   changed hands is when  she    was relieved  of her duties,   was clear evidence   that the 1st defendant was   also acting   as agent of  the  2nd defendant.

112. The plaintiff   also submitted that the fact that the 1st defendant used the 2nd defendant’s letter  head to issue the  memo which    memo    was also  distributed  on the 2nd defendant’s premises  and notice boards  without  any disciplinary proceedings being brought against the  1st defendant   was sufficient  evidence  that the 1st defendant was acting   for the 2nd defendant.

113. Reliance  was placed on  Jimi  Masege Vs Kenya  Airways   Ltd[2010] e KLR  CA 63/2003  where the Court of Appeal  held that Kenya Airways was  vicariously  liable  for publications found  on its notice board  and stated:

“……..giving out space and allowing  the document to be  published  and read by  third parties  even when  authorship of  it  was not  Kenya Airways was a different   from publishing  it  directly….”

114. On the seventh issue of whether  the ‘letter’ was actuated  by malice, spite and  ill will and  or  whether   the words  were capable  of defamatory  meaning  or interpretation as  alleged  in paragraph  12 of the plaint  and or whether  the matters in the memo were fair comment on the matter of interest  to the employees  of the  2nd defendant, the plaintiff  submitted that the constitutional provisions under Articles  32(1)  and  33(1)  are  clear that  freedom of opinion is granted but limited by Article  33(3)  to create  defamation.

115. According  to the plaintiff, the  memo   was actuated  by malice  because  he had  explained  to the defendants  that the plaintiff  complied with Section  87  of the Kenya Railways Act and that therefore  by consulting   Mr Dulo  who in turn consulted   7 other  lawyers   on the same   issue   and  addressing  the memo  to “ ALL  RVR  STAFF,” was   malicious   and failed to   take into  account those   litigants/plaintiffs  in HCC  35/2007  and   who understood  his explanation  of Section 87  of the Kenya Railways Corporation  Act.

116. That the fact  that  the defendants  were not patient   to wait   for the court rulings on the issue of  Section 87  of the  Kenya  Railways Act to see  whether their   interests   were well  catered  for  was evidence  of malice.

117. That the 1st defendant  was not  even a party to HCC  35/2007 and therefore she  used  her position  and influence  to interfere  with the plaintiff’s  conduct of the said  suit.

118. On  quantum, the plaintiff   urged the court to consider  that the   memo strained  his relationship with 3407  clients;  that  instructions  were withdrawn and that he lost  the prospects  of  getting  legal fees from a claim ranging  in hundreds  of millions  due to the  unfounded  defamatory memo.

119. The plaintiff  also urged  the court   to consider  that no  apology was  given; that   the memo   was published  country wide  to the effect  that  the plaintiff   was incompetent  for all the members  of the public  to read.

120. On the basis  of the cases  of Johnson  Evan  Gicheru V Andrew   Morton   & Another [2005]  e KLRand Wangethi   Mwangi & Another V JP Machira t/a Machira & Company  Advocates[2012]eKLR wherein the court awarded shs  6,000,000 and shs  10,000  for defamation respectively, the plaintiff urged  this court to  award him  shs  25,000,000 general  damages,  punitive  and exemplary damages against both  defendants jointly and severally.

THE 1ST DEFENDANT’S SUBMISSIONS

121. The 1st defendant  ‘s counsel  filed her  submissions  on  10th March  2016   contending that the claim by the plaintiff  against  his client  was  unsustainable in that,  there  was no suggestion in the memo  that the  plaintiff was  unqualified  to practice   law or handle  clients   and that the plaintiff admitted  in  cross  examination that a mere fact  that a lawyer  had a conflicting  position  on an  issue does not  by itself  suggest that the  other lawyer  disrespects  him.  Further that the very essence of law is that lawyers advance differing viewpoints in a very respectful manner.

122. Further, that the  mere that fact that  7 lawyers  held  a position  different from  the plaintiff’s  view, that  notice given  in HCC  35/2007 was defective  was not  in itself  disrespectful or defamatory in any   way and  if   that  was not so,  the plaintiff could  have sued  the adverse  advocates  who argued   in court that  the  notices  were defective  after the court  ruled  in his favour.

123. The 1st defendant  also contended  that the  allegation that memo  suggested  Rachier  & Amollo  Advocates  were  the best   option  was defamatory is based  on conjecture  since  no  such  comparison was in the  memo.

124. While  relying on the submissions of  the  2nd defendant  on whether  the  memo  was defamatory  of the plaintiff, the  1st  defendant’s  counsel  submitted that there   was no defamatory  meaning  capable of being  derived from the impugned  memo  but that  it  was  a communication  to the affected parties ,of the legal opinion received from an independent lawyer  sought  by the committee.

125. Further, that clients  are free to  seek  different legal   opinions  hence that   cannot be  construed  to be  defamatory  of their  advocates    and that  if changing lawyers  was defamatory  then courts would  not manage  to handle  all the   defamation cases  that  would   arise  from lawyers  suing their  ex-clients  and their   new lawyers   because of  differing  views.  The 1st defendant urged this court to find the suit herein not proved   against her and to dismiss it with costs.

THE SECOND DEFENDANT’S SUBMISSIONS

126. The  2nd defendant’s counsel filed  their  detailed   submissions  on 1st March  2016  by framing   three issues  for determination  by the court:

Whether the words in the impugned memo dated 17th April 2008  were in their natural   and ordinary meaning defamatory of the plaintiff’s character, reputation, professional and social standing.

127. Relying on Wycliffe A. Swanya Vs  Toyota  EA Ltd  & Another  CA 70/2008 and Gatley on Libel and  Slander’s 8th Edition  definition  of what a  defamatory   matter is, the 2nd defendant’s counsel   contended that  there  was  no prove that  the words contained  in the impugned  memo   was  defamatory  of the plaintiff for  reasons  that there was no evidence  of any  independent  witness to  testify  that the   plaintiff was viewed   positively  before  the publication and  or that after the   publication, he  was  shunned,  avoided, disparaged, insulted, ridiculed  or that he suffered  any form  of dent, stigma, loss of business, clients or job opportunity.  Reliance   was placed  on Simeon Nyachae Vs Lazarus  Ratemo  Musa & Another  [2007]  e KLR,  Daniel  N. Njuguna V KGGCU Ltd CA 281/1998; Gibson  Ombonya  Shirako V British  Airways  CA  149/2004, George  Mukuru Muchai V The Standard; and to crown  it all, this court’s   recent  decision  in HCC  196/2013 – Miguna  Miguna  V The  Standard Group  Limited &  4 Others  wherein all  the other  above  decisions  were applied  and the  court held  that there  can be  no defamation  where there is no independent  evidence  of those  who read  the impugned  publication  and what  they thought of the plaintiff before  and  after  the publication.

128. On whether  the memo  of  17th April  2007 was  published  maliciously:

129.  it  was  submitted by the 2nd defendant that the issuance  of notice to sue  under Section  87 of the  Kenya Railways Corporation Act    was a legal question interpreted differently  by legal  Practitioners and that that issue  was only put to  rest by  Honourable  Waweru  J and  Honourable  Sitati J  in HCC  35/2007.

130. It  was  also submitted that the words  used in the memo  were not  disrespectful of the plaintiff  or at all  and that there    was no evidence  of malice,  recklessness or negligence  on the part of the defendants; and  neither  was there  evidence of  bad  blood  between the plaintiff  and  the defendants.  Reliance was placed on Machira V Wangethi Mwangi (supra) and Godwin Wachira VOkoth [1976-80] 1 KLR 428.

131. It was submitted that   the memo was a summary of legal opinion received hence consultations were done.  It was contended that as there   was no proof of defamation, no liability   could attach to the defendants.

132. On quantum, the  2nd  defendant  submitted  that no basis   was  laid for the general, exemplary  and  punitive  damages  sought  hence the plaintiff’s claim   should be  dismissed.  Reliance   was placed on Miguna Miguna case (supra) and Eric Gor Sungu V George Oraro Ochunga [2014] e KLR where the court of Appeal enhanced general damage to 5 million.  It  was submitted that in this case, having regard to the   circumstances of this case,  shs  500,000 or  less should  be awarded  should the court  attach any liability  to the  defendants  since there   was no republication  of the memo  and that no specific damage   was proved  and that exemplary and punitive  damages are not  available  to the plaintiff since  it  was not proved that  the publication was for profit or the defendants had acted  oppressively, arbitrarily or  unconstitutionally.

133. Further, that as there   was no evidence that the publication tended to cause people to shun or avoid the plaintiff, the suit   must fail with costs   to the 2nd defendant.

DETERMINATION

134. Having  carefully  considered the pleadings, the testimonies  of the parties  and their respective  witnesses  and the documentary  evidence coupled with  their submissions supported  by statutory   and case law,  in my humble view, the issues  for determination  in this suit, taking into account the  agreed  filed issues are:

1. Whether  the memo  dated   17th April 2007  signed by  Judith Achar  on the 2nd  defendant’s   letter  head and  circulated  to all staff  of Rift Valley  Railways  was defamatory of the plaintiff;

2. Whether the memo dated 17th April  2007 was laced  with malice, spite  and  ill  will and or  whether it  was  falsely, recklessly and or   negligently  written;

3. Whether  the plaintiff is  entitled to any award   of damages  and if so, how  much;

4. What  orders should the court make;

5. Who should bear the costs of this suit?

135. On the  first issue  of whether  the plaintiff  was defamed  by the memo  dated 17th April  2007, to answer this important   question, it is important  first of  all, to establish  what defamation  is.  In Wycliffe A. Swanya V. Toyota East Africa Limited& Francis Massa Nairobi CA NO.  70 of   2008, the Court of Appeal stated that:

“It is common ground that in a suit founded on defamation the plaintiff must prove-:

i. That the matter  of which the plaintiff complains  is defamatory  in character;

ii. That the defamatory  statement  or utterances was published  by the defendant  and that  defendant’s   publication in  the sense  of defamation means that  the  defamatory  statement   was communicated  to  someone   other than  the person   defamed .

iii. That it   was published maliciously.

iv. In slander, subject   to certain exceptions that the plaintiff has suffered special damages.

136. In  Richard   Otieno  Kwach V The Standard  Limited & David  Makali  Nairobi HCCA  1099 of  2004, the  court observed that   “ words  are defamatory   if they  involve  a reflection upon the personal  character  or official  reputation of the plaintiff….”

137. In J.Kudwoli V Eureka Educational and Teaching  consultants  & 2 Others HCC  126/90  Kuloba   J set  out the matters  that a plaintiff  in a suit   founded on  defamation  be  it   libel  or slander, must  prove.  The  matters are:

i. The matter  of which  the plaintiff  complains   was published  by the defendant:

ii. That the publication  concerned  or referred to  the plaintiff;

iii. That the publication was defamatory in character.

iv. That it was  published  maliciously; and

v. In slander, subject to certain exceptions, that the plaintiff   has thereby suffered special damages.

138. In the instant case, it is not   in dispute that some of the issues framed by the plaintiff are settled.  For  example, it is admitted that the  impugned  memo  was   written by the  1st defendant, on the  letter head  and  material of the  2nd defendant   who was her employer; that the said  memo was  addressed  to all staff  of Rift Valley  Railways, the 2nd defendant  and posted  to all notice boards  of  the 2nd defendant’s offices  countrywide   and  admittedly, any other  person  other than  the Rift Valley Railways   staff  could read it.

139. It is  also  not in dispute  that  although   the memo  was written  by the 1st  defendant it  was   distributed/circulated  and or published by the   2nd defendant through its Human Resource Department  and Human Resource  officers  in the regions.

140. This evidence was brought  about by  the  1st defendant’s  witnesses  and  especially  DW4  who  was  a Human Resource   Officer himself and who confirmed  that DW5  Mr David  Rimberia the Head quarter Human Resource Manager   endorsed  the memo before  it  was circulated  to the region  to be distributed by Human Resource  Officers  in those  regions.

141. Although DW5 tried to deny the fact of his  authorization/endorsement on the memo  and  or being  aware of  the memo  before it   was  distributed  countrywide   by saying that he  was in Mombasa  and  that he only learnt of it   on 18th April  2007, this court had the opportunity  of hearing  and  seeing  DW5  as he testified and  I observed that he  was  not a truthful witness  or at all.  He gave very evasive and doubtful answers to the questions put to him at all times.  He did not   deny that the signature of endorsement   on the memo    was his.  He simply appeared not to be sure simply because it was not clear.  This court did not believe this witness at all who only tried to give direct answers of yes and no during re examination.  He also  contradicted   himself  by denying  that he ever   paid/pledged  any  contributions  for the  court case  and later admitting that he paid after being  shown the  list of contributors  in DExh 3   where is listed  as No 3  from the bottom on page  3 of the  listing   with a pledge  of 5000, his staff  No, 38964  from Human Resource  Department.

142. Further this  court believed  the  1st defendant and her  witnesses   evidence that  indeed  Dex4 the impugned  memo  was  endorsed  by DW5 for all Human  Resource   staff to note.  DW4 was categorical that no memo would be distributed to staff unless the Human Resource Manager endorsed   or authorized such circulation and that that was the established protocol    in Rift Valley Railways.

143. I therefore   find that  it  was hypocritical of DW5  to claim that  he  was  no aware that the memo  reached Human Resource  officers   in the regions.

144. I therefore agree with the plaintiff’s submissions that the publication of the memo was done by the 2nd defendant through its agents/employees in the regions after DW5 endorsed its distribution/circulation through all Human Resource staff.  I also  accept  the holding in Jimi  Masege V Kenya  Airways Ltd [2010]  e KLR  that  “………giving   out space  and allowing  the document  to be published   and read  by third  parties, even when  authorship  of it    was not KQ’s   was no different  from publishing  it directly..”which holding is in parimateria with this case wherein the impugned memo was pinned on the notice boards of the 2nd defendant although it was authored by the 1st defendant.

145. Consequently, I find that the matter  which the plaintiff  complained of   was  authored by the  1st  defendant as admitted  and  published  by the  2nd defendant.  Had the DW5 refused to endorse   its circulation, the memo   would not have gone to the Rift Valley Railways regional offices and notice boards.

146. The claim that DW5  was on 17th April  2007  in Mombasa  on official  duties   was farfetched  and incapable  of belief as there  was no such  proof  of him being  in Mombasa  at the time he is said  to have  endorsed  on the memo  to all Human Resource  staff.

147. As earlier stated, DW5 was a very evasive witness incapable of being believed by the court.  He must  have come to  court simply  to cover up his  former  employer  and  to cover his  own “sins”  of allowing  the memo to be distributed  which gave  rise to  this suit.  I also found him escapist for and   on behalf of his former employer.  From his testimony, DW5 knew   everything about   the former  Kenya Railways Corporation  staff committee  which  was  pursuing  their legal rights  to their  terminal benefits   as he  was one  of those  former  KRC   staff that  is why he  pledged to  pay legal  fees of  shs  5000/-   for filing of the constitutional case, but he pretended not to be knowing what was happening to those former employees of KRC and who were transferred to RVR.

148. For example,  at one time DW5 was  saying  that the constitutional  case  was for  senior Management, forgetting  the fact that  case, from the available  evidence,  was the option  for   HCC 35/2007  after the legal opinion  of Charles  Dulo  was received.  The witness  also pretended  that he did not  know  anything  about the legal  opinion of Mr Charles Dulo yet he know about  the meetings  that  were  going on concerning the benefits  of ex  Kenya  Railways  Corporation  staff including  the meeting  held  with the plaintiff  to clarify  on  the issue of validity  of notice given  to Kenya Railways Corporation before  institution of  HCC  35/2007.

149. Having found that the impugned memo was published by the defendants jointly and severally, the next question is whether the publication concerned or referred to the plaintiff.  The impugned  memo  dated  17th April  2007 Ref. RVR/PR/1/3  addressed  to all staff  of Rift Valley Railways  concerned  an update  on  High Court Civil case No. 35 of 2007- Ex Kenya Railways Corporation  employees Vs Kenya Railways  Corporation.  In the said   memo, paragraphs  3,4, and   5  clearly  mention  the  plaintiff as the advocate  who  was  engaged  to assist   in settling   the issues of transfer of services  of staff from Kenya Railways  Corporation  to Rift Valley Railways.  The memo also states that   “…..However, a technical problem was detected in the suit lodged by M/S Rumba Kinuthia & Advocates.  In this suit, Kenya  Railways Corporation  was not given a 30  days’  notice of  intention to sue as  it is required by Section  87  of Kenya Railways Corporation  Act Cap  397. ”

“…….However, when Rumba met with staff and the issue of compliance   with the Act   was raised, he replied that he had given 38 days notice to Kenya Railways Corporation….”

150. From the above extract, no doubt, the publication  complained  of concerned the plaintiff’s handling of HCC 35/2007 specifically, the issue of  notice to institute  suit as   required by Section  87 of Kenya  Railways  Act Cap  397 Laws  of Kenya.

151. The next question is whether the publication which concerned the plaintiff was defamatory   of the plaintiff’s character and reputation.  From the very  nature  and  definition  of defamation as a tort, defamation  is the  publication of a false  statement  which  tends to lower  a  person’s  reputation  in the   estimation of right thinking  members  of the society generally  and which make  or cause  him to be  shunned  or avoided.

152. Therefore, it was upon the plaintiff to prove that by the publication which was allegedly false, he was exposed to public hatred, contempt or ridicule or that the words in the memo caused him to be shunned or avoided by certain people.

153. The  plaintiff must   also demonstrate that  the natural  effects  of the published  words  were meant  to destroy, demean, degrade  and diminish the esteem in  which he  was  ordinarily  and generally  held, even if there was no proof of damage since this was libel.  It is not sufficient   to state that the publication defamed the plaintiff.  In Hill Vs  Scientology [1995] 2 SCR  1130 the Supreme Court  of Canada  held that:

“Freedom of expression has never been recognized  as obsolete…..The right  of public discussion  is, of course, subject  to legal  restrictions; those based upon  considerations  of decency  and public  order, and others   conceived for the  protection of  various  private and  public interests  with which, for example, the laws of defamation  and sedition are concerned.  In a word, freedom of discussion means……” freedom governed by law.”

154. The above  holding echoes  the  spirit and letter  of Articles  32(1) 33(1) and 33(3)  of the Constitution of Kenya, 2010 which not  only guarantee the freedoms of speech and expression but also  limit the same freedoms under Article 33(3)thereof where  defamation  or vilification  of others, propaganda for  war or hate speech  is concerned.

155. It therefore follows that albeit the defendants   hung on Article 32(1)   of the Constitution, the freedom guaranteed therein is not absolute. The plaintiff  must prove that  the publication  tended to  lower  him in the  estimation of right  thinking  members of the society  generally  and caused them  to shun or  avoid  him or  treat  him with contempt.

156. This court  has no doubt that consideration   must be given to the  particular  significance  reputation has for an advocate  of the High Court of   Kenya,  and  a senior advocate   for that  matter  of  the stature  of Mr Rumba  Kinuthia.  As was  held in the  Hill V Scientology  case (supra)  that: :

“……….  A lawyer’s practice is founded and maintained upon the basis of a reputation for professional integrity and trust worthiness.  It is the cornerstone of a lawyer’s professional life.  Even if endowed with outstanding talent and indefatigable diligence, a lawyer cannot survive without a good reputation…..Judges rely upon commitments and undertakings given to them by counsel.  Our whole system   of administration of justice depends upon counsel’s reputation for integrity.  Anything that leads   to the tarnishing of a professional reputation can be disastrous for a lawyer………”

157. The plaintiff in this case singled out certain   phrases in the impugned memo that he considered   highly   disrespectful and therefore defamatory of him.  He averred that the general language and tone of the memo   was highly negative    and disrespectful to anyone reading it.  According to the plaintiff, “referring someone by name in most cases shows some respect but referring to the same person   as an object as in paragraph 2 of the memo that……..”  “You all know……Rift Valley Railways staff engaged“a Lawyer”…….”,shows some   negativity , which makes   the rest of the memo  all the more  susceptible  to defame”

158. The plaintiff  also complained  that the act of saying “ further  consultation  with seven   different  independent lawyers….the most single recommendation was that the case can be withdrawn  and filed  a fresh  in compliance  of Section  87  of the Kenya  Railways Corporation  Act Cap  397,” was a solidification of the plaintiff’s incompetence  by the legal   opinions of Mr Charles Dulo and  7 Other lawyers.  Further, that those words “created doubt and apprehension among the said litigants hence the defendants by publishing such a memo achieved their defamatory objectives.

159. Whereas I accept that defamatory  statements, as  was  held in the Hill V Scientology case (supra) “…are  very   tenuously  related  to the core values…..and  that they  are inimical to the search for truth; and  that injurious  statements   cannot  enhance    development, nor can  it ever  be said  that they  lead to   healthy  participation in the affairs of the  community; and are indeed   detrimental  to the advancement  of these values  and harmful  to the interest of a free and  democratic  society;……”, in the  instant  case, I find  it extremely  easier said than done  to find that the words  contained in the impugned published   memo  were  or bear  any defamatory meaning   or  imputation  against the plaintiff.

160. I find that the  epitome of the complaint by the plaintiff who is a very senior advocate of this court touches on the interpretation of Section 87  of the Kenya Railways  Corporation  Act which requires  that  before   instituting  suit against   the Corporation, a plaintiff  must give  30  days’  notice of  intention to institute  suit.

161. In the instant case, after the claimants in the HCC 37/2007 had instructed  the plaintiff  to file the said suit on their behalf, it  was alleged  that the case  took  some time  to be heard and that because  the claimants who were former employees of KRC were  worried  of being  evicted  from the  Kenya Railways  Corporation Staff  residences because of the  demand  by Kenya Railways Corporation (their new employer) that they   pay  market  rates for the staff houses they occupied prior to the concessioning of KRC to RVR, while their   case on  their  benefits  was still  pending, the claimants   sought   independent  legal opinion  and  Mr Charles Dulo  advocate   was consulted to provide that legal  opinion  dated 2nd  February  2007  addressed  to the  “ Committee of Eminent  Persons.”

162. One of the  advisories by Mr. Charles Dulo  was a recommendation  that  non compliance with  a statutory notice under Section  87  of the Kenya Railways  Corporation Act Cap  397 Laws of Kenya rendered  the suit fatally defective.

163. In addition, the advisory  recommended  that the claim   should have  been  commenced  by way  of Judicial  Review Orders  of certiorari to quash the decision of Kenya Railways  Corporation to transfer  the claimants’  services to  the Rift Valley Railways and Mandamus,  to compel  Kenya Railways  Corporation    to pay them their  terminal  dues  as at 1st  November  2006   in accordance   with the Kenya Railways  Corporation  (Pensions  and Gratuities)  Regulations, 1983  and that  Judicial  Review is usually fast tracked  and it does  not require  witnesses.

It is from the above legal  opinion  that  the  staff’s  committee decided to  instruct  Rachier &  Amollo Advocates  to  implement  the filing  of Judicial Review  matter in court   before  instructing  the  1st defendant   to write   a memo  to all  the  former KRC who were now RVR staff, notifying  them  of the “technical problem detected” in the plaintiff’s  brief.

165. As it  turned out  from the rulings of  Honourable  Waweru J and  R. Sitati J  dated  5th July  2007 and 13th May  2011 respectively, which rulings dismissed  the preliminary  objections  raised in  HCC  35/2007  to the  effect that  the suit  was  incompetent   for  want  of valid  notice under Section 87 of the Kenya   Railways  Corporations Act, cap  397 Laws of Kenya, among other grounds; the  plaintiff  was  vindicated   in his advice  to his clients  that the suit was not fatally  defective.

166. The  question is, could that  in itself, that  is, a difference  in legal  opinion  by two  different advocates and the client   believing  one advocate  and not the other   be construed  to bear the defamatory connotation?  My answer is a resounding NO!

167. While  changing   instructions  from one advocate  to another  by a client  may  be  construed  as being due  to lack of  faith  in the competence  of the first  advocate, it must  be understood  that  a party  has a right  to be represented  in court or any proceedings before any tribunal, by an  advocate of their  own choice, whether  under the current constitution or the repealed  constitution.  That being  the case, this court is  unable to find  that lack of faith in the advocate’s  competence  and therefore seeking  a second  or even  8 opinions  to satisfy  oneself  of the status of one’s  case would  amount to being disrespectful  and therefore  defamatory  of an advocate.

168. The advocate  who has lost the  client  like the plaintiff herein, and  therefore  losing out his legitimate  expectation  to earn hundreds of  millions of shillings in legal  fees  following  the departure of the client   has a sure remedy  in law.  He can never go empty handed. The law  ( Advocates  Act Cap  16 ) Laws of Kenya gives  him the right to  file and  or tax  his  advocate/client  bill of costs  and obtain judgment  for those  costs under  Section  52  of the Advocates  Act.  The remedy is not found in suing the instructing client(s) for defamation of character!

169. Clark & Lindsel  on  Tort  17th Edition , London Sweet  & Maxwell  1995  at page  1018  paragraph  21-42 states:

“Whether the statement  is defamatory or not  does  not depend on the intention  of the defendant  but on the probability  of the case  and upon the natural tendency of the publication, having  regard  to the surrounding  circumstances.  If the words   published have a defamatory   tendency it will suffice even though the imputation is not believed    by the person to whom they are published.  The mere intention to vex or annoy will not make a language defamatory which is not   so in its own nature.  Words apparently defamatory may be proved by evidence of the circumstances to have been   understood in another and involvement meaning.”

170. Advocates who are students of professional ethics are forever reminded that clients remain clients. They are never friends of their counsels.  The fact  that clients come  and go is not necessarily  attributable to  disrespect or out of lack of the appreciation of their  counsel’s  industry, although  that may  be the  main reason, in most  cases.

171. In Nation Newspapers Limited  Vs  Chesire [1984]  KLR  156  the Court of Appeal  held that:

“ An action or libel by  innuendo  depends  for its  success on the proof  by the plaintiff that  special  circumstances are known to persons who read the offending  publication and evidence of the special  circumstances.”

172. The plaintiff   in this case  has not  demonstrated  to the satisfaction of this court that the  impugned memo portrayed  him as  not being  qualified  to practice  law or handle  clients  cases  in a competent way.   I find that the impugned memo merely communicated to the staff the summarized form of the legal opinion received from the Mr Charles Dulo advocate.

173. Furthermore, from DEx 2,  in the letter  dated  11th  April  2007 from  Rift Valley Railways staff to the  Executive  Director   Mr Charles  Church, the  parties  to HCC 35/2007 had agreed to pursue  parallel  Judicial Review  proceedings   to the main  case as  a fallback  position  upon being advised   and in the said  letter,  the various staff  requested  for salary  advances  of shs   224,000 to be paid to Rachier  & Amollo  Advocates as legal fees to kick start the Judicial Review process.

174. The other  ancillary  question is whether strictly speaking, words  which are  published  could be  said to be  defamatory  of the plaintiff where the plaintiff  does not  call any  witness  or third  party evidence  to demonstrate  that  they read   the impugned words   and found those words to be defamatory  of the plaintiff or to bear any defamatory meaning.

175. The plaintiff herein testified and  claimed that  as a result of the  publication, the clients  took from him  their file  in the HCC  35/2007 and  that he   was viewed  as an  incompetent   advocate  by the  8  lawyers  who reviewed  the matter  and gave the advisory  and that other   persons  who read  the memo   who included   litigants   and  non litigants in HCC 35/2007,  and the  general public, being employees and visitors of the 2nd  defendant’s  offices   country wide  who read  the memo,  took it to impute  the pleaded matters.

176. However, the plaintiff did not produce any letter showing that his clients withdrew instructions   from him following the publication of the memo.  None of his   clients  or other  general  member  of the  public  testified  that they  read the  memo  and found it  to be defamatory of the plaintiff.

177. Reputation is what other people think of a person   who alleges   that he was   defamed by the publication.  It is not one’s own opinion of him.  Therefore, for  words to  tendto  injure one’s reputation, the person  or claimant  must adduce  evidence  to prove  that the published  words  tendedto cause other  people  to shun or avoid  or treat him with  contempt. In other  words, the  right thinking  members  of the society generally who read the publication and viewed the claimant with disrespect, ridicule, dislike or de esteem must be called as witness(es)  or communication  from those  people  in the form of emails  produced  to show their reaction  after  they read the impugned publication.

178. In Simeon Nyachae  V Lazarus Ratemo Musa  &Another [2007]  e KLR cited with approval in Miguna Miguna V The Standard Limited  &  4  Others  [2016] e KLR, the court  was clear that the plaintiff in a defamation  case  must demonstrate  that  as a result  of the publication, the  plaintiff has been  viewed  differently  from the  way he was viewed  before  or that he has become a light weight  as a person, professionally, financially  and or  politically or in any  other  manner.

179. In other words, the plaintiff   claimant must prove that there   are those people who believe that he   was defamed by the publication.

180. In  George  Mukuru Muchai  V The Standard Limited  HCC 2539/1997, the court  stated and I agree:

“ In my view, the most  important  ingredient  in a defamation  case it the  effect of the spoken  or written   words in the mind   of third parties about  the complaint  and not how  he/she  himself/herself  feels  the  words portray  about him/her.”

181. In Daniel N. Ngunia Vs KGGCU Ltd  CA  281/1998  the court of  Appeal  also clarified  that:

“ leaving  aside  any questions of privilege upon  which the  learned  judge   dismissed that   aspect of the appellant’s claim, we  note from the  record that the  appellant was the  only person  who testified  in support of  his claim.  In those circumstances, we cannot see how a claim based on defamation could have possibly succeeded even in the absence of the defence or qualified privilege(Emphasis added).

182. I am  equally  inclined  to accept  the  decision in Gibson Ombonya Shiraku V British  Airways Plc CA 149/2004  where the Court of Appeal  was emphatic  that:

“Wedecline the invitation by counsel to hold that there is a presumption that somebody must have heard the alleged defamatory   words.  If there were defamatory words, and if they were published, the burden of proving both their existence and publication reposed on the appellant.  He failed to discharge it”

183. I also  rest  with my  recent  decision in Miguna Miguna  case(supra)  that in defamation cases, there is  necessity for independent evidence  to show that   indeed  there  are those  who believe  the plaintiff  was  defamed by the  publication. The plaintiff in this case could even have called his emissaries whom he send out to conform that the memo was all over the 2nd defendant’s regional offices and whether those emissaries read the memo and whether they considered in to be defamatory of the plaintiff.

184. In my  view, the words in  the impugned published  memo  had no defamatory tendency, in as  much as  they may  have vexed  or annoyed the plaintiff but I find no defamatory imputation or connotation in those words  and therefore not  actionable.

185. The other issue for consideration is whether the impugned publication was published maliciously.  As already  stated, there   was no evidence  that the publication  tended to lower the plaintiff’s reputation in the estimation of right thinking   members of the  society generally  and  which made  them  to shun or avoid the plaintiff or treat  him with contempt  and disesteem.

186. For a  publication to be malicious, malice can be  inferred  from  a deliberate  or reckless or even negligently ignoring  of facts  ( see JP Machira Vs Wangethi Mwangi & Nation Newspapers Ltd CA  179/77).  Further, malice doesn’t necessary mean spite or ill will but recklessness itself may be evidence of malice.  Evidence  of malice may  also be  found  in the publication  itself  if the  language  used is utterly beyond  or  disproportionate  to the facts.

187. In the  present case, even if the court  was to find  that the memo   as  published   was defamatory, which  as I  have  stated is  not  defamatory, there is absolutely no manifestation of any deliberate  or  reckless  or negligent   ignoring  of facts.  The  evidence  on record  is clear  that  the author  and the committee  that she    was writing  the memo on behalf of  were  not and  are not  lawyers and that  is the  reason  why they  sought  legal counsel and advisory of another advocate to assist in interpreting to them  the effect  of non- compliance  with Section 87 of the Kenya Railways Corporation Act.  The evidence is  clear that it  was  upon  receipt  of that  legal  opinion  that the claimants’ representatives went for a second  option  of filing  Judicial Review  proceedings and  brought  to the  attention of the plaintiff the advise  received.

188. Although  the plaintiff claims that  he  was not  notified  of the legal opinion by DW 1, and the latter maintaining that she personally took the  impugned memo  to the plaintiff  together  with the  cheque  for  rent from Rift Valley  Railways,  this court  believes  the testimony  of DW1 Judith Achar  for reasons  that she impressed  the court as a forthright  witness  and  capable  of being believed.  From her demeanor in court, the court could not derive any lie, evidence of malice or even disrespect for the plaintiff advocate.

189. Furthermore, the plaintiff  did not  tell the  court how  he accessed  the impugned memo, although  he claimed  that it  remained on the  2nd  defendant’s  notice boards  for  10  days.  He did  not disclose  the  person  who brought  the memo  to this  attention, albeit  he testified  that  after the memo was published, he sought  audience  with the committee  which he addressed, clarifying  to them  that he  had served  notice  to sue  upon Kenya Railways  Corporation  contrary to  the  advisory  which  they had received  from Charles  Dulo.

190. The record is also clear that the two rulings by Honourable Waweru J and Honourable R. Sitati J only came after the publication of the memo and not before. Thus, it cannot  be said  that the  defendants  disregarded  the decisions of the court  and published  a memo  touching  on  a mater which  the court  had found  in favour  of the plaintiff- that of issuing   notice to sue, which  Honourable  Hatari  Waweru J  found that   the requisite  notice  was given  on 29th November 2006  before suit  was filed on  25th February  2007.

191. From the ruling  of Hatari Waweru J in HCC 347 of 2007 on the issue of notice of  intention to institute suit,   it is clear  that  the issue  of non  compliance with Section  87  of Kenya Railways Corporation Act  was raised   as a response  to the application for injunction  against  Kenya Railways Corporation by it ex employees, at  a time  when   Kenya Railways Corporation   had increased  housing  rents  for  its  ex employees  and  was  evicting  them from the staff  houses. That is also the time when the ex employees sought a second legal opinion on the matter and before the ruling   was delivered on 6th July 2007. That being the case, I believe  the  1st defendant’s  testimony  that there was a lot of  anxiety at the time  and that they cannot be  blamed for  failure to inquire  since the issue  of whether  or not the  30 days  notice had been issued to Kenya Railways Corporation   and whether  failure  to issue   such notice  was fatal  to their suit was  pending  determination by the court.  In my view, it cannot therefore be claimed that the defendants ignored the facts or failed to inquire into the facts.

192. I also find that the fact of calling  the plaintiff “ a lawyer” or  ‘Rumba’ in the mentioned   memo  is not, in my  humble  view  evidence  of disrespect, spite  or  malice.  Further, although the  plaintiff wanted  the court  to believe  that choosing  Rachier  & Amollo   advocates was the best  option for the  1st defendant   and her team, that  is not  the case.  The  memo   was  recommending, as per the legal  advisory  opinion, that  Judicial Review  would be   the alternative and that   they had  instructed  Rachier  & Amollo Advocates  to file  for judicial review since, going   by the  advisory  of Mr Charles Dulo advocate, the  time frame for instituting  Judicial  Review was almost  expiring  hence the  matter  had to be  filed  expeditiously.  The impugned   memo was also clear that Judicial Review proceedings   were to run concurrently   with the HCC 35/2007.

193. This court does not  find any  overreaching  language  used in the  impugned  memo that is  utterly  beyond  or  disproportionate  to the facts .

194. Moreover, there is no evidence of any bad blood between the plaintiff and the two defendants.  DW1 was clear in her testimony that when she submitted that impugned memo to the plaintiff, she also gave him a cheque for payment of their rent, which was due to Kenya Railways Corporation.

195. In my humble view, if there was   bad blood, the defendants could not have entrusted the plaintiff with a cheque for payment of rents due to Kenya Railways Corporation.  I am  on the evidence  available, unable to find any extrinsic  malice, ill will or spite  or any indirect  or improper   motive in the 1st  defendants  mind at the  material time  that she wrote the memo.

196. In the end, I find that the plaintiff has failed to demonstrate that he was defamed by the publication of the memo dated 17th April 2007.  However, had I found liability for the plaintiff, the next issue is what damages   if any would the plaintiff be entitled to.

197. In Mikindadi V Khangan  & Another  [2004] KLR  496, Ochieng  J was  clear that:

“ A successful plaintiff in a defamation action is  entitled to  recover  as general  compensation  damages  such sum  as  will compensate  him for the  wrong he had suffered.  That sum must compensate him for the damages to his reputation, vindicate his good name and take account of the distress, hurt and humiliation which the defamatory publication has caused. The court must take the necessary precaution   to ensure that whatever award it gives a successful plaintiff is generally in line with what courts have been awarding.”

198. Thus, in the event that   I am found to have  erred in my verdict  that the plaintiff did not  prove  the tort   of defamation, I would  have  awarded  the plaintiff  damages  to vindicate  for  his  alleged  embarrassment and  disrespect.  Considering   the case law  relied  on by  both  the plaintiff and second defendant in their submissions,   and the  principles  laid down  in Johnson  Evan  Gicheru V Andrew  Morton CA 314/2000 Nairobi  borrowed  from the guidelines  in Jones  V Pollard  [1997] EMLR  233  regarding  quantum of damages, namely:

1. The objective   features of the libel itself, such as its gravity, its province, the circulation of the medium in which it is published, and any reputation.

2. The  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.

3. Matters tending to mitigate damages such as the publication of an apology.

4. Matters tending to reduce   damages.

5. Vindication of the plaintiff’s reputation past and future.

199. And  taking  into account  the above  guidelines, and   considering  the fact  that  this  was a one off publication which  was  distributed  to  staff of Rift Valley Railways  country wide; not  repeated  and with  no apology offered  and there being  no  aggravating  or mitigating  factors, in my  view,  an all inclusive  sum of shs  4,000,000 general  damages  for   defamation of character would  suffice  to compensate  the plaintiff, vindicating  him to the   public and solatium for any wrong done.

200. I would also award  him costs and interest  at court  rates  from date  of judgment   until payment  in full based  on the Miguna Miguna (supra)  case  grounded  on Samuel  Phillip  Koloti  V Kenya  Cargo Handling  Services  Ltd  CA 76/92 where the court of Appeal  held that:

“General damages bear interest from the date of judgment while special damages bear interest   from the date of filing suit”

201. However, in this case, having found that the plaintiff was not defamed and that there   was no wrong done to him, I dismiss his suit against each of the defendants, whether jointly or severally.

202. Costs are in the discretion of the court and to the successful party.  The defendants are the successful litigants   in this suit.  However, having  considered   the circumstances   of this case,  which pitied an advocate  and his  former  clients represented  by the  1st defendant  Judith  Achar; and the latter’s  former  employer  - the  2nd defendant  Rift  Valley Railways, I would, in the circumstances  order  that each party bear  its  own costs  of this suit.

Dated, signed and delivered in open court at Nairobi this 19th day of September 2016.

R.E. ABURILI

JUDGE

In the presence of:

Mr Muchoki for the plaintiff

Mr Kiche for the 2nd defendant

Mr Otieno h/b for Mr Osiemo for the 1st defendant

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