Ruth Njiru James v Njoroge Ndirangu, Mundia Gateria, Ken M Thairu & Public Service Club [2015] KEHC 2383 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL CASE NO. 201 OF 2012

RUTH NJIRU JAMES ……………………………………………..PLAINTIFF

VERSUS

1. NJOROGE NDIRANGU    )

2. MUNDIA GATERIA           )

3. KEN M. THAIRU                )

4. PUBLIC SERVICE CLUB)……………….....……………DEFENDANTS

JUDGMENT

By a lengthy and detailed plaint dated 2nd May 2012  and filed in court  on 3rd May 2012, the plaintiff  Ruth Njiru James sued  the defendants  herein  Njoroge Ndirangu, Alvin Giteria , Ken M. Thairu  in their capacity  as Chairman, Treasurer and Secretary respectively, being the officials of  the  Executive  Committee of the 4th defendant Public Service Club, a public unincorporated  body. She sought general damaged for  alleged  defamatory materials both written (libel) and (slander) allegedly uttered  against  her, the subject  of the suit, together with  costs  and interest  on damages and costs, and  further or other relief with  the inherent jurisdiction  of the tribunal.

According to the said plaint, the plaintiff Ruth Njiru James was at  all material times to this suit employed  by the defendants as an assistant club  accountant/ IT Administrator  charged with the responsibility  of making  entries  on a daily basis  into the  club books  of bills of sales  and transactions  of the club’s stock  of food, liquor  and beverage sold  by the club’s  barmen to its customers.  The said  plaint alleges  that on or  about 18th April 2011, the defendant’s in the presence  of Joyce Kariuki  and Sarah Ndambiri the  3rd defendant tapping  on a pile of member’s books  uttered  words directed at the  plaintiff, which words  were defamatory  as contained  in paragraph 6 of the plaint.

It was the plaintiff’s assertion that in their natural  meaning the words as uttered  and published  on the  undated  write up of “theft cases”  and on summary dismissal letter dated 5th May 2011 served on the plaintiff on 11th May 2011at 1. 25pm, meant and where  understood  to mean that the plaintiff  had been unfaithful  in the performance  of her duties with the public  service  club as  an assistant/accountant IT Administrator  and had, over  a period  of more than a year stolen unquantified  and or unquantifiable sums of money  belonging  to the Public Service  Club and as consequence  she  had to pay the ultimate price by summary  dismissal  from employment  and lose her  benefits including  salary for  days worked.

The plaintiff alleged  that the said words  were calculated to disparage  and they did  disparage and injure  her credit, character  and reputation and in her  said career   and she  has been brought into hatred  and ridicule  and has thereby been  unable to obtain alternative employment.

She  therefore  claimed damages  against  the  defendants  jointly and severally for the said  libel and defamation  and that despite  demand  the defendants  had refused  and ignored  or failed  to honour  her demand.

The plaintiff took out summons to enter  appearance  on 7th May 2012  and on  10th May 2012, the said  summons together  with the plaint and  other accompanying  documents  were served upon the defendants  by Fredrick  N. Wamalwa  Advocate by his own affidavit  of service sworn on 14th September  2012  under Order 5 Rule  15(1) of the Civil Procedure  Rules.  On 15th May  2012  the defendants  through the firm of Njoroge Wachira  & co. Advocates filed a  Notice of Appointment  of advocates  followed  by the Memorandum of Appearance  on 31st May 2012.  No defence was filed to counter the allegations leveled against the defendants by the plaintiff.

On 27th August 2012  the plaintiff  sought for judgment  in default  of defence through a request  dated  15th August  2012  under Order 10 Rules 4,5,6  of the Civil Procedure Rules, which interlocutory  judgment  was formally entered  against  the  defendants  on 17th October 2012  by the  Deputy Registrar Hon F. Wangila.  The plaintiff therefore set down her suit for formal proof hearing for 17th November 2014.  When the matter came  up for  hearing before me  on 17th November 2014, having  satisfied  myself  that  a regular  interlocutory judgment  had been entered  against  the defendants  and their advocates  having been served with a hearing  notice  for formal proof  hearing  on                     29th November 2013 over one year earlier as shown by the  acknowledgement  stamp  by the said advocates  at 1. 49 pm on              29th November 2013,  and affidavit of service  sworn by F.N. Wamalwa   and filed in court  on  14th November 2014, I allowed  the plaintiff  to proceed  and formally prove  her claim and  for assessment of damages.

The plaintiff  testified  and called one  other  witness Mr Humprey  Maina Gatururi who was  her former workmate at the Public Service Club  before she  was summarily dismissed  following the allegations that she had colluded with other  employees to steal money from the club.  He had also left employment and was a local farmer in Muranga.

In her sworn testimony, the plaintiff adopted her statement recorded and filed in court together with her plaint which statement was adopted as her evidence in chief besides her oral testimony.  The same was with her witness statement.

But  before delving  into the depths  and widths  of the plaintiff’s testimony  in court in support of her claim, I must  stop to ask myself  2 questions  that are very striking  with this  claim as filed.  The questions  which, if answered  in the negative  will determine  the claims at a  preliminary  stage and therefore there would  be no use for  me to waste judicial time determining  the merits  and demerits of the claim herein against  the defendants as presented.

Was the plaintiff’s suit filed within the statutory limitation period?

The answer lies in examining the pleadings, the plaintiff’s self recorded statement as filed and her testimony and that of her witness in court.

The plaint, parts of  which have been summarised above allege  that the cause  of action arose between 18th April 2011  and 19th April 2011 leading to  5th May 2011 when the plaintiff was summarily  dismissed  from employment following  those  allegations that she had colluded  to steal  money from the club.

The plaint was filed in  court on 3rd May 2012  in other words, the plaintiff  relied on her summary dismissal  letter of 5th May 2011 to file  suit for  defamation, citing  the libelous  publications and utterances  allegedly made by the defendants  between 18th and 19th April 2011.

Section 4(2) of the Limitation of Actions Act, Cap 22 Laws of Kenya provides:

An action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued:

Provided that an action for libel or slander may not be brought after the end of twelve months from such date.”

This is what is  contained  in the proviso to Section 4(2) that  an action founded  on tort  may not  be brought  after the end of  three years  from the date on which the cause of action  accrued, but where the tort complained of is libel or slander, then it may not be brought after the end of twelve months from such date.

As I have stated, the plaintiff’s claim  is  contained in paragraph 6,7,8 and 9 of the plaint, that she was defamed  on diverse  dates while she  was still in  employment  of the 4th defendant, by the  utterances  and  publication made against her by the 1st, 2nd  and 3rd defendants on 18th  and 19th April 2011 which publications/utterances  she reproduced  in her paragraphs 6,7,8,9 of  the plaint.

In addition, the plaintiff alleges that the letter of dismissal of 5th May 2011 was defamatory of her.

In my assessment, the suit herein  having been filed on 3th May 2011, as against  the defendants for alleged  defamation constituting  of the utterances and or publication or write ups made on 18th and 19th April 2011 was statute  barred.

The suit  was filed  over twelve months  after the alleged  libelous  and or defamatory words  were allegedly  uttered  or published  by the defendants  concerning  the plaintiff.  The claim touching  on the alleged  libel published  or uttered on 18th April 2011 ought to  have been filed  by 19th April 2011  whereas the claim for  libel published  or uttered  on 19th April 2011  ought  to have  been instituted  by  20th April 2011.

In H. Ndegwa & Another vs David Onzere (2007) e KLR, M.K. Ibrahim J (as he then was) held that:

“ I think that it was improper  pleading  in a libel  suit for  different correspondences, articles  or publication  to be combined  to appear to be a single  article  or publication.  Each libelous article and publication constitutes a separate cause of action and the contents must be confined to that article.  It is not  proper for  one to pluck  various words, statements  etc from several articles  or publication and put  them together  and mix them up and  present  them as  the words complained  of.  Libel must be strictly proven by proof of the form in which they were contained and published including the dates etc.”

I concur  with the above  holding of Honourable Justice M.K. Abrahim and add that  the  plaintiff herein ought  to have had  a single letter  or write up  or record  containing  all the words complained  of and which  had been written and signed   by the defendants.  There is no evidence that the limitation period was extended by any court of law. A suit that is instituted out of the statutory limitation period ousts the jurisdiction of the court from hearing and determining such a dispute. And as jurisdiction is everything, without which, this court must down its tools and say no more. In Motor  Vessel “ Lilian S” v Caltex Oil(K) Ltd (1989) KLR 1 the court stated:

“ By jurisdiction is meant  the authority which  a court  has to decide  matters  that are before  it or take cognizance of matter presented  in a formal way for its decision.  The limits or this authority are imposed by statute Charter or commission under which the court is constituted and may be extended or restricted by the like means.  If no restriction or limit is imposed the jurisdiction is said to be unlimited.  A limitation may  be either  as to the  kind and nature  of the  actions and matters of which the  particular  court has cognizance  or as to the area  over which the jurisdiction  of an inferior  court or tribunal (including an arbitrator) depends  on the existence of a particular state of facts in order  to decide  whether  it has jurisdiction, but, except  where the court or tribunal has been given power to determine conclusively  whether  the facts  exist  where the court takes  upon itself  to exercise a jurisdiction  which it  does not  possess, its decision  amounts to nothing. Jurisdiction must be acquired before judgment is given …………”

Thus, without jurisdiction, a court of law acts in vain by purporting to determine a matter in dispute between the parties and in effect, amounts to nothing.

The only single letter is the dismissal letter of 5th May 2011.  The other alleged  defamatory  words  are contained in utterances  and write up  made on  18th April 2011  and  19th April, 2011 which  as I have stated were filed  out of the  statutory  limitation period  of 1 year and hence the same  are hereby accordingly struck out.

This case will therefore only proceed on the basis of the letter of dismissal which is dated 5th May 2011 and copied to the KUDHEIHA.

In her plaint dated 2nd May 2012, the plaintiff pleaded at paragraph 15 thereof that:

“ On or about dated  2nd May 2012  the 3rd defendant  maliciously  on dictated (six) to  Joyce  Kariuki, and  caused to be  printed  and circulated  and published  to members  of the executive committee  and to accounts, the personnel  and or Administrative  Manager  and to the Workers Union,(KUDHEIHA) and  to the shop steward  thereof  a letter of  and concerning  the plaintiff the following  terms:-

5th May 2011

Ruth Njiru James,

C/o Public Services Club

NAIROBI

Dear Ruth

RE: SUMMARY DISMISSAL

Reference  is made to our meeting  with you, Augustus  Kitonga, Zablon Kepha, Sarah Ndambiri( Account), Gerald Ngacha( Accounts) and Joyce Kariuki ( Administrative Assistant) in my office on 19th April 2011, and  our  meeting on 28th April 2011 with the Executive Committee  in the club and conference room  and your subsequent  letter dated  29th April 2011.

This is to inform you that the Executive Committee is convinced you colluded with your colleagues (Ben Onyiri and Augustus Kitonga) and stole from the club on various dates.

On instructions from the Executive Committee of the club I hereby notify you that you have been summarily dismissed from the employment of the club with immediate effect.

You are further instructed to return all company property in your possession forthwith.

Thank you.

Yours faithfully.

FOR PUBLIC SERVICE CLUB

KEN M. THAIRU

GENERAL MANAGER”.

Copies to: Executive Committee

Workers Union (KUDHEIHA)

Personal file

That is the  letter  and those  are the  words in that  dismissal letter which  the plaintiff pleaded  in her paragraphs  16,17 and 18  of the plant that  in their natural  and ordinary meaning, the words published  on the undated  write up of theft  cases  and on  the summary dismissal letter  dated 5th May  2011  served on  the plaintiff on 11th May 2011 at 1. 25pm meant  and were understood  to mean that  the plaintiff had been unfaithful  in the performance of her  duties  with  the Public Service  Club as an Assistant Accountant/IT Administrator Accountant/IT Administrator  and  had over a period  of over  one year  stolen  unquantified  or unquantifiable  sums of money  belonging to the Public  Service Club  as a consequence  she  had to pay  the ultimate  price  by summary dismissal  from employment and loss of her benefits  including  salary for days worked.

The plaintiff  further claimed  that the  said words  were calculated  to disparage  and they  did disparage  the her  in her burgeoning  career  as an accountant  and IT specialist  and in her employment  prospects  in those careers.  She further  claimed that in consequence  of the said  words  she was summarily  dismissed  and injured in  her credit, character and reputation and in her said career  she  has been brought  into hatred  and ridicule and has thereby  been unable to obtain alternative employment.

In her  testimony in court, the plaintiff  denied that  she ever  stole  any money  in collusion  with her  colleagues  as alleged  in her letter  of dismissal  as she  had explained in her letter  of 29th April 2011  and that she  was not  involved  in handling cash  but documentation.

Further, those books of accounts were removed from her office without her consent only to be shown cancelled cash books showing deposits.

She testified that she was never charged before any court of law for the alleged theft of club money and neither was she ever reported to the police for investigations.  Further, that it  was unusual to see books   of accounts cancelled  the way she  saw hers done  and that  no audit  was ever  carried out  before she  was served  with allegations  of theft  and publications  including  the letter of  dismissal which she produced in evidence.  She testified that the defendants acted maliciously by alleging that she had stolen money from the club yet there was no audit report or a report made to the police.

The plaintiff  further testified  that there  had been false  allegations leveled  against her  and her colleagues  that they had been responsible  for the sacking  of the  former  manager  and that she  and her colleagues  were threatened  with sacking  before  the managers could be sacked.  Further, that she was asked to resign if she was undertaking studies but instead, she decided to work for 3 days and nights a week.  She accused the 3rd defendant of planning to terminate her services so that he could work with a friend close to him.

The plaintiff also accused the manager  who is the 3rd defendant hereto for intimidating her for refusing to approve his Sacco Loan application without a guarantor.

She stated that she was the treasurer for their Sacco Society and could not have allowed a member to be granted a loan without guarantors.  The plaintiff testified that she could not get alternative employment because her reputation had been ruined.  That  she applied for  a job in another club but  she never got  the job and  suspected  that the dismissal  letter in  her personal  file must have affected  her prospects of  getting another  job as the prospective  employer  would make inquiries  from her former  employer.

She further  stated that  her former colleagues  and friends  and family members  keep asking her  why she  had never gotten  employment  and they still think  it is because  of the alleged  theft.  She complained that despite clearing with every department after her summary dismissal she was denied her certificate of employment.  She maintained that the utterances and publications against her were baseless   and false and that she was never given a hearing.  She stated that  she has suffered  mental torture for the false  allegations  in her personal  file at  the club for  reference  and cannot get  employment because  of the  said false  allegations.

The plaintiff sought compensation in damages for defamation and costs of the suit and interest and produced a bundle of documents as her exhibits as her P exhibit 1.

PW2, Humprey Maina  Gatuturi  testified that he  had known the plaintiff for  13 years  as they met at  the Public  Service Club  where he worked as a barman  and rose to a Supervisor and the plaintiff  found him there.  PW2 testified that the club used to sell alcoholic drinks, soft drinks and food.  According to the  witness, it is the  bartenders   who used to  sell drinks  and food  and receive money from  customers  which they  would then surrender  to the cashiers who  would  in turn  surrender  to the accountant.  That bill went directly to the cashiers while accountants would remain behind to work between 5pm-6pm.  That as the services continued until later upto 1. 00am, the bartenders would securely lock the money in a drawer until the following morning/day.  He confirmed that the plaintiff was employed as an accounts clerk but rose to the position of assistant accountant   and also worked as an IT personnel.  He also  confirmed that the plaintiff  was sacked  on allegations that she  had colluded  with others to  have the money  yet there  was no  physical  audit  of cash at  hand or bank.  He  also denied  ever being  questioned for  the alleged  loss and  neither  were there  any investigations  conducted  by the management  concerning the alleged  theft.  He testified that the manager never employed any internal mechanisms to resolve the matter and that he had blacklisted some staff members who played a role in having some managers sacked.  The witness also  confirmed that  at the material time, he was  the chairman  of the Sacco  while Ruth  was the  treasurer  and that when the manager  applied  for a loan of  shs 300,000  without guarantors  and on being denied on account of lack of guarantors, he got annoyed  and refused  to get signatures   of his junior staff.  PW2 maintained that the alleged theft was never reported to the police for investigations.  He concluded that the allegations leveled against Ruth were malicious and damaging as she had been unable to secure employment because of the referrals to the club and the union.

At the close of the plaintiffs case, counsel Mr  F.N. Wamalwa  filed written  submissions  and authorities  to  guide the court  in determining  the claim.

Mr Wamalwa submitted on behalf of the plaintiff that (material to the letter of dismissal dated 5th May, 2011 only); that there was absolutely no justification for the allegations leveled against the plaintiff in the letter of dismissal. He reiterated her testimony in court, pleadings and her documentary evidence.  He  submitted that there  was no incriminating  evidence  against the  plaintiff to warrant   her dismissal  as she never handled  cash but documentations. Further, that  as a club  it should have reported to the police the alleged  thefts to be investigated  by an  independent  public body  and failure to do so is deliberate  and evidence  of malice  and done to  justify the summary dismissal  of the  plaintiff.

Counsel submitted  that further evidence of  malice against  the 3rd defendant is  underscored  by his arbitrary demand that the  plaintiff perform a cashier’s duties  for 17 hours  shift up to midnight  even though  he was informed  by the plaintiff  that she  was a  single mother nursing a newly born child.  It was also submitted that the actions by the defendants affected the plaintiff’s progress   as she could not complete her studies in IT at Inoorero University following her loss of employment and income.

The plaintiff’s counsel further submitted that despite demand and notice of intention to sue, the defendants refused to respond and or make an apology for the defamatory utterances hence, the suit herein.

He accused  the defendants  of authoritarian  arbitrary  behavior  of a public body  and further urged the court to find  that the  defendant’s conduct in  failing to file defence  or apologize or retract  the defamatory allegations  left  the allegations unmitigated  which had  injured the plaintiffs reputation and feelings as she cannot get  alternative employment  since the defendants  refused to issue her  with  a certificate  of service  commendation .

Counsel accused the defendants of being reckless yet refusing to rebut the plaintiff’s claims.  He relied on the case of Gicheru vs Morton & Another (2005) 2 KLR 332 Tunoi JA dealing with the issue of damaged reputation opined at page 340 and 341 thus:-

“The latitude in awarding damages in an action for libel in very wide……

In an action for libel  the trial court in assessing  damages  is entitled  to look  at the whole conduct  of the defendant  from the time the libel  was published  down  to the verdict  is given.  It may consider what his conduct has been before action, after action, and in court during the trial: Praud vs Graham 24 QBD 53, 55:”

Counsel  also cited  Broom vs Cassel & Co. (1972) AC 1027 where the  House of Lords  stated that:

in actions of defamation and in other actions where  damages  for loss of reputation are involved, the  principle  of restriction in intergrum  has  necessarily an even  more highly  subjective  element.  Such actions involve a money award which may put the plaintiff in a purely financial sense in a much stronger position than he was before the wrong.  Not  merely can he  recover  the estimated  sum of his  past  and future losses, but in  case the  libel, driven underground, ,emerges  from  its linking  place at some future  date, he must  be able to  point  to a sum  awarded  by a jury sufficient to convince  a by stander  of the baselessness  of the charges.”

Mr F.N. Wamalwa also relied  on the  decision  in Uren vs Jolum Fairfax  & Sons Pty Ltd 117 CLRY 15,150 as  cited with approval by Tunoi JA that:

“It seems to me that, properly speaking a man defamed does not get compensation for his damaged reputation.  He gets damages because he was injured in his reputation that is simply because he was publicly defamed.  For this reason, compensation by damages operates in two ways:  - as a vindication of the plaintiff to the public and a consolation to him for wrong done.  Compensation is here a solatium rather than a monetary recompense for harm measurable in money.”

Comparing awards  made in Gicheru vs Morton & another case ranging from 1. 5 million  to 30 million, the plaintiff’s counsel urged this court to award  the plaintiff kHz 20,000,000 as reasonable  Solatium alluding to award  of shs 10,000,000 by Khaminwa  J to Musinga  Advocate  and shs 20m to Charles Kariuki Advocate regarding  defamatory  slurs on their careers (no citations provided for the  two cases referred to above).

Analysis and Determination

I have carefully  examined the plaintiff’s  pleadings, her  testimony  in court and as adopted from her  statement  as well as  the evidence  contained  in the documents  produced  in court in support  of her case  and  the evidence of the plaintiff’s witness.  I have also carefully considered the plaintiff’s advocate’s submissions and the authorities relied on and submitted to court.  The plaintiff did not frame any issues for determination.  However, from the pleadings and evidence adduced, there are three main issues for determination

1.    Whether the letter of summary dismissal dated 5th May 2011 addressed to the plaintiff was defamatory/libelous of her.

2.    If the answer to (1) above is in the affirmative, what damages is the plaintiff entitled to.

The plaintiffs evidence  is that  the letter dated  5th May 2011 addressed  to her and copied  to the executive committee members  of the 4th defendant  and KUDHEIHA was defamatory as it contained  false  and malicious libelous  allegations against  her that  she had  colluded with her colleagues  to steal money  from the club.

According to the plaintiff, she never used to handle any cash and that she only dealt with documentation a fact which the defendants knew or ought to have known.  Further, that the alleged theft was never investigated or even reported to the police to question her hence the letter was written with malice and paint her as a thief, which has greatly affected her employment prospects.

To find whether the letter complained of, being a dismissal letter from employment, this court must define what defamation is.

Winfield and Jolowicz on tort (17th edition) page 815 states:

“ Defamation  is the publication of a statement  which reflects  on a person’s  reputation and tends to lower him  in the estimation  of right thinking members  of the society  generally or tends to  make them  shun or avoid him.”

It is not  disputed that the summary  dismissal made  allegations  against the plaintiff which  overtly  stated that  she was a dishonest  person in her accounting  duty; and she  had colluded  with her  colleagues  as named  therein  and stole  from the club  on various  dates.  The dismissal letter was written by the 3rd defendant general manager to the plaintiff.  The question is whether the summary dismissal letter was for circulation to third parties and therefore published.  The said letter was copied to the executive committee of the club, KUDHEIHA (the union that represents the hotels and or club staff). It was also copied to the plaintiff’s personal file.

In my view, the letter of dismissal was not published to third parties.  This is because the plaintiff did not deny in her testimony before court that she was a member of KUDHEIHA.  Neither  did she produce the Human Resource  Manual for the  4th defendant to demonstrate  whether  or not  the union  was entitled  to be notified  of any disciplinary action  that may be taken against  its members by the employer.

In my view, the letter  of 5th May 2011 was written  by the 3rd defendant on behalf  of the employer, in the  normal course of disciplinary  proceedings  as expected  by the defendants and  Human Resource Management policies  and procedures, which in my view, cannot amount  to publishing  of defamatory matter    concerning the plaintiff.

From the plaintiffs own defence, there had been allegations leveled against her and she was called upon to respond which she did respond on 29th April 2011 in writing.  The plaintiff admittedly   was issued with some write ups which were undated see page 5 of her bundle) on the theft cases.  From her own exhibits, her letters of confirmation dated 13th March 2009 was copied to the executive committee, club accountant and personal file.

In my most considered view, the  plaintiff’s remedy  for summary  dismissal, which she is  challenged  before this court  by way of defamation of character  is without merit. Her claim fell elsewhere, in the employment  and Labour Relations Court, for unlawful dismissal and or payment of her lawful dues  or even damages  or reinstatement.  That is a matter that  can only be adjudicated upon by  the Environment and Land Court as contemplated by Article 162(2) (a) and  165(5) (b) of the  Constitution of Kenya and  Section  12(1) of the Employment and Labour  Relations Act; 2011 ( as amended).  The demand notice dated 14th July 2011 and produced in evidence is clear that she was claiming from the defendants an explanation for unlawful termination of employment and not defamation of character.

Fortunately  for the plaintiff, her claim  under the employment  laws is not  statute  barred and therefore  she is  advised  to file her  claim in  the E.L.R.C for appropriate reliefs.

Albeit  on the face of it, the letter of dismissal produced  in evidence  and whose contents  I have  reproduced  in this judgment  appears defamatory  as it  alleges  that  she was culpable  for colliding  to steal money  from the club, in my view, the  said letter  would only be defamatory if it  was published  to third parties  and secondly, if it  was not an end product  of  the disciplinary proceedings being  employed  by the defendants (employer) to an employee.

The  summary dismissal letter was  written by Ken M. Thairu, the General Manager  of the Public  Service Club, on the clubs letter head, copied to     Executive  Committee, who are the policy/decision making body  for the unincorporated  Public Service Club, the 4th defendant, and who  can therefore  not sue  and or  be sued  in its own name.  The letter was also copied to the plaintiffs Labour Union and her personal file.

In my view, the dissemination of a letter of dismissal to the named individuals was on a privileged occasion.  I am  fortified  on this point by the decision  in Hunt  vs Great Northern Railways  Company (1891) QB 189 cited with  approval in  H.W. Ndegwa & Another vs David Onzere Eldoret HCC CA 156/2003  per M.K. Ibrahim(2007) e KLR where the principle underlying the defence  of qualified  privilege  was explicitly  defined.  Lord Esher expressed that a privileged occasion:

“………….arises if the communication is  of  such a nature  that it could  be  fairly  said that  those who  made it  had an interest  in making such a communication  and  those  to whom it was made had a  corresponding interest  in having it  having  it made  to them  when those  two things  co-exist , the occasion is a privilege  one.  In order for words to found the privilege, there must be a reciprocity of interest.”

In the  instant case, the author  of the impugned  letter  was  the General Manager  of the 4th defendant club. I have examined the plaintiff’s letter of appointment, confirmation and acting accountant. Those letters were all signed by the General Manager and copied to the Executive Committee and her personal file.  The letter promoting her to the post of of acting  accountant  dated  29th September 2009  was signed  by P.N. Muiruri  for Executive Committee  of the 4th defendant.

It is not denied that the defendants were the plaintiff’s employer.  That being  the case, indeed, all the defendants  were  bound by a contractual relationship of employer   and employee, with the  plaintiff, which contract  was through  the collective bargaining  agreement  between the plaintiff’s  employer –defendants and the plaintiffs Trade Union ( KUDHEIHA) and of  which the  plaintiff must have  been a member  as shown by her own advocate’s letter  of demand dated  14th July 2011  wherein  the complaint  was  copied  to the KUDHEIHA  stating that  the plaintiff’s purported  termination  of employment  by the General Manager   was without  any lawful basis  for doing so.

This court  cautions  itself  that it lacks  the necessary jurisdiction to delve  into  matters of  employee/employer  relationships, save for justifying the orders  that I am about to make.

It is undeniable that in an employer/employee  relationship, an employer   has a right  to  institute  investigations, to inquire into the conduct or performance of  an employee  and also to investigate  his or  her conduct in the cause of her/his employment  and institute  appropriate  action  including, in appropriate  cases, summary dismissal  for gross misconduct.

On the other hand, the employee has a  right to fair  labour practices  including the  right to be heard  on the allegations  and  the right to  sue for  wrongful dismissal  which right  the plaintiff has not  exercised  but she  nonetheless complains that she was  not  heard  and that  the letter  of summary  dismissal  was  contemptuous  and  therefore  defamatory  of her.

In my view, the plaintiff’s remedy lies  elsewhere  in the Employment and labour Relations Court which has necessary jurisdiction  to determine all those  issues  relating to employer/employee relationships, as this court cannot  grant orders  that  tend to determine  the rights of employees.

I reiterate  that the letter of dismissal of the plaintiff was privileged communication as it was  communicating  to her the decision of the Executive Committee  which was  convinced  that  the plaintiff had colluded  with her colleagues (Ben Onyiri and Augustus  Kitonga) and  that she stole from  the club on various  dates  and that she had accordingly been summarily  dismissed  from employment  with immediate  effect.

The contents  of the  summary  dismissal  letter may have  been false  and contemptuous, however, that is the only way an employer  can or could communicate  its findings  and decision to the employee.

In H.W. Ndegwa  & Another vs David Onzee (supra)  which matter was similar  to the plaintiff’s case  herein and  where the employer  copied the employee’s letter  of summary dismissal  to the Branch Secretary of the  Worker’s Union and the Chief shop steward   of the union of the defendant company, the court  held that:

“The union through its officials were entitled and had an interest to be informed of the out come of the disciplinary proceedings and the decision of the employer.  The defendant company as an employer was under a duty as per the collective Bargaining Agreement  to inform the Union of the said outcome ( that their member had  been found  guilty) and  the decision ( that  he had been  summarily  dismissed  for gross  misconduct).”

The court found that the employer had an unqualified privilege to share the findings and decision with the Worker’s Union.  In this case, if the  summary dismissal was a “ a mere excuse as her fate had  been sealed  long before  the outcome  of inquiries  or dismissal,”then I reiterate that the correct remedy would be found in the  Industrial Court.” The denial of certificate  of service too, is an issue that  can  be ventilated  before the right  forum, the E&LRC.

The summary dismissal letter had to be written or typed anyway from a draft form by a secretary and signed by the General Manager and copies made to her personal file by employees responsible for filing as appropriate.  That  in my view, cannot amount to libel as  there was a privileged  relationship in this case and  the communication  and publication  in the letter dated 5th May 2011 was written  and published  on a privileged accession.

The employer was under a duty to notify the plaintiff and her union of the decision reached.  It was also entitled to keep a copy of the letter in her personal file.  As the  decision  was  reached at by the Executive  Committee and the General Manager  was only  the disseminator of the decision, the decision  makers  too had to be notified that  indeed  he had executed  his duties  as directed.  That in itself is not defamatory.  In as much as  prove of malice  is not mandatory in libel cases, I find  that there was indeed  no evidence of  malice as  the General Manager  wrote and signed   the letter in  the cause of  and within  the scope  of his duties  and he could only  be sued  and successfully  so, if it  was shown that  the letter  was defamatory  and there was  malice to  deprive the communication  its privilege.

For those reasons, I find that the plaintiff has not proved her case on a balance of probabilities.  Although  there was no  defence filed  challenging  the claim herein instituted  by the plaintiff, the burden of proof  remained  with the plaintiff  as espoused  in Sections  107,108 and 109 of the Evidence Act.  In this case, I find that the plaintiff  did not  discharge  that burden of proving  that on a balance  of probabilities, there  was  material that was libelous  of  her.  Accordingly, I dismiss her case as filed against all the defendants.  I make no orders as to costs as the defendants did not participate in the proceedings.

Had the plaintiff been successful in her claim, I would have assessed damages for defamation of character.  That is an established principle of law as has been held in several decisions of this court and the Court of Appeal.  The principle  is grounded on the  understanding that   as this is not  the  final court, the plaintiff must be  made  aware of what she  would have  been  entitled  to, had she been successful in establishing  liability  against the defendants.  See Lei Masaku vs Kalpama Builders Ltd HCCA 40/2007 (2014) e KLR where Mabeya J held:

“There is   the issue of failure to assess damages.  It has been held time and again by the Court of Appeal that the court of first instance must assess damages even if it finds that liability has not been established.  To have casually dismissed the suit and fail to address that issue   of damages in this case is a serious   indictment on the part of the trial court.  Both the trial court and this court must assess damages as they are not courts of last resort.  Their decisions are appellable and the appellate court needs to know the view taken by the court of first instance on the issue of quantum.  To the extent that the trial court failed to assess damages, its judgment was a serious flaw and cannot stand.  It therefore behoves this court to assess quantum.”

The plaintiff’s  counsel proposed  an award of  general damages  in favour of the plaintiff amounting  to kshs 20,000,000, relying  on two decisions whose  citations were not  provided.  Both cases involved advocates of the High Court of Kenya as plaintiffs, a Mr Charles Kariuki and Mr Musinga advocates who are now judges of the High Court and Court of Appeal respectively.

It was submitted by Mr F.N.Wamalwa that the court  in the said two cases awarded the plaintiffs kshs 20,000,000 for defamatory slurs on their careers.  He  also referred  to the case of  Gicheru vs  Morton  where  the Court of Appeal enhanced  an  award  of kshs 2,000,000 to 6,000,000 in favour  of  the former  Chief Justice Evans Gicheru and it is in the same  Gicheru (supra) case where  the Musinga  and  Charles  Kariuki cases were cited for comparison.

To arrive at  what I would consider  fair  and reasonable  award, I would  draw  considerable  support  in the guidelines  in Jones vs Pollard (1997) EMLR 233,243 cited  with approval by the Court of Appeal in Gicheru vs Morton case (supra) that:

a)    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  repetition;

b)   The subjective  effect on the plaintiff’s  image and  feelings not only from the prominence  itself  but from  the defendant’s conduct thereafter  both up  to and  including  the trial itself;

c)    Matters tending  to mitigate  damages, such as  the publication  of an apology;

d)   Matters  tending  to reduce  damages; and

e)Vindication of the plaintiff’s reputation past and future.

Assuming that the matters complained of were false and defamatory of the plaintiff and were published of and concerning her, they would no doubt have lowered her in the eyes of the right thinking members of the society generally.  No employer would recruit a thief or dishonest person and more so, an accountant who would be entrusted with an organization’s financial resources.  Those words if they had not been published on qualified privileged occasion would have had a lasting negative effect  on  a young life  like that  of the plaintiff as  it would  diminish  her legitimate expectation  of building  a career  and eking a living out  of it.

I would therefore  in the circumstances  award  the plaintiff a sum of kshs 5,000,000 general damages for defamation  of character  to vindicate  the plaintiff to the public  and as a consolation to her for the  wrong done (solatium) rather than a monetary recompense for harm measurable  in monetary terms.

However as I have stated above, the plaintiff did not prove her case against the defendants.  Having dismissed her suit in whole, I award her nothing.

In the end, the plaintiff’s suit is dismissed with no orders as to costs.

Dated, signed and delivered in open court at Nairobi this 18th day of May, 2015.

R.E. ABURILI

JUDGE

18/5/2015

Coram R.E. Aburili J

C.C. Kavata

F.N. Wamalwa for the plaintiff.

No appearance for the defendant

COURT - Judgment read and pronounced in open court.

R.E. ABURILI

JUDGE

18/5/2015